On the recordSeptember 10, 1998
There was some discussion yesterday on the floor with regard to the issue of advocacy about a case called Furgatch. And the supporters of McCain-Feingold spent a lot of time trying to interpret the Furgatch decision as allowing the kind of suppression of issue advocacy by citizens that I think clearly is a misreading of the case. Those who advocate McCain-Feingold and, for that matter, the Snowe-Jeffords substitute regulatory regimes, have precious few court cases on which to base their arguments. Most prominent among these is the ninth circuit's Furgatch decision, dating back to 1987. It is mighty slim, Mr. President, the Furgatch limb upon which their issue advocacy regulation case rests. While Furgatch is not my favorite decision, it is certainly not the blank check for reformers who seek to shut down issue advocacy, either. Furgatch was an express advocacy case, nothing short. It was about a different subject. It was an express advocacy case, not an issue advocacy case. It hinged on the content of the communication at issue-- words, explicit terms--just as the Supreme Court required in Buckley and reiterated in Massachusetts Citizens for Life. The words in Furgatch were not those contained in Buckley's footnote 52. Indeed, no one, least of all the Supreme Court, ever intended that the list--also known as 'footnote 52'--was exhaustive.
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