Do American Voters Need Speech Nannies?

By Douglas Johnson

Douglas Johnson is legislative director for the National Right to Life Committee (NRLC), a nonprofit corporation.

Many incumbent members of Congress are eager to provide America's voters with a new government service -- a federal law to protect them from messages about politicians that may "manipulate" simple-minded voters, especially those communications that are "negative" in tone, or that will result in "unhealthy" debate.

Yes, if Senator John McCain, Senator Russ Feingold, Common Cause, and their allies get their way, federal legislators, political appointees, and FEC career speech regulators will become the political speech nannies for the rest of us. They will do their utmost to shield their fellow citizens from an excess of information and claims about politicians -- conflicting messages that may confuse and befuddle them, or even trick them into voting for the "wrong" candidates.

If you do not regard yourself as being in need of such a service from your government, then maybe it's time for you to take a closer look at the McCain-Feingold bill. The latest revision, currently on the Senate floor, contains speech-nanny provisions that are even stronger than those found in earlier versions, and astonishing in their brazenness.

In recent days, the media have reported that the new bill would restrict broadcast ads that mention candidates within 60 days of an election. However, the bill actually contains multiple speech restrictions that sweep far more broadly than the 60-day provision.

The other, less publicized provisions encompass both print and broadcast communications -- and apply year around. The bill would generally prohibit unions and corporations -- including issue-advocacy groups such as National Right to Life, the ACLU, or the Sierra Club -- from paying for communications to the public at any time of the year that federal regulators consider to be "for the purpose of influencing a federal election," if the sponsoring organization is deemed to have any of ten broad categories of links (direct or indirect, actual or presumed) to a candidate, including the mere sharing of professional vendors. "Candidate" includes all incumbent members of Congress, unless they have announced their retirement, starting the day after any election.

An "Exception" That Proves the Rule

Sen. McCain has made much of what he calls an "exception" which he claims would protect the right to disseminate certain printed information about the voting records of Members of Congress and the positions of candidates, including so-called "voter guides."

Actually, however, the so-called "exception" amount to an elaborate set of "speech specifications," spelling out what type of information on politicians' votes and positions the Congress would deign to permit. Among other specifications, such printed material would be verboten unless it is solely presented "in an educational manner" , which is FEC-style speech-regulation jargon meaning "no explicit or implicit value judgments allowed." The bill also contains an additional requirement that the communication must not contain "words that in context can have no reasonable meaning other than to urge the election or defeat of one or more clearly identified candidates."

This so-called "exception" would really operate as a ban on the sort of congressional voting "scorecards" and voter guides that are commonly disseminated by many issue-oriented citizen groups and unions. Typically, such materials reflect a viewpoint on the issues covered by the scorecard or voter guide. This viewpoint may be evident, for example, in the selection of issues and the way that they are characterized, through "positive" or "negative" ratings or "grades," and through explicit commentary.

Such commentary is not an "abuse" or "evasion" of federal law. Rather, it is fully protected by the First Amendment, which is not a "loophole" but, among other things, the nation's paramount "election law."

Under the so-called "exception," however, a citizens' group such as NRLC, Inc., could not at any time of the year issue a brochure that contains the value-laden statement, "On May 20, 1997, Senator Russ Feingold voted to allow the brutal partial-birth abortion procedure to remain legal," without risk of facing an FEC investigation for engaging in advocacy against a "candidate." In addition, for 60 days before the primary or general election, NRLC, Inc., could not run an ad on the radio or TV that said simply, "Senator Russ Feingold voted against the Partial-Birth Abortion Ban Act, H.R. 1122, on May 20, 1997."

Isn't this really "incumbent protection," big time? One of the few disadvantages of being an incumbent is the possibility of being called upon to defend one's actual votes on any of hundreds of issues. But the incumbents will have to do a lot less such defending, if the McCain-Feingold speech restrictions were in effect.

These restrictions would apply even to communications that ask citizens to take action with respect to approaching votes on critical issues in Congress. For example, prior to the September, 1996 votes in the U.S. House and U.S. Senate on whether to override President Clinton's veto of the Partial-Birth Abortion Ban Act, NRLC published brochures that asked readers to contact specific members of Congress (i.e., "candidates") who had previously voted against the bill in order to urge them to switch sides and vote to override the veto. Some did so. Other groups ran TV ads with similar messages.

Only PACs Can Speak

Under the bill, it would remain lawful for a Political Action Committees (PAC) to utter the name or depict the likeness of a candidate before an election, so long as the PAC was able to avoid inadvertently violating the bill's Byzantine provisions defining impermissible "coordination," which include such things as merely paying for "the professional services of any person that has provided or is providing campaign-related services in the same election cycle" to a candidate who the PAC wishes to support. Running afoul of these "coordination" rules automatically limits the PAC's speech on behalf of a candidate to $5,000.

A law that allows only PACs (and the news media) to speak about politicians would silence countless citizens' groups across the nation that do not have the resources to meet the complex regulatory demands that are involved in operating a PAC (e.g., hiring accountants and lawyers with expertise in federal election law, filing complex reports, reporting the names and occupations of donors to the government, etc.).

Moreover, even groups that have connected PACs, such as NRLC, would be able to engage in far less politician-specific speech than now, which is precisely the goal of the speech-regulators. Current law places stringent rationing restrictions on PACs. Such PACs may solicit and accept donations only from individual members, donations are limited to $5,000, and the names of all donors of over $200 must be reported to the government, among other restrictions.

However, the Supreme Court has held that such government regulations may be applied only to communications that contain explicit words urging a vote for or against a candidate. The Court has held that "issue advocacy" -- meaning citizen groups' commentary on politicians and their positions on issues -- is core political expression and enjoys the highest degree of immunity under the First Amendment.

The Supreme Court's decisions do not allow this definition to be adjusted by federal or state legislative bodies, because that would allow precisely what is being attempted now -- government control of the content and the amount of speech regarding the matters that are at the very core of the First Amendment's protections.

The Supreme Court did not adopt its narrow definition of "express advocacy" based on some naive misperception that only messages that explicitly urge a "vote for" or "vote against" a specific candidate would influence voters. Rather, the Court explicitly recognized that many other types of speech regarding the merits of the positions and votes of candidates may sway voters (that's why they're called "voter guides"), but rejected limitations on such speech as alien to the First Amendment.

As the Court said in Buckley v. Valeo, "As long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views." [emphasis added] But under the McCain-Feingold bill, they cannot "spend as much as they want to promote the candidate and his views" -- or even mention his name on the radio.

Many of the arguments being offered to justify restrictions on private speech about politicians seem to flow from a preconception that certain political elites should define the proper parameters for political discourse -- by force of law.

Burt Neuborne, legal director the Brennan Center for Justice (an organization devoted to seeking the overruling of Buckley v. Valeo), displayed this elitist mindset at a February 27 hearing before the House Judiciary Constitution Subcommittee. Neuborne commended the panel's chairman, Congressman Charles Canady (R-Fl.), "for the disciplined way the hearing has been run, and how carefully you maintained the ground rules that allowed real free speech to come out here. And I'm really saying that the same idea has to be thought of in the electoral process. . . . In a courtroom speech is controlled. In this room speech is controlled, and the net result is good speech."

Here, indeed, is a new vision of democracy -- elections in which the government sits on high as a judge, decreeing who will speak, at what time, and for how long.

Or consider the words of Sen. McCain himself, who explained on September 26, "These groups run ads that even the candidates who benefit from them often disapprove of. Further, these ads are almost always negative attacks on a candidate and do little to further healthy political debate." [emphasis added]

Where does Sen. McCain think he gets the authority to suppress commentary on politicians that he considers "negative" or "unhealthy"? And does he really imagine that it is constitutionally relevant whether or not candidates "disapprove of" the speech of citizens groups?

Even more haughty are the words of Congressman Scotty Baesler (D-Ky.), who says that unless restrictions are placed on independent communications, "the candidate risks losing control over the tone, clarity, and content of his or her own campaign."

Whatever gave Mr. Baesler the outlandish notion that he has authority to control the tone or content of the debate that precedes an election? Elections are not the sole property of the candidates. The right to seek to persuade fellow citizens of what issues they should weigh heavily at election time is as fundamental as the right to vote itself. As the U.S. Court of Appeals for the Second Circuit put it in FEC v. CLITRIM -- one of the innumerable federal court decisions striking down various speech regulation schemes put forward by the Federal Election Commission -- "the right to speak out at election time is one of the most zealously protected under the Constitution."

We are told that ads and voters guides put out by citizens' groups "influence elections" -- but just what does that mean? After all, none of the communications being debated -- voter guides, scorecards, TV ads -- can "influence elections" at all, except to the extent that they are given weight by registered voters.

Doesn't our constitutional system of government ultimately rest on the general premise that these people -- grownups, American citizens -- should be allowed to sort out the competing political messages (including those presented by the news media) without government-imposed filters or government-imposed counterspeech?

Restrictions on speech such as those contained in the McCain-Feingold bill seem to grow out of a "protect-the-dimwits" mindset -- a usually unspoken premise among many members of certain political and media elites that we need laws to protect the poor perplexed voters from being manipulated by independent political voices.

For example: in an August 19 interview on CNN, Alan Baron, chief Democratic counsel for the campaign finance investigation of Sen. Fred Thompson's Governmental Affairs Committee, suggested that there is something improper or illicit about the voter guides that the Christian Coalition distributes by the millions. These leaflets typically summarize the positions of two or more candidates on approximately ten issues.

These voter guides "are manipulated," Mr. Baron complained. "Certain issues are emphasized in one election and then de-emphasized in another election. They are clearly intended -- based on everything I have discovered about them -- they are intended to manipulate the voter into voting a certain way, usually for very conservative Republican candidates."

(This is pretty sinister stuff -- "manipulating" voters into looking more favorably on certain types of candidates by talking about their positions on certain issues and not other issues. What will happen if the AFL-CIO, Handgun Control, the Sierra Club, and the National Abortion and Reproductive Rights Action League -- or, for that matter, the League of Women Voters -- find out about this trick?)

Clearly, in Mr. Baron's eyes, the Christian Coalition voter guides "in context can have no reasonable meaning other than to urge the election or defeat of one or more clearly identified candidates," and are deficient in maintaining the proper "educational manner" that would be required by law under the McCain-Feingold bill.

But mind you, when Mr. Baron says that the Christian Coalition's voter guides "manipulate voters," he does not mean sophisticated voters such as himself. No, if a smart Washington insider like Mr. Baron received a Christian Coalition voter guide, he would decide whether or not the issues discussed were the issues he considered salient, compare the information presented there to the information available from other sources, and reach his own judgment. But there are so many other voters out there in the hinterlands who Mr. Baron knows lack his powers of discernment, and it is they who are in need of the speech nannies that McCain-Feingold would provide.

This is a very steep and slippery slope. Those who hold or seek office are human, which means they don't like to be criticized. If speech-regulating legislators can get the courts to back off and use legal restrictions to reduce the amount of unpleasant stimuli to which they are subjected -- and be applauded for their unselfish "reform" efforts to boot -- we can expect that the scope and duration such restrictions will rapidly expand in all directions.

For example, Congressman Sam Farr (D-Ca.), author of the "campaign reform" bill sponsored by the House Democratic leadership, wrote that "material that is written in such a way that the recipient is left with the clear impression that the material advocates support or defeat of a particular political candidate or party-- even without naming that candidate or party -- would constitute express advocacy and would fall under the scope of campaign expenditure laws." (emphasis added)

In the same vein, Senator Max Cleland (D-Ga.) recently complained to the Associated Press about what he call "independent expenditure" ads on TV that asked his constituents to urge him to vote for the Partial-Birth Abortion Ban Act, shortly before the Senate passed the bill on May 20. (He didn't.) These ads demonstrated the need for "campaign reform" legislation such as the McCain-Feingold bill, Sen. Cleland fumed. Sen. Cleland is not up for re-election for 52 years.

On ABC This Week for September 28, George Will asked Democratic National Committee General Chairman Roy Romer if the National Right to Life Committee should be able to buy pre-election newspaper ads that decry partial-birth abortions, if the ads do not name a candidate. The Colorado governor replied, "I think you ought to separate that from the time of the election. You've got twelve months during a year." Only when challenged by an incredulous Will did Romer graciously allow that "if it doesn't mention the candidate's name, you could probably leave it unregulated."

Rather than go down this path, we should heed the words of the Supreme Court in Buckley v. Valeo: "In the free society ordained by our Constitution it is not the government, but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign."

In other words, let's respect our elected officials and the demanding offices that they hold. But let's not be such dimwits that we allow them to start telling us when, how, or how much we can talk about their voting records.