Thursday, May 01, 2008, 4:04 PM

Fourth Circuit Strikes Down NC's Campaign Finance Law ...

Today in North Carolina Right to Life, Inc. v. Leake, a split Fourth Circuit (in 101 pages of opinions!) held that key provisions of NC's campaign finance laws violate the First Amendment, including provisions regulating the "express advocacy" of candidates by organizations, defining "political committee," and limiting contributions. The majority opinion was authored by Judge Wilkinson and joined by Chief Judge Williams. Judge Michael dissented.

Judge Michael accused the majority of allowing organizations and individuals "to conceal their identities, spend unlimited amounts on campaign advertising masked as discussion of issues, and hide themselves from the scrutiny of the voting public." He voted to reject every aspect of the challenge.

The majority shot back that Judge Michael's dissent "contravened no fewer than three Supreme Court precedents." The majority further accused Judge Michael of "inventing a First Amendment standard out of whole cloth," a standard that (the majority said) would place political speech "in some meat locker before First Amendment implications arise." The majority concluded (in Wilkinsonian fashion), "Debate on political issues can be reasoned and calm. It can also be passionate, long-winded, funny, uplifting, dull, or downright outrageous. Whatever it is, speakers ought to be able to engage in it without wondering all the while whether a regulator now possessed of unprecedented discretion will find they have committed the mortal sin of uttering "the functional equivalent of express advocacy." Our dissenting colleague would permit the state to oversee political speech — no questions asked. The dissent would force political speech to navigate the Scylla of vagueness and all its chilling effects and the Charybdis of impossibly intricate regulation, which even the cognoscenti may be unable to divine. Indeed, the dissent replaces the Supreme Court’s faith in the workings of the First Amendment with a faith in the powers of government to manage what we say on what matters most. This approach surrenders to the state an awesome control over those political issues that determine the quality of our democracy and the values that give purpose and meaning to our lives."

See the post immediately below, where today, in a separate campaign finance case from North Carolina (involving NC's Judicial Reform Act), Judge Michael authored the opinion for a different panel that rejected the First Amendment challenge and upheld the law.


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