In the first major U.S. court decision on campaign finance since
enactment of the McCain-Feingold law, a New Orleans-based federal appeals
court yesterday barred Mississippi from enforcing a state campaign
spending disclosure law against the U.S. Chamber of Commerce.
The case arose during the 2000 campaign for state Supreme Court, when
Mississippi Attorney General Mike Moore began investigating the Chamber
for running election-season television ads praising certain candidates as
"fair and independent" without telling the state how much it was
spending.
The Chamber went to federal court to block Moore, arguing that its ads
were intended to discuss issues but did not explicitly tell residents how
to vote, and thus were protected by the First Amendment.
A U.S. district judge sided with Moore, saying the ads could be
interpreted only as an appeal for votes. But yesterday a unanimous
three-judge panel of the U.S. Court of Appeals for the 5th Circuit, which
has jurisdiction over Texas, Louisiana and Mississippi, concluded that
Moore had violated the Chamber's right to free speech because the ads did
not refer to the candidates with words such as "vote for."
"We recognize that the result we reach in this case may be
counterintuitive to a common-sense understanding of the message conveyed
by the television political advertisements at issue," Judge E. Grady Jolly
wrote for the court. "Nevertheless, the result is compelled by the First
Amendment as interpreted by the Supreme Court."
This was a reference to the high court's 1976 decision in Buckley v.
Valeo, which upheld government regulation of campaign contributions
but exempted independent expenditures on political ads as long as the ads
do not engage in "express advocacy" of a specific candidate's
election.
McCain-Feingold would address that aspect of Buckley by
regulating what the law's supporters call "sham" issue ads during election
season. But opponents of the new federal law say these rules would
eradicate categories of legitimate political expression and will be struck
down if, as seems probable, their challenge to the law reaches the U.S.
Supreme Court.
Opponents of McCain-Feingold said the 5th Circuit's opinion reinforces
the bright-line distinction between "express advocacy" and more general
political speech that was laid down in Buckley.
"It's one more case in a long line of cases that suggest the government
can't regulate this kind of speech at all, and McCain-Feingold tries to
ban it by certain groups," said Jan Baran, a Washington lawyer who
represented the Chamber and is assisting Sen. Mitch McConnell (R-Ky.) in
his lawsuit challenging McCain-Feingold.
But supporters of McCain-Feingold noted that the Mississippi case is
not directly analogous to the new law, because it involved a state
government's attempt to fit certain ads into the existing definition of
"express advocacy," rather than to replace that concept as McCain-Feingold
does.
And, they say, the 5th Circuit itself noted that its application of
Buckley in this case would strike some as straining common
sense.
"The ads in this case were absolutely political ads," Moore said. "They
were almost copycat ads of the ones the candidates were running
themselves." Moore said the state might appeal to the Supreme Court.
In the Mississippi election, two of the Chamber-supported candidates
were defeated.
