FEC cannot draft rules making campaign reform constitutional

August 29, 2002

ATLANTA/WASHINGTON, DC: The Southeastern Legal Foundation today released its legal statement to the Federal Elections Commission, which has solicited comments on its rulemaking process regarding the so-called McCain-Feingold Bipartisan Campaign Reform Act (BCRA). SLF, as co-counsel with Judge Kenneth Starr, represents a group of plaintiffs (including SLF) in McConnell, et al v. FEC, FCC, the consolidated federal constitutional lawsuit challenging BCRA.

SLF makes clear in its statement, which will be available today at www.southeasternlegal.org, that "SLF believes that the statutory provisions concerning "electioneering communications" are plainly unconstitutional, and that these provisions [banning issue advocacy within certain time limits and 'electioneering-related' communications at any time by advocacy groups] therefore may not be saved from unconstitutionality by the FEC's proposed regulations."

Further, in the context of FEC proposed rulemaking, SLF attacks the BCRA's mandate to the FEC to enact enforcement rules as an impossible task. "Especially in the context of the First Amendment, where the chilling effect of constitutionally protected speech is of paramount concern, this state of affairs is impermissible. The right to engage in activities protected by the First Amendment cannot be left to the whim of an administrative agency by statute that is readily susceptible to unconstitutional construction."

"Millions of Americans who pool their resources through hundreds of organizations to make their voices heard in the public marketplace of ideas and opinions will effectively be silenced by McCain-Feingold," said Phil Kent, SLF President. "Our attorneys - poised to argue in court this December - are today reminding the FEC that the ability to openly criticize and challenge government in the public arena is utterly protected by the First Amendment."

Kent points out that congressional attorneys reviewing McCain-Feingold expressed grave concerns about the constitutionality of several provisions of the law, which include bans on issue advocacy advertising 60 days from a general election and 30 days from a primary. "Those who seek greater regulation seem to view the First Amendment, not as a protection to citizens from government regulation of political speech, but rather as a 'loophole' to be closed...." Adverse Report Together With Minority Views, Bipartisan Campaign Reform Act of 2001, July 10, 2001.

McConnell's lawsuit raises a host of critical constitutional questions regarding McCain-Feingold, pointedly referring to the new law as a vehicle "creating a new crime of incitement to political action."

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