Just one month earlier, a different panel of judges on the Ninth Circuit withdrew an earlier panel decision that upheld a Montana initiative imposing strict limits on campaign contributions... A New Ninth Circuit in the New Year?

It appears that the Ninth Circuit's New Year's resolution is to decrease the number of rulings overturned by the United States Supreme Court. Only two months into the New Year, the traditionally rogue Ninth Circuit has issued two opinions in the campaign finance arena that are remarkably deferential to Supreme Court precedent and leanings.

This week, a three-judge panel of the Ninth Circuit ruled that Arizona's effort to curb negative political advertising imposes a severe burden on political speech and violates the First Amendment because it is not "narrowly tailored to serve a compelling state interest." The "well-intentioned" Arizona law contained, among other provisions, limitations on the timing of political advertising and a requirement that a political action committee advocating the election or defeat of any candidate must mail a copy of the communication to the candidate at least twenty-four hours in advance if the advertisement appears within ten days of an election.

The court noted that because plaintiff Arizona Right to Life PAC was forced to modify its speech and behavior in order to comply with the statute, it had standing to sue thereunder. Applying strict scrutiny in its analysis of the application of the First Amendment to the restriction on the political speech, the court found that this “‘built-in delay mechanism' prevents the timely exercise of First Amendment rights and prohibits spontaneous political expression." Because the regulation applied only to independent expenditures made by PACs, the court also concluded that the advance notice requirement discriminated against PACs.

The court disagreed with Arizona's claims that the statute is narrowly tailored to advance a compelling government interest in controlling negative advertising campaigns, and noted that the Arizona restriction was "especially cumbersome in the Internet age." The court started the opinion by writing that "[n]egative political advertising is nothing new," and concluded by stating that "the statute puts the state at the crossroads of political speech and in the role of a First Amendment traffic cop - a prospect that raises red flags, if not red lights."

Just one month earlier, a different panel of judges on the Ninth Circuit withdrew an earlier panel decision that upheld a Montana initiative imposing strict limits on campaign contributions, including an aggregate limit on political action committee donations. In a brief order, the panel reconsidering the case ruled that the earlier decision in Montana Right to Life Association v. Eddleman "may not be cited as precedent by or to this court or any district court of the Ninth Circuit." The withdrawn decision had held that a state's interest in purging corruption and the appearance of corruption from its electoral system was sufficiently important to withstand constitutional scrutiny and that the limitations on campaign contributions were closely tailored.

In a related, but separate, opinion the panel directed attorneys to brief the impact of a case pending before the Supreme Court. In Federal Election Commission v. Beaumont (No. 02-403), the Court is considering a Fourth Circuit Court of Appeals opinion that a federal ban on corporate contributions in federal elections is unconstitutional and that, with respect to nonprofit advocacy corporations, there is no legitimate distinction between expenditures and contributions.

Oral arguments in the Beaumont case are scheduled for March 25, 2003. The Ninth Circuit, as well as many others, will be closely watching this case as a precursor for what to expect in the significantly larger lawsuit challenging the federal McCain-Feingold legislation, a case once expected to come before the Supreme Court this term. The likelihood of the Court getting the opportunity to hear, much less resolve, the McConnell v. FEC case, in which the Center for Individual Freedom is a plaintiff, is becoming highly unlikely even under the expedited process for judicial review because the special three-judge panel has not yet rendered its decision and the Court's schedule is quite full for its current term.

To read more about the Center's challenge to the McCain-Feingold law, click here.

February 27, 2003
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