The Shays-Meehan Bill Contains Sweeping Restrictions on Free Speech About Politicians That Apply Year-Round
March 16, 2001
The Shays-Meehan bill (H.R. 380) is currently the most prominent "campaign finance reform" bill in the U.S. House of Representatives. Some of the major provisions duplicate those found in the Senate's McCain-Feingold bill (S. 27), but in some respects H.R. 380 is even more restrictive.
Media reports on the Shays-Meehan bill often mention that the bill would restrict TV and radio "issue ads" for two months before a primary and again for two months before a general election. However, the 93-page bill also contains numerous other provisions that would restrict the right of issue-oriented organizations to communicate with the public regarding pending legislation and the positions of those who hold or seek federal office. Some of these restrictions would apply at any time of the year and to any medium, including newspaper ads, leaflets, mailings, and phone banks. Some of these provisions are summarized below.
EXPRESSING "SUPPORT" OR "OPPOSITION": Section 201 of the Shays-Meehan bill (p. 17) would amend Section 301 of the Federal Election Campaign Act to re-define as "express advocacy" any communication "expressing unmistakable and unambiguous support for or opposition to" a federal politician -- whatever that means -- in print or broadcast form, at any time of any year. Because corporations are already prohibited from making expenditures for "express advocacy," this would ban such communications by all corporations, including issue-oriented corporations such as NRLC. This could apply, for example, to ads and mailings dealing with upcoming votes in Congress that contain such statements as, "Congressman Doe voted to allow the brutal partial-birth abortion procedure to continue. Call his office and urge him to change his position." Only political action committees (PACs) would be allowed to sponsor such communications -- and only if they avoided the bill's sweeping "coordination traps" (see below).
VOTING RECORDS AND VOTER GUIDES: In an illustration of how sweeping the bill's definition of "express advocacy" really is, the authors of the bill found it necessary to write in an exception merely to allow groups to receive written questionnaires from candidates for the purpose of preparing "voter guides," in print or on the internet (p. 17) -- but this exception would not permit interviews or verbal communications covering the same issues. Moreover, non-PACs would be prohibited from disseminating voting records and "voter guides" if the publications are deemed to express "unmistakable and unambiguous support for or opposition to"(whatever that means) a "candidate." Here as elsewhere in the bill, the term "candidate" includes all incumbent members of Congress who have not announced retirement (including a senator on the first day of a six-year term).
YEAR-ROUND REPORTING OF "ISSUE ADVOCACY": Section 306 of the bill requires any group that spends money on a communication to the public that names and "promotes, supports, attacks, or opposes" (page 8) a member of Congress or other "candidate," at any time of the year and by any medium (including mailings, newspaper ads, broadcast ads, telephone, etc.), to file detailed reports on all such expenditures exceeding $200, including stating "the purpose of the disbursement." (This does not apply to groups that spend less than $50,000 a year on such communications - less than the cost of one full-page ad in a major newspaper.) These sweeping definitions would establish a system of government monitoring and enforcement that would cover virtually all public communications that express value judgments regarding the actions of members of Congress or the merits of legislation that carries the name of a federal politician. For example, a newspaper ad urging calls in opposition to "Congressman Shays' assault on the First Amendment" could be construed as an ad that "opposes" Congressman Shays, while a mailing that refers to "Senator Olson's commendable bill to protect unborn children" could be construed as "support" for Senator Olson. Organizations that issue such communications would be targets for complaints to the FEC, with government officials then reviewing communications to determine whether they qualify as "attacks," etc., and assessing penalties for "violations."
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 Section 206 of the bill would vastly expand the definition of "coordinated activity," in a manner that would place issue-oriented lobbying groups and incumbent members of Congress at constant risk. "Coordination" would be established, for example, by mere discussion with a congressional office of elements of a lawmaker's "message" (for example, a specific bill introduced by that representative) any time during a two-year period. (See page 29.) Once thus "coordinated," incorporated groups would be flatly prohibited from spending money on any public communications deemed to be "of value" to that lawmaker by any medium, at any time of the year. Such communications would be defined as illegal corporate campaign contributions. For example, a group's literature promoting passage of a senator's bill could violate the law if it is distributed within the senator's home state.
BROADCAST ADS: In addition, Section 201 of the bill would flatly prohibit corporations [including organizations classified under Section 501(c)(4) of the IRS code to promote issues, such as NRLC and NRLC affiliates] from paying for radio or TV ads, for 60 days before any state's federal primary election(s) and again for 60 days before a general election, if it merely mentions the name of a member of Congress or other "candidate." Such politician-naming ads would be permitted only to federal PACs, which are already subject to a host of limitations on their fundraising and expenditures. Thus, under the bill, for 120 days of each even-numbered year, it would be an unlawful corporate campaign expenditure for any non-PAC to run a radio ad that simply says, "The Senate will vote next week on bill X. Please call Senator Doe and urge him to support the bill."
ENDORSEMENTS OF GROUPS BY MEMBERS OF CONGRESS: Section 101 (p. 11) 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" (p. 8) 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. Section 101 also would prohibit political party officials from soliciting funds for any 501(c)(3) organizations (even charities), 501(c)(4) organizations, or 527 organizations.
ADVANCE NOTICE REQUIREMENTS: The bill's "disclosure" provisions (Section 204, p. 22) require that 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.
MANDATORY MINIMUM PRISON TERMS: The bill (Sec. 1201) would impose a mandatory minimum one-year prison term (and up to 10 years) for "knowing and willful" violations of any of the-above described restrictions that involve a "contribution" or "expenditure" of $2,000 or more during a calendar year.