Letters Editor
Roll Call
900 Second Street, Northeast
Washington, D.C. 20002
Dear Letters Editor:
In an editorial urging adoption of the Snowe-Jeffords amendment to the McCain- Feingold bill ("Snowe Storm," Feb. 23), Roll Call rejects as "simply not true" a statement by NRLC that the measure would "prohibit the NRLC and its affiliates from even mentioning the name of a Member of Congress in a broadcast communication to the public during . . . designated calendar zones." According to Roll Call, the proposal says that a group sponsoring such communications "could not accept corporate or union money and would have to disclose its major contributors."
We suspect that Roll Call's statements may have been based on summary promotional materials recently circulated by Senator Snowe's office and by Roll Call Contributing Editor Norman Ornstein, rather than on the actual language of the 11-page amendment recently released by Snowe's office. (Curiously, Mr. Ornstein's role as co-author of and active lobbyist for the Snowe-Jeffords amendment went "undisclosed" in the editorial.)
NRLC has released an 11-page analysis of the actual Snowe-Jeffords amendment, prepared by NRLC General Counsel James Bopp, Jr., who is widely regarded as the nation's most successful litigator on behalf of First Amendment rights in the election-law context. As the analysis explains, during designated calendar zones, the mere reference to a federal politician (regardless of other content) would make a broadcast ad into a regulated "electioneering communication." This would include, for example, a radio ad purchased today in Illinois or Texas (which have March primary dates), simply asking listeners to "urge Senator X to vote for (or against) the McCain-Feingold bill."
Snowe-Jeffords would make it illegal for NRLC to spend one dollar of its general fund on such a communication. That's because NRLC is incorporated under Section 501(c)(4) of the IRS Code, which means that donations are not tax deductible for the donors, but the general fund may accept funds from business corporations. Moreover, NRLC's fund includes some income generated by NRLC's own "business" activities, e.g., the sale of pro-life T-shirts. Under Snowe-Jeffords, the sale of a single pro-life T-shirt "taints" the entire NRLC fund.
Thus, in order to sponsor a national aggregate of more than $10,000 worth of so-called "electioneering" (politician-mentioning) broadcast communications, Snowe-Jeffords would require that NRLC (and also any of our 3,000 affiliates) establish a new legal entity, similar to a political action committee (PAC). This new quasi-PAC would be required to engage in entirely segregated fundraising, and only from "approved" sources. (T-shirt proceeds are obviously corrupting and would be forbidden.) Moreover, the name of any private citizen who dares to contribute to such a politician-commentary fund (as little as $500 over a two-year period) would be reported to the government.
But it gets worse. The Snowe-Jeffords amendment would replace only one section-- Section 201 -- of the McCain-Feingold bill. It does not change McCain-Feingold's Section 205, which radically re-defines "coordination" to include ten different classes of relationship -- direct, indirect, imputed, or presumed -- between organizations and "candidates," including communications that are routine between congressional offices and public policy organizations. ("Candidate" includes all non-retiring members of Congress, including each senator throughout a six-year term.) These provisions would create a maze of legal tripwires, placing both "candidates" and lobbying organizations in constant legal jeopardy. For example, if an organization shared a single professional vendor with a Member of Congress or other "candidate" during a two-year period, "coordination" would be established.
This re-definition of "coordination" is crucial, because Section 301(c) of the Snowe- Jeffords amendment defines as a campaign expenditure -- and therefore, illegal for any corporation, nonprofit or otherwise, at any time of the year -- any communication (print or broadcast) by a "coordinated" organization that "refers to" a clearly identified candidate and "is for the purpose of influencing a Federal election (regardless of whether the communication is express advocacy)." This catch-all "for the purpose" prohibition would provide grounds for a politician to file a complaint with the FEC about virtually any communication he doesn't like -- print or broadcast -- that mentions his name, at any time of any year.
Snowe-Jeffords also leaves untouched the McCain-Feingold provision (Sec. 205) that flatly prohibits, as an illegal corporate "contribution," any communication by any so-called "coordinated" organization, at any time of the year, that is deemed to be "of value" to a "candidate" -- even if no candidate is mentioned in the communication.
None of this is constitutionally permissible. The Supreme Court has repeatedly ruled that under the First Amendment, groups may comment on politicians' positions without being subjected to such PAC-type restrictions, unless the communications contain "express advocacy," defined by the Court as explicit words that expressly urge the election or defeat of a clearly identified candidate.
As the Court held in Buckley v. Valeo, so 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. [Buckley, 424 U.S. at 45.] It should be obvious that if the First Amendment protects the right to "promote the candidate and his views" without being subjected to politician-imposed rationing and oversight, then the First Amendment certainly protects the right to mention the candidate's name.
Sincerely,
Douglas Johnson
Legislative Director