Hawaii pro-life group can air ads, judge rules

By The Associated Press

11.27.02

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WASHINGTON — A federal judge cleared the way for a Hawaii anti-abortion group to begin airing its ads in a special election this week, handing a setback to the government's early efforts to enforce the nation's new campaign-finance law.

Without ruling on the broader constitutionality of the law and its restrictions on political ads, U.S. District Judge Henry Kennedy yesterday granted a temporary injunction that allows Hawaii Right to Life to air commercials leading up to the state's special congressional elections on Nov. 30 and Jan. 4.

The group hailed the victory and said the ads would begin running today.

"It is unbelievable that in America a group that has $8,000 worth in income a year has to come to a federal court to get permission to mention the name of a candidate" in its advertising, said James Bopp Jr., a lawyer for the anti-abortion group.

The new campaign-finance law restricts "issue ads" that clearly identify a candidate for federal office within 30 days of a primary and 60 days of a general election. Several groups have challenged the constitutionality of that and other provisions in a separate lawsuit to be heard next week in Washington by a special panel of three federal judges.

While the Hawaii antiabortion group contends the new restrictions on political ads are unconstitutional and would have prevented it from expressing its views on the elections, it won the injunction by focusing on a narrower issue.

Kennedy, who was appointed by former President Clinton, agreed with Hawaii Right to Life and ruled it was a "qualified nonprofit corporation" that by law should be exempt from the government's new political ad restrictions.

He concluded the Federal Election Commission's definition for such nonprofit groups was too narrow and wrongly excluded the Hawaii group. He said the anti-abortion group qualified for the exemption because the group had received only $50 in corporate contributions.

The judge said the issue of the constitutionality of the new restrictions should be saved for "another day."

The FEC had argued Hawaii Right to Life should be treated as a political-issue advocacy group covered by the new advertising limitations. The campaign finance law, which took effect Nov. 6, puts new limits on political donations and advertising.

The provision of the new campaign law at issue in the Hawaii case prohibits a range of interest groups from airing political ads that mention federal candidates during periods close to elections.

The law's cornerstone is a ban on unlimited "soft money" contributions from unions, corporations and others to national party committees and the use of soft money in federal elections.

In welcoming the ruling, Bopp said, "This is an important issue to advocacy groups and their role in the political process."

Though it lost, the FEC said the judge's ruling was narrow and noted that other courts were considering the broader constitutional issues of the new law. FEC attorney Stephen Hershkowitz said the ruling did not set a precedent.

"This is an ongoing debate ... at the commission about the appropriate way to interpret the Massachusetts Citizens for Life decision," Hershkowitz said, referencing the 1986 Supreme Court ruling that defended the free-speech rights of nonprofit advocacy groups to air commercials for or against federal candidates.

A three-judge panel in Washington is considering several lawsuits that say the new law is unconstitutional and should be overturned. Those suing include the National Right to Life Committee, the AFL-CIO, the American Civil Liberties Union and the Republican National Committee.

Some lawyers involved in those cases welcomed yesterday's ruling but said it would not be consequential to the pending lawsuits.

"The Hawaii case wasn't a direct challenge to the statute as far as we're concerned, but at the end of the day I agree with the decision," said Alex Vogel, general counsel for the National Republican Senatorial Committee.

Kent Cooper, a former top FEC official, said part of the reason the court probably intervened was that the agency has spent much time on setting the new rules but "there has been no educational effort by the commission to get the word out as to what the rules are."

The Hawaii elections are to fill a vacancy created by the death of Democratic Rep. Patsy Mink and are the first conducted under the new law.

Related

Campaign-finance law heads to court
Meanwhile, Hawaii Right to Life asks federal judge to block enforcement of ad restrictions in the new law.  11.25.02