Supreme Court Hears Arguments Today in Challenge to Campaign Finance Law

September 8, 2003 12:00 am

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ACLU Says Law Could Block Advertisements on PATRIOT Act “Sneak and Peek” Provisions


NEW YORK – The United States Supreme Court will hear four hours of argument today in a challenge to key provisions of a 2002 campaign finance law that impose unprecedented restrictions on core political speech and issue advocacy.

The American Civil Liberties Union is part of a broad coalition that challenged the law’s ban on free speech grounds. While the Justices will hear arguments on numerous problems with the law, the ACLU’s legal brief focuses on whether Congress violated the First Amendment when it prohibited even non-partisan organizations like the ACLU from broadcasting ads on issues of political significance during campaign season.

“The campaign finance law, if upheld, would dramatically transform the rules of political debate in the country and go far beyond anything the Supreme Court has ever permitted under the First Amendment,” said ACLU Legal Director Steven R. Shapiro.

The question of political debate, Shapiro noted, is not hypothetical. The ACLU has recently raised new funds to be used, in part, for broadcast ads designed to promote the organization’s legislative agenda. For instance, the ACLU recently aired radio advertisements in Alaska, New Hampshire, Texas, Utah and Vermont in which they asked listeners to call their senators and urge them to stop “sneak and peek” searches under the PATRIOT Act. The ACLU advertisement can be found at /SafeandFree/SafeandFree.cfm? ID=13440&c=206

The advertisements did not take any position for or against the lawmakers whose names were mentioned. Yet, under the new campaign finance law, those ads would be illegal if they were broadcast within 30 days of a primary or 60 days of a general election, the ACLU noted in legal papers.

“By targeting such classic political speech, the new campaign finance law is directly at odds with the core First Amendment holding of Buckley v. Valeo, the Supreme Court’s landmark decision on campaign finance reform, which the ACLU helped litigate a quarter-century ago,” said Mark Lopez, an ACLU national staff attorney who co-authored the ACLU’s brief.

The ACLU also took issue with Congress’ solution to reclassify the ACLU and thousands of other non-partisan groups – like the Sierra Club, NOW, AARP and NRA – as a “political committee.” “The organization cannot be required to forego its independence?in order to participate in the debate over the direction of this country,” the ACLU said in its reply to the government’s legal brief in the case.

Other provisions challenged in the suit, including the soft money restrictions, infringe the speech and associational rights of individuals, parties, candidates and groups. However, the ACLU said in its legal brief, “because the ACLU is not directly affected by the soft money ban, we will leave it to others to explain why the continued prohibition on the use of soft money for issue advocacy is unconstitutional.”

The case is ACLU et al. v. Federal Election Commission et al, No. 02-1734.

In addition to Shapiro and Lopez, attorney Joel M. Gora of Brooklyn Law School is a co-author of the ACLU briefs. Gora argued the ACLU’s position before the Supreme Court in the landmark campaign finance case Buckley v. Valeo.

The ACLU’s legal brief is online at /node/37492

The ACLU’s reply brief to the government is online at /node/

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