Posted May 9, 2006 by Paul S. Ryan

Federal Court Denies Preliminary Injunction in Christian Civic League of Maine v. FEC

A three-judge panel of the U.S. District Court for the District of Columbia today denied the Christian Civic League of Maine’s (CCL) motion for preliminary injunction in CCL v. FEC.  The CCL sought to enjoin the enforcement of BCRA’s prohibition on the use of corporate general treasury funds to pay for “electioneering communications,” arguing that its proposed ad constitutes “grass roots lobbying” and may not constitutionally be regulated.

The Campaign Legal Center serves as part of the legal team representing defendant-intevenors Senators McCain and Feingold and Representatives Shays, Meehan and Allen.

The court noted that the CCL has conceded it could publish its proposed ad without running afoul of BCRA if it: (1) funded the ad through a PAC; (2) published the ad in a medium other than “broadcast, cable, or satellite; or (3) altered the script of the ad to refrain from clearly identifying Senator Snowe.  The court concluded:

"Given this concession, inter alia, we conclude that the League has established neither a substantial likelihood of success on the merits nor that it will be irreparably injured in the absence of the 'extraordinary remedy' of a preliminary injunction.  We therefore also conclude that the requested preliminary injunction would substantially injure the Commission and not serve the public interest.  Accordingly, . . . an accompanying Order denies the League’s motion for a preliminary injunction."

Memo Opinion at 4.

The court explained that the CCL “has not demonstrated a substantial likelihood of success on the merits.”  Id. at 8 (internal quotation marks omitted).  The court continued:  “the electioneering communications provision, even it its application to the proposed advertisement, appears narrowly tailored to serve a compelling governmental interest.  Particularly after McConnell, there can be no question that the governmental interest in maintaining the integrity of the electoral process is compelling.”  Id.

Importantly, the court found:

"[t]he advertisement that the League seeks to broadcast appears to be functionally equivalent to the sham issue advertisements identified in McConnell.  . . .  Indeed, the League’s advertisement—which characterizes Senator’s Snowe’s past stance on the Marriage Protection Amendment as '[u]nfortunate[]'—is the sort of veiled attack that the Supreme Court has warned may improperly influence an election.  Here, the advertisement might have the effect of encouraging a new candidate to oppose Senator Snowe, reducing the number of votes cast for her in the primary, weakening her support in the general election, or otherwise undermining her efforts to gather support, including by raising funds for her reelection."

Id. at 10.  The court recognized that “the League’s proposed ‘grass roots lobbying’ exception would seriously impair the government’s compelling interest in protecting the integrity of the electoral process,” because “candidates or their allies could easily schedule an issue for ‘legislative consideration’ during the run-up to an election as a pretext for broadcasting a particular subliminal electoral advocacy advertisement.”  Id. at 11.

The court’s decision and order can be found on the Campaign Legal Center Web site here.