D.C. District Court Protects Grassroots Advocates


PRESS RELEASE: December 21, 2006
Media Contact:   Bradley A. Smith (614) 236-6317 or (540) 287-8954


"D.C. District Court Protects Grassroots Advocates"

Arlington, Va. — "Today the D.C. District Court reaffirmed citizens’ rights to speak over the airwaves about political issues close to an election, and held that the government has no compelling interest in limiting such discussion," said Bradley A. Smith, former Chairman of the Federal Election Commission and Chariman to the Center for Competitive Politics ("CCP") a nonprofit organization that filed an amicus curiae brief in the United State Supreme Court on behalf of petitioners in an earlier phase in this litigation, Wisconsin Right to Life v. Federal Election Commission, 126 S. Ct. 1016 (2006).

Earlier this year the United States Supreme Court stated that by upholding the "electioneering communication provisions" of McCain-Feingold — a ban on broadcast advertising paid for with corporate or union treasury funds that mentions candidates within 30 days of a primary, caucus or convention, or within 60 days of a general election — against facial challenge the Court "did not purport to resolve future as-applied challenges" to protect grassroots lobbying.  WRTL v. FEC, 126 S. Ct. 1016, 1018 (2006).  The Supreme Court remanded the case to a three-judge panel of the D.C. District Court to determine whether the ad should be excepted from the electioneering communication provisions.  Today’s decision announces the three-judge panel’s determination that the ads are not covered by McCain-Feingold.

"We are grateful that the District Court recognized there are proper exceptions to the electioneering communications provisions and drew a meaningful distinction between grassroots lobbying and electioneering.  Senators pass laws at all times of the year.  The Court recognized that citizens shouldn’t be frozen out of the process just because an election approaches," said Smith, who also teaches law at Capital University Law School in Columbus Ohio.  

"We are encouraged that the Court reviewed the ads, recognizing that ads like these may have a short shelf life yet deserve the court’s consideration; they are capable of repetition yet evade judicial review," said Erik Jaffe, noted First Amendment expert, former Supreme Court clerk, and counsel to CCP in the case.  "We are equally encouraged that the Court considered objective criteria to determine whether the ads were the ‘functional equivalent of express advocacy;’ that is, whether they were intended to influence elections or had that effect.  The District Court recognized that ‘delving into a speaker’s subjective intentions is both dangerous and undesirable’, and did its best to constrain its analysis not to expert testimony or the motivations of the media vendors, but to the four corners of the ad itself," Jaffe said.

Joining CCP in last year’s briefs before the United States Supreme Court were the Cato Institute, the Institute for Justice, the Reason Foundation, and the Goldwater Institute.

The Center for Competitive Politics is a nonprofit organization co-founded by Smith and Stephen M. Hoersting, a campaign finance attorney and former General Counsel to the National Republican Senatorial Committee.  CCP’s mission, through legal briefs, studies, historical and constitutional analyses, and media communication, is to educate the public on the actual effects of money in politics, and the results of a more free and competitive electoral process.

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