Anti-abortion group again fails to halt FEC rules

Wednesday, August 12, 2009

A conservative group that purported to tell “the real truth” about Barack Obama’s views on abortion during last year’s presidential campaign suffered another legal setback last week.

The Real Truth About Obama had sought an injunction from the 4th U.S. Circuit Court of Appeals to halt enforcement of campaign regulations that the Virginia-based nonprofit contends violate its First Amendment rights.

Incorporated on June 24, 2008, the anti-abortion group six days later filed suit against the Federal Election Commission and the Department of Justice. Real Truth is challenging three FEC regulations and an enforcement policy that regulates the contributions to and expenditures by political action committees. Real Truth said it filed the lawsuit “because it reasonably believes that it will be subject to an FEC and [Department of Justice] investigation and possible enforcement action potentially resulting in civil and criminal penalties.”

Before a federal district court, Real Truth sought a preliminary injunction that would have prevented the FEC from enforcing the challenged regulations and policy before trial. The regulations include one defining “expressly advocating” for a candidate; one defining campaign contributions as funds “to support or oppose the election of a clearly identified Federal candidate”; and one dealing with corporate and labor organization funds for similar purposes.

The FEC enforcement policy in question concerns how the agency determines whether a group qualifies as a PAC by looking at the “major purpose” of the group. Real Truth contended that the FEC regulations and policy were overbroad and vague in violation of the First Amendment.

In September 2008, U.S. District Judge James Spencer denied the group’s request for relief. Last week, a three-judge panel of the 4th Circuit unanimously affirmed Spencer’s ruling.
The panel determined that the group had not — at this early stage of the litigation — made a “clear showing that it is likely to succeed on the merits at trial.”

The panel acknowledged in its Aug. 5 opinion in The Real Truth About Obama v. Federal Election Commission that “the regulation of speech related to political campaigns remains a difficult and complicated area of law that is still developing.”

The panel relied on the Supreme Court’s 2007 decision in FEC v. Wisconsin Right to Life (2007), in which the justices ruled that provisions of the Bipartisan Campaign Reform Act could not be constitutionally applied to an anti-abortion group that ran issue-advocacy ads rather than those that are the functional equivalent of “express campaign speech.”

The Court noted that when “an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” the ad can be regulated as express advocacy. The 4th Circuit panel quoted the Supreme Court and ruled that the provision challenged by Real Truth applied only to express advocacy, not pure issue ads.

The 4th Circuit panel also found that Real Truth could not make a “clear showing” that the other provisions violated the First Amendment, though it noted that it was not deciding the “ultimate merits” of the case. The case now goes back down to the federal district court for further proceedings.

In an Aug. 7 news release, the FEC restated its position that the “regulations at issue are entirely consistent with Supreme Court precedent and thus do not unconstitutionally infringe on RTAO’s rights or exceed the Commission’s statutory authority.”

“We will seek en banc (full panel) review of this decision,” said RTAO attorney James Bopp Jr. “The opinion is directly contrary to at least three different opinions of the 4th Circuit.”

Bopp added: “I read the Supreme Court’s decision in Wisconsin Right to Life as a strong move toward invalidating campaign finance reform, but the panel took the opposite approach.

“Also, the standard employed by the panel with respect to obtaining a preliminary injunction makes it impossible to ever obtain one,” Bopp said.