The Christian Civic League of Maine’s plan to broadcast a radio advertisement in support of the federal Marriage Protection Amendment to pressure that state’s U.S. senators to support it when Majority Leader Bill Frist brings it up for a vote next month ran into interference from the Federal Election Commission (FEC) Act, according to a unanimous May 9 ruling by a special three-judge federal district court.
The proposed advertisement—which criticizes Republican Senators Olympia Snowe and Susan Collins for having “unfortunately” voted against the amendment two years ago—conflicts with a rule against corporations using general funds to broadcast “electioneering communications” naming a specific candidate within a window of time prior to a federal primary or general election.
Snowe is running unopposed for re-nomination in the June 13 primary. The Christian Civic League wanted to begin broadcasting its ad on May 10, but the FEC Act blackout period began on May 13, so the group filed suit in the District of Columbia, arguing that its First Amendment rights were unconstitutionally burdened.
The judicial panel—Circuit Judge Judith W. Rogers and District Judges Louis F. Oberdorfer and Colleen Kollar-Kotelly—unanimously rejected the suit in a joint opinion.
The Supreme Court, the panel found, has upheld the blackout provision against prior challenges involving so-called “issues advertising,” taking the position that Congress had the power to protect federal elections from undue corporate influence and that the Christian League had alternative ways to communicate its message. The League lacked the money in its own coffers to fund the ad, so it relied on a donor, who could instead have given the money to a political action committee, which would face no ad purchase restrictions during the blackout period. Or, the League could advertise in Maine newspapers and magazines, since the FEC blackout applies only to broadcast media.
The League argued that radio was the most effective way to disseminate is message speedily, but the Constitution does not require a preferred method of speech be available at all times, as long as an alternative is available. The court noted that there would be irreparable injury to the FEC and the public interest if the ad were allowed to run while this controversy over the blackout period was being resolved, so the League’s petition for a preliminary injunction while it appealed to the Supreme Court was also denied..
The League requested an expedited review by the Supreme Court, but on May 15 the high court rejected that motion, so there will be no ruling before the June 13 primary date, which comes eight days after Frist has promised Senate action on the marriage amendment. The anti-gay amendment would require two-thirds support in both houses of Congress and then ratification by three quarters of the states, but it did not even garner a simple majority in the Senate in 2004.
—Arthur S. Leonard