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...
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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.
[Posted
February 27, 2003]
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