Wednesday, February 26, 2003
Court Strikes Down Arizona Restriction on Political Attack Ads
By KENNETH OFGANG, Staff Writer/Appellate Courts
An Arizona law designed to protect candidates’ ability to respond to last-minute attack ads by political action committees violates the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Reversing a decision by U.S. District Judge Roger Strand of the District of Arizona, the appellate panel said the 1993 law “may be well-intentioned and adopted in the spirit of good government,” but unduly burden the PACs’ right to free speech.
The law, which was challenged by the Arizona Right to Life Political Action Committee, requires that a copy of any attack advertisement be sent to the candidate by certified mail “twenty-four hours before depositing it at the post office for mailing, twenty-four hours before submitting it to a telecommunications system for broadcast or twenty-four hours before submitting it to a newspaper for printing.”
Violations are punishable by civil penalties equal to three times the cost of the advertisement.
Judge M. Margaret McKeown acknowledged that the Legislature was looking to correct what it perceived as a substantial problem, the unfairness of having candidates exposed to last minute “hit pieces” by PACs, and to promote an informed electorate and avoid corruption or the appearance of corruption. By attacking candidates through such independent expenditures, the judge noted, the PAC is able to seek a candidate’s defeat without causing the backlash that might result if the attack was being paid for by an opposing candidate.
But the statute, McKeown concluded, “places a severe burden on political speech” by controlling the timing of the PAC’s message, and in some cases preventing it from getting out that message at all.
“To suggest that the waiting period is minimal ignores the reality of breakneck political campaigning and the importance of getting the message out in a timely, or, in some cases, even instantaneous fashion,” she wrote.
McKeown noted that the law places the PAC at risk of the same type of attack it seeks to protect the candidate from. If, for example, a candidate were to attack a PAC that was supporting his opponent, and to launch the attack two days before the election, at a news conference or over the Internet, the PAC could not respond before election day, the judge explained.
The judge said she was also troubled by the fact that the law allows candidates and individuals to engage in the same type of negative campaigning that PACs are barred from.
“In the absence of any evidence to suggest that PACs are more likely to distort facts or confuse voters than are the candidates themselves or that PAC speech warrants special treatment, the state has not met its burden of demonstrating that § 16-917(A) will ‘maximize voter education’ or prevent confusion,” McKeown said.
The judge also commented that the nature of modern campaigning makes it unlikely the law can fulfill its purpose.
Since the PAC need only mail the notice 24 hours in advance, and may do some from its East Coast headquarters, the ad may be on the air or in voters’ mailboxes before the candidate actually receives the notice, the judge reasoned. And the efficacy of this type of last-minute campaigning is limited, she added, because Arizona has early voting, which 35 percent of the electorate used in the 2000 general election.
Nor, she added, did the state show how the law fulfills its interest in preventing corruption or the appearance of corruption.
Judge Richard A. Paez and Senior U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania, sitting by designation, joined in the opinion.
The city of Los Angeles has an ordinance that requires copies of mailings or broadcasts by independent groups be filed with the city Ethics Commission, but the timing is differentóthe filing must be made within 24 hours after, rather than before, the independent ad is disseminated.
The case is Arizona Right to Life Political Action Committee v. Bayless, 01-17065.
Copyright 2003, Metropolitan News Company