Roundup: How free-speech issues fared in Nov. 3 elections

Wednesday, November 4, 1998

Outcomes of First Amendment-related ballot issues

First Amendment Center and The Associated Press
A state-by-state look at what voters decided on various referenda involving free expression, religious issues, petition, information access and campaign finance reform (the latter issue often involves free-speech issues).

Alabama: Narrowly approved religious-freedom amendment requiring the state to overcome a strict legal test before infringing, even incidentally, on anyone's religious freedom rights. Congress codified the same tough test in the Religious Freedom Restoration Act of 1993 that was struck down by U.S. Supreme Court last year.

Arizona: State funding for campaigns won a referendum.

District of Columbia: The city's board of elections, bowing to congressional pressure, did not release results of referendum to legalize marijuana for medical purposes. The ACLU had already filed suit to overturn the board and release the election results.

Idaho: Out-of-state interests spent $367,000 in successfully persuading voters to reaffirm support for term limits they imposed in 1994 on offices from school board to governor.

Massachusetts: Voters approved public financing for election campaigns.

Mississippi: Barred out-of-staters from circulating petitions to get initiatives on state ballot.

New York: Banned corporate donations in city campaigns, giving Mayor Rudolph Giuliani victory in long-running political battle with the City Council.

Virginia: Approved constitutional amendments to allow legislature to decide what information will be made public when a judge's conduct is investigated.

Wyoming: Approved constitutional amendment that makes it harder to get initiatives on state ballot.

WASHINGTON — Supporters of a U.S. constitutional amendment that would outlaw flag desecration still appear to be a handful of votes away from a victory in the Senate after yesterday's congressional elections.

(However, The Citizens Flag Alliance, which favors a flag-protection amendment, is claiming a minor victory in the Senate elections. Also see Who favors, who opposes flag amendment.)

That flag-amendment supporters are perhaps only a little closer than they were at the close of the 105th Congress in October is surprising given the number of Democratic opponents of the amendment who were up for re-election, and how many other races involving GOP supporters were supposed to be safe seats but proved to be something else entirely.

The Senate vote totals on the proposed amendment may change by only one even though two “no” votes against the flag amendment — Sen. John Glenn, D-Ohio, who retired, and Sen. Carol Moseley-Braun, D-Ill., who was defeated — are gone, replaced with likely “yes” votes. Balanced against those changes are the loss of three strong supporters of the amendment: Sen. Lauch Faircloth, R-N.C., Sen. Alfonse D'Amato, R-N.Y., both of whom were defeated, and Sen. Dan Coats, R-Ind., who retired.

D'Amato's replacement, Rep. Charles Schumer, D-N.Y., is a strong liberal voice and longtime member of the House Judiciary Committee who has consistently voted against efforts to outlaw flag burning. Coats will be replaced by former Indiana Gov. Evan Bayh, a moderate Democrat who is considered likely to vote for the flag amendment, although his position could not be confirmed.

If North Carolina Democrat John Edwards, a wealthy trial lawyer who unseated Faircloth, were to vote against the flag amendment, supporters would find themselves four votes short of passing the proposal. Even if Edwards were to vote for the flag amendment, supporters would still be no closer than two votes to the 67 required for passage because of the results of some other hard-fought races that were regarded as critical by the pro-amendment forces.

In Washington state, Sen. Patty Murray, D-Wash., outdistanced Rep. Linda Smith, R-Wash., and will remain an anti-flag amendment vote despite some heavy pressure from veterans groups and the Citizens Flag Alliance. And Sen. Byron Dorgan, D-N.D., who along with his North Dakota colleague, Democrat Kent Conrad, were the only two senators to be listed as undecided on the flag amendment, survived his re-election race. Dorgan, too, had been subjected to intense pressure from veterans groups but was believed by opponents of the flag amendment to be leaning against the proposal.

And in Utah, Robert Bennett, one of only four Republican senators listed as opponents of the flag amendment, also won re-election.

Other First Amendment, free expression, campaign and related 1998 election news and notes from around the nation:

Voters appear to back campaign finance reforms
Yesterday's results also sent a strong message on campaign finance reform. Sen. John McCain, R-Ariz., one of the key sponsors of efforts to reform campaign spending laws, won re-election, as did his co-sponsor, Sen. Russell Feingold, D-Wis. Feingold's victory was extremely significant since he had refused to use any “soft money” contributions to finance political ads on his behalf, even from the Democratic National Committee, while his opponent benefited from a massive influx of special-interest money and had been all over the airwaves with negative advertisements.

A candidate's position on campaign finance also came into play in the Washington state senate race, but in a most unusual way. Sen. Mitch McConnell, R-Ky., one of the Senate's leading opponents of campaign finance reform, was the head of the National Republican Senatorial Committee, meaning he had charge of millions of dollars in campaign aid for GOP candidates. But in Washington state, the Republican challenger, Linda Smith, angered McConnell with her strong support of campaign finance reform, so he denied her the funding he could have — and critics say should have — sent her way.

As a result, Smith did not have the money to advertise heavily in the closing weeks of the campaign. That, as much as anything else, kept her from making a stronger run against the incumbent Murray, who early on was thought to be highly vulnerable.

Religious Freedom Amendment passes in Alabama
Alabama voters narrowly approved a Religious Freedom Amendment, the first state to pass such a measure. It will require the state to overcome a strict legal test before infringing, even incidentally, on anyone's religious freedom rights. Congress codified the same tough test in the Religious Freedom Restoration Act of 1993 that was struck down the U.S. Supreme Court last year.

State legislatures in Illinois, Florida and California have adopted state versions of the act, though not amendments to their constitutions. But California Gov. Pete Wilson vetoed it and Illinois Gov. Jim Edgar sent it back to lawmakers for changes. Opponents in Alabama said the measure would permit churches to evade reasonable zoning laws in areas like building construction and the location of parking lots. But advocates said it would prevent government from interfering with practices such as minors' receiving wine as part of a communion service.

Friend of the First Amendment returns to Senate
Despite lopsided news coverage devoted to his colorful opponent, U.S. Senator Patrick Leahy handily won re-election to his fifth term as a Democrat representing the state of Vermont. Leahy won 72% of the vote to 23% for his Republican opponent, Fred Tuttle, a 79-year-old dairy farmer who played the lead role in a movie about a man who ran for Congress because he couldn't make it on the farm.

Sen. Leahy is one of the most consistent of the First Amendment's friends on the Hill. He has worked to expand access to information, helping to fight off attempts to water down the Freedom of Information Act and sponsoring the Electronic Freedom of Information Act signed into law two years ago. Leahy also was one of the most vigorous opponents of legislation regulating speech on the Internet; that legislation eventually became the Communications Decency Act that was struck down as unconstitutional by the Supreme Court.

At the end of the current session, Sen. Leahy along with Sen. Bob Kerrey lodged a parlimentary objection to a request for unanimous consent to bring the flag-desecration amendment to the Senate floor, effectively killing the measure for the term.

Conservative Christians lose two gubernational 'heros'
Conservative Christians lost two of their heroes when Alabama Gov. Fob James and South Carolina Gov. David Beasley lost their bids for re-election yesterday.

In both races, an educational lottery — popular with most voters, but opposed by many religious conservatives — was a key factor in determining the outcome. By opposing the lottery, James and Beasley held onto their base of support, but handed their opponents a winning issue. James was further hurt by his insistence that the First Amendment didn't apply to the states, a view that endeared him to advocates of organized school prayer but struck many voters as too extreme and divisive.

Is a preview of the future?
With too little money for an expensive media campaign, Jesse Ventura's successful campaign for Minnesota governor focused on the lowest of low tech — personal appearances — and heavy reliance on the Internet. The Ventura Web site featured information now common to most candidates' sites: Ventura's biography, Ventura on the issues, Ventura's schedule, and how to volunteer for Ventura.

But the site also featured a category rapidly increasing in popularity among candidates — how to contribute to the Ventura campaign. The site even has instructions on how to get your campaign contribution refunded by the state of Minnesota. And there was JesseNet, an organizing tool that focused volunteer activity and outreach, using the Internet to reach voters at a far lower cost than handbills or bulk mail. These tools were used in 1996 by third-party campaigns, notably of the Libertarian Party, but the Ventura campaign is the first one in which Net-based organizing was such a major factor, precisely because, as with most third-party candidates, he had very little money.

The news media in Minnesota may also have played a role: the Minneapolis Star-Tribune, WCCO-TV and other leading newsrooms around the state heavily promoted their online coverage. And Minnesota's e-Democracy public information site was one of the most praised and discussed political information sites on the Web.

And of course last night, the Ventura election night headquarters transmitted the victory party continuously via live audio over the Internet, so supporters could join the party from all over the state — or the world.

D.C. keeps referendum taly secret
In the District of Columbia, voters cast referendum ballots on a law to make medical marijuana available to serious ill people. But the Board of Elections and Ethics decided yesterday to keep the results secret. The board cited congressional action barring the District from spending any money on initiatives involving legalizing drugs or reducing penalties for drug use. The board said it would seek court guidance on “Initiative 59,” and the ACLU has filed a lawsuit seeking to prevent Congress from voiding the election results.