Some of the First Amendment Violations in the McCain-Feingold Bill (S. 27)
National Right to Life Committee / Federal
(202) 626-8820 Legfederal@aol.com www.nrlc.org
February 15, 2001
Here are some of the key ways in which the McCain-Feingold bill (S. 27) violates First Amendment protections for groups that engage in free speech about politicians and communicate with elected officials and their staffs:
• COORDINATION TRAPS: Under current law, "coordination" between a "candidate" and a group is established only when there is an actual prior communication about a specific expenditure for a specific project which results in the expenditure being under the direction or control of a candidate, or which causes the expenditure to be made based upon information about the candidate’s needs or plans provided by the candidate. But S. 27 (Section 214) would redefine "coordination" in extremely expansive terms, to include (for example) mere discussion of elements of a candidate’s "message" (whatever that is) any time during a two-year period. Thus, if early in a Congress, representatives of six groups met with Senator Doe to discuss what language they, and he, will use to collectively promote Doe’s landmark bill to ban widgets, and Doe subsequently campaigns in part on his leadership on the widget-ban issue, all six groups arguably are "coordinated" with Doe.
• Once such so-called "coordination" is established, the "coordinated" organizations are flatly prohibited from spending money on any public communications deemed to be "of value" to Senator Doe -- by any media, at any time of the year. For example, a group’s literature promoting the widget-ban bill could be considered to be "of value" to Doe, even if Doe’s name is not mentioned, if it is disseminated to his constituents. Moreover, even if these organizations have connected PACs, those PACs would be prohibited from engaging in independent expenditures on Doe’s behalf of more than $5,000.
• Under Section 214, "coordination"
is also triggered by the mere sharing (by a "candidate" and a group or
person) of certain vendors of "professional services" during a
two-year period, including "polling, media advice, fundraising, campaign
research, political advice, or direct mail services (except for mailhouse
• "ELECTIONEERING COMMUNICATIONS": Section 201 applies additional restrictions to so-called "electioneering communications," defined to cover TV and radio communications that merely mention the name of a federal politician, during "pre-election" periods, which include 30-day pre-primary periods that begin as early as February of each even-numbered year, as well as a 60-day period before a general election. For example, under the bill, an organization would engage in an "electioneering communication" if it purchased a radio ad within 30 days of a primary that said no more than, "Urge [Congressman X] to vote against [or "in favor of"] the McCain-Feingold bill." The bill flatly prohibits such "electioneering communications" by unions and by corporations, including for-profit business corporations, trade associations, veterans’ groups, and organizations that hold 501(c)(3) status from the IRS. There is a narrow "exception" to the ban: corporations that hold 501(c)(4) or 527 status from the IRS would be permitted to pay for "electioneering communications," but only by setting up a "segregated fund," sort of a quasi-PAC, which could include no corporate or union contributions or business proceeds. The names of donors of over $1,000 to this quasi-PAC would be reported to the government and placed in the public domain.
• ADVANCE NOTICE REQUIREMENTS: The "disclosure" provisions (for example, Section 202 and Section 212) include requirements that "electioneering communications" and independent expenditures be reported as soon as any contract is signed for the communication -- which would be, in many cases, weeks in advance of the actual broadcasting of an ad. Such an advance notice requirement might be a boon to some powerful officeholders -- an incumbent governor seeking a Senate seat, for example -- who could then bring pressure to bear on broadcasters to refuse to sell airtime for the ads, or to back out. But under the First Amendment, Congress lacks authority to demand that NRLC declare in advance when and where we intend to utter a politician's name to the public, just as it lacks authority to impose such a burden on newspaper editorial boards.
• ENDORSEMENTS BY MEMBERS OF CONGRESS: Section 101 of S. 27 would prohibit members of Congress from endorsing the fundraising efforts of advocacy groups that use any part of the money for any communication to the public – by any medium, at any time of the year – that "promotes," "supports," "attacks" or "opposes" a member of Congress (or other "candidate"). This obviously would cover many of the routine communications that issue-oriented groups use to promote pending legislation. The following statement, for example, would certainly be considered an "attack" by some: "Senator McCain has introduced an awful bill that would restrict the right of pro-life groups to communicate with the public about the voting records of members of Congress. Please write to Senator Jones and urge him to oppose the bill." Likewise, "Senator Baucus has voted to keep the brutal partial-birth abortion method legal, but the bill is coming up again soon. Please call Senator Baucus and urge him to support the bill this time."