February 24, 1997

Senator John McCain
SR-241 Russell Senate Office Building
United States Senate
Washington, D.C. 20510

RE: S. 25, "campaign reform," and the First Amendment

Dear Senator McCain:

Last week, NRLC provided your office with a 24-page analysis dealing exclusively with the numerous provisions of your bill, S. 25, that would severely restrict the right of incorporated groups such as the National Right to Life Committee (NRLC) to disseminate to the public communications containing commentary on the votes and positions of persons who hold and seek public office. Our analysis explained in detail the manner in which these speech-restriction provisions violate First Amendment rights that have been clearly enunciated and forcefully reiterated by the U.S. Supreme Court.

During your appearance on the February 23 edition of NBC News Meet the Press, David Broder of the Washington Post asked you specifically about NRLC's objections to your bill's attempt to re-define "express advocacy" in a manner that would "shut down their First Amendment rights." In your response, you suggested that NRLC's objection was merely "a red herring that's been raised by opponents of campaign finance reform."

Closer examination of your exchange with Mr. Broder, however, nets a red herring of a different stripe.

Mr. Broder said, "The question really becomes, should you have the right to say, 'Dave Broder is running for office, but he has voted against the interests of the young people and the senior citizens in this country,' period? Should you have that right?" You responded, "I think informing the public is perfectly legitimate. But to launch an attack on me or, in this case, Senator Feingold, in my view, is their participation in a political campaign, and therefore, they might be subject to some kinds of limitations." [emphasis added]

Your delicate phraseology, "might be subject to some kinds of limitations," seems somewhat disingenuous. After all, if a communication by an incorporated group such as NRLC, or a union, falls under your bill's expansive definition of "express advocacy," that communication is thereby defined as an illegal campaign expenditure or contribution, and the speaking organization is subject to stringent civil penalties (and in some circumstances, even to criminal prosecution).[1] Your answer suggests that you would apply this speech ban to any corporate or union communication that you regard as "an attack" on a person who holds or seeks public office-- for example, Senator Feingold.

Let us consider the implications of your standard with this hypothetical but plausible example: NRLC purchases a newspaper ad or brochure that explains in detail the grisly partial-birth abortion method (with drawings thereof), with the comment, "Senator Feingold voted to allow this brutal procedure to continue to be performed thousands of times annually, on healthy babies of healthy mothers, most of them in the fifth and sixth months of pregnancy. In addition, on the Senate floor on September 26, 1996, Senator Feingold indicated he believed that even if the baby's head is delivered from the mother, it should still be a decision of the mother and the doctor whether to kill the baby."[2]

If, as you suggested, Dave Broder's rather mild example ("voted against the interests of the young people and senior citizens") would be considered an illegal express advocacy "attack" under your bill -- and we agree that it would be so considered -- then surely NRLC's characterization of Sen. Feingold's defense of partial-birth abortion and infanticide would also be considered an illegal express advocacy "attack." (The fact that NRLC's characterization is fair and accurate would be no defense under your bill.)

Now, permit us to examine NRLC's hypothetical "attack" on Sen. Feingold under the plain language of S. 25. Under Sec. 406, "express advocacy" is defined as including (among other things) any "communication that is made through a broadcast medium, newspaper, magazine, billboard, direct mail, or similar type of general public communication or political advertising that involves aggregate disbursements of $10,000 or more, that refers to a clearly identified candidate, that a reasonable person would understand as advocating the election or defeat of a candidate, that is made before the date that is 30 days before the date of a primary election, or 60 days before the date of a general election, and that is made for the purpose of advocating the election or defeat of the candidate, as shown by 1 or more factors such as a statement or action by the person making the communication . . ." [emphasis added]

Senator Feingold, notwithstanding his misguided views regarding abortion and infanticide, no doubt considers himself "a reasonable person." Sen. Feingold quite likely would regarding an NRLC brochure such as that described above as, in your words, "an attack," or in the bill's terms, as "advocating the . . . defeat of a candidate." He might very well file a complaint to that effect with the Federal Election Commission (FEC).

In dealing with such a complaint under S. 25, the FEC would have greatly expanded powers to act as federal political-speech police. The FEC would be empowered to seek or extract information regarding any "statement or action" by any NRLC official or agent, made at any time or place, that Sen. Feingold or the FEC staff think might bear on whether NRLC's characterization of Sen. Feingold's actions was uttered for the prohibited "purpose of advocating the. . . defeat" of Sen. Feingold. For example, the speech cops might ferret out an article by the president of NRLC, published in NRLC's newspaper in September, 1996, asserting that "any senator who voted to allow these terrible partial-birth abortions should be retired to private life."

On Meet the Press, David Broder responded to your "launch an attack" answer with a follow-up question:

Mr. Broder: So if I understood you correctly, they [issue groups] could put out a scorecard of my votes, but they could not say at the bottom of that scorecard, "You can see for yourself how Broder has voted against senior citizens and young people."

Sen. McCain: They can say, "You can see how Broder has voted." But if they say, "Don't vote for Broder" -- which I'm sure they wouldn't -- then I would say that in that case that then they would be subject to it [the bill's restrictions], because then they're part of a political campaign.

Here we see the real red herring displayed. The statement, "Don't vote for Broder" is obviously and precisely an example of "express advocacy" , as currently defined by the Supreme Court. But as you know very well, the Supreme Court's definition of "express advocacy" is regarded with contempt by Common Cause and the other major special-interest groups that are lobbying for S. 25-- and your bill seeks to obliterate the Supreme Court's definition. Indeed, your bill would expand the definition of "express advocacy" to include any kind of critical commentary regarding a person who holds or seeks federal office, at least within the defined 60-day 'speech blackout zone' preceding a general election.

Senator McCain, that is a far cry from "Congress shall make no law . . . abridging the freedom of speech, or of the press." The Supreme Court has said repeatedly that the First Amendment prohibits governmental interference with issue advocacy by American citizens and their associations, including incorporated groups. The Supreme Court has emphasized that this First Amendment protection applies in the highest degree to advocacy that strongly criticizes public officials and candidates, and to communications that may influence the freely made choices of American citizens as to how they will cast their ballots. 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.

Although you did not explicitly mention it on Meet the Press, some supporters of S. 25 claim that Sec. 406(b) would provide "protection" for publication of congressional "scorecards" by issue-oriented groups such as NRLC. Sec. 406(b) states:

The term "express advocacy" does not include the publication or distribution of a communication that is limited solely, to providing information about the voting record of elected officials on legislative matters and that a reasonable person would not understand as advocating the election or defeat of a particular candidate. [emphasis added]

Actually, this provision merely underscores NRLC's analysis that the bill would suppress dissemination of typical issue-group congressional "scorecards."

Sec. 406 (b) is, to begin with, merely an exceedingly narrow exception to the general prohibition on dissemination of such material. (If there were no underlying prohibition, it would make no sense to write out this spurious "exception.") Sec. 406(b) would spell out Congress's standards for what may or may not be included in a congressional "scorecard"-- i.e., "limited solely to providing information about the voting record...". Thus, including commentary or even simple information outside the congressionally-approved range -- for example, a notation that Senator Feingold has co-sponsored the "Freedom of Choice Act" -- would be verboten. Moreover, no matter what the explicit content of the scorecard, it would still face the review of government censors under the nebulous "reasonable person" test.

We respectfully submit that American citizens, individually or in association, do not need their legislators' permission to disseminate their voting records, with or without commentary. The specific "content requirements" that you may choose to list under such a "permission clause" are constitutionally irrelevant, because Members of Congress are entirely lacking in constitutional authority to dictate the manner in which their voting records are disseminated or commented on -- and this includes commentary that these legislators may consider to be "attacks." Incorporated associations of American citizens such as NRLC, under the First Amendment, are entirely free to publish congressional voting records, including pertinent supplemental information, commentary, and all manner of issue advocacy, so long as we do not explicitly implore our readers to vote for or against a named candidate or candidates.

We have heard you say that one purpose of your bill is to diminish the advantages of incumbency. We find this ironic, because it appears that the speech-restriction components of your bill most often would operate as "incumbent protection" devices. After all, it is generally an advantage to challengers that the incumbents have been forced to take positions on hundreds or thousands of very specific public policy issues by casting recorded votes on those issues. However, this incumbent vulnerability would be diminished if issue-oriented groups are prevented from disseminating meaningful, interpretive scorecards to citizens with an interest in specific issues (abortion, labor issues, environment, whatever).

Numerous components of S. 25 would give politicians and political appointees control over the content and amount of communications that explain and comment on the positions and votes of those who hold and seek public office. Once the American people understand that this is so, we believe they will reject such speech-restriction schemes, and will agree with the Supreme Court's reasoning in striking down a $1,000 limit on independent political communications in Buckley v. Valeo:

For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions....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.

Senator McCain, it is our hope that you will reflect more fully on the implications of the speech-restriction provisions of S. 25, and will abandon your effort to replace America's time-tested "marketplace of ideas" with a system of government regulation of those communications that comment on the merits of positions taken by persons who hold and seek public office.

Respectfully submitted,

David N. O'Steen, Ph.D.
Executive Director

Douglas Johnson
Legislative Director

1-Some might respond that although the bill bans such speech by incorporated entities, it still allows such speech by PACs. As explained in the NRLC analysis of S. 25, pages 11-12, that restriction taken alone would severely "ration" the amount of such speech. But S. 25 does not stop there. The bill proceeds to also propose an array of sweeping new restrictions on communications by PACs, including constitutionally protected independent expenditures. For example, S. 25 would stifle independent expenditures through various advance-notice mechanisms to encourage pre-emptive blocking by powerful politicians; by conferring special benefits on candidates who are criticized by independent expenditures; by punishing "bystander" candidates who are deemed to "benefit" by such ads; and by authorizing the FEC to obtain injunctions to accomplish prior restraint of political communications that it believes would violate the bill's requirements; among other restrictions. See NRLC analysis, pages 19-23.

2-A transcript of the pertinent exchange between Senator Santorum and Senator Feingold is attached. Please note that this is a verbatim transcript made from a tape of the C-SPAN broadcast. The exchange was substantially altered prior to publication in the September 26 Congressional Record, in a manner that substantially changed the sense of Sen. Feingold's response. The videotape shows that Sen. Feingold was directing his full attention to Sen. Santorum's question, and that Sen. Feingold's response was direct and unambiguous. See also "Orwell, Call Your Office," by George F. Will, Newsweek, Feb. 3, 1997, page 68.

3-This definition of "express advocacy" is a radical departure from the "bright line" definition which the Supreme Court said in Buckley v. Valeo is required by the First Amendment. The S. 25 definition closely resembles the FEC attempts to regulate issue advocacy that were rejected by the Supreme Court in Massachusetts Citizens for Life v. FEC (1986). More recent such attempts by the FEC to expand the definition of "express advocacy" have been struck down by the First Circuit in Faucher v. FEC (1991) and Maine Right to Life Committee v. FEC (1996). Faucher concerned an FEC regulation that dictated that voter guides must not "suggest or favor any position on the issues covered" or add any "editorial opinion." The First Circuit ruled that the regulation violated the First Amendment.

4-For NRLC, Inc., to even suggest that Sen. Feingold is not a "reasonable person" would probably constitute illegal "express advocacy" under S. 25, at least if such a negative assessment (i.e., "attack") was included in a communication issued by NRLC within the bill's 60-day 'speech blackout zone' preceding a general election.