To: Journalists and Other Interested Parties
From: Douglas Johnson, NRLC Legislative Director
(202) 626-8820, (301) 502-1170, fax (202) 347-3668
Re: "campaign reform" and so-called "issue advocacy"
Date: September 22, 1997
As anticipated in NRLC's September 9 letter to the Senate, the revised McCain-Feingold bill contains even more sweeping restrictions on independent commentary on politicians' positions (even on legislation yet to be voted on) than did the original bill. The new version applies to communications that even dare to mention the name of a Member of Congress. (Talk about incumbent protection.) This is light years beyond the Supreme Court's requirement that in order to be subject to government regulation under the First Amendment, a communication must include "express advocacy," defined by the Court as referring only to words that explicitly urge the election or defeat of a candidate. There are far-reaching implications to placing such restrictions on the communications of citizens' groups regarding politicians' positions, which deserve much more careful scrutiny than they have yet received from most organs of the institutional news media.
A story in the Sept. 19 New York Times, "2 Senators Trim Campaign-Finance Sails," included the following statements:
the misuse of advertisements that advocate issues . . . The bill would ban any advertisement run within 60 days of an election that names candidates or shows their likenesses.
The modified [McCain-Feingold] bill . . . would also prevent
In the same vein, a news story in the Sept. 22 Wall Street Journal, "Reno's Move to Name Counsel Pressures GOP to Change Laws," said that the revised McCain-Feingold bill would "ban 'soft money' contributions and curb independent campaigns thatskirt restrictions by promoting candidates without doing so explicitly -- two major areas of abuse." Other media outlets often employ similar formulations. (Some cite sets of pertinent FEC regulations, but without noting that they have been struck down as unconstitutional by the First Circuit.)
To describe the McCain-Feingold restrictions as addressing "themisuse of advertisements that advocate issues" or "campaigns that skirt restrictions by promoting candidates . . . [a] major . . . abuse," are the sort of tendentious characterizations that we would expect to see in mailings from Common Cause or other such special-interest groups, or from Senator McCain's office. But adoption of such loaded characterizations in the voices of the Times, Journal, or other news media certainly seems inappropriate.
Adoption of such pejorative terminology may be predicated on an underlying misconception (often fostered by "reform" groups) that the Supreme Court has drawn a legal distinction between communications that advocate pure "issues" and communications that advocate on behalf of the positions taken by specific "candidates." But in fact, the Supreme Court has repeatedly and explicitly rejected such a distinction as inconsistent with the First Amendment. Under numerous rulings of the Supreme Court and courts of appeals, thecandidate-specific communications referred to by the Times as "misuse" and by the Journal as "skirt[ing] restrictions" and "abuse," are actually a form of speech that enjoys the highest degree of protection under the First Amendment.
In Buckley v. Valeo, the Supreme Court explicitly rejected the notion that a "purpose" of promoting candidates can justify government regulation of such communications. The Court held that the First Amendment requires that only communications that in express words explicitly urge the election or defeat of an identified candidate can be subjected to government regulation. As the Court put it:
of course includ[ing] discussions of candidates. . . .
Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." . . . There is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs . . .
As long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate [i.e., "express advocacy"], they are free to spend as much as they wantto promote the candidate and his views. . . . [emphasis added, cites omitted]
Under the McCain-Feingold proposal, of course, a non-PAC group could not "promote the candidate and his views" -- or indeed, even mention his name, during the speech-blackout zones(which would be in effect, for at least some part of the country, from January 1 onward in every even-numbered year). Compare this with the declaration of the Second Circuit that "the right to speak at election time is one of the most zealously protected under the Constitution."
It is true that the FEC has attempted to persuade the federal courts to rule that communications that criticize politicians or show them in a "bad" light should be regarded as abuses and therefore subject to regulation. But the federal courts have repeatedly and emphatically rejected such FEC attempts to suppress commentary on politicians, holding that such communications are fully protected under the First Amendment. These cases are numerous and were recently summarized in a law journal article, The First Amendment is Not a Loophole, by James Bopp, Jr., and Richard Coleson, available from NRLC. With respect to these free-speech issues, Mr. Bopp is probably the most experienced federal election-law attorney in the nation. He has litigated multiple cases in which federal courts have struck down the FEC's attempts to assert regulatory authority over communications that do not explicitly endorse candidates.
None of the many issue advocacy cases discussed in the Bopp/Coleson law journal article involved communications that simply discussed "issues" without naming Members of Congress or other candidates. Rather, these cases all involved attempts to restrict communications in which various groups commented on the positions or records of "candidates." It is precisely this type of commentary on politicians' positions that is primarily referred to by the somewhat unsatisfactory legal term of art issue advocacy.
A typical judicial response to the FEC's "abuse" theories is found in the Second Circuit's ruling in 1980 (CLITRIM), which observed that adoption of a "purpose" test would "nullify the change in the statute ordered in Buckley v. Valeo . . . The [FEC] position is totally meritless." Perhaps most instructive, however, is the ruling of the Fourth Circuit in April of this year, which involved an attempt by the FEC to punish the Christian Action Network, a nonprofit corporation, for running a 1992 pre-election TV ad that portrayed candidate Bill Clinton's position on homosexual rights in a very negative light. The Fourth Circuit not only rejected the FEC's position, but ordered the agency to pay the group's legal costs on grounds that after being told so many times that such communications are immune from government restrictions under the First Amendment, the agency no longer has any legal justification for continuing to argue otherwise.
We respectfully submit that journalists should not characterize communications that are regarded as core protected speech under the First Amendment as "abuses" or as evasions of "the law," even though some advocates may employ such terminology. The First Amendment is not a "loophole." It is, among other things, the nation's paramount "election law."
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