An Analysis of the Speech-Restrictive Provisions of the McCain-Feingold "Campaign Reform" Bill (S. 27)

Federal Legislative Office / National Right to Life Committee
March 16, 2001

Introduction

This memo analyzes the effects of some of the speech-restrictive provisions of the latest revision of the McCain-Feingold bill (S. 27), introduced by Senator McCain on January 22, 2001. Like earlier versions of the McCain-Feingold legislation, S. 27 contains multiple provisions that infringe on the right of citizen groups to communicate with the public regarding the actions of elected officials -- a right that the Supreme Court has repeatedly held enjoys the highest degree of immunity from government regulation under the First Amendment.

Thumbnail descriptions of the bill in the press often mention a provision that would restrict broadcast ads that "promote candidates" ⁽¹⁾ within 60 days of an election. However, the bill actually contains multiple speech restrictions that sweep far broader than the 60-day provision. As discussed below, the other, less publicized provisions encompass both print and broadcast communications -- and apply year-round.

[For a more thorough discussion of the First Amendment case law that condemns various key provisions of S. 27, please refer to "Analysis of S. 27, McCain-Feingold 2001," by James Bopp, Jr., general counsel of the James Madison Center for Free Speech, at www.jamesmadisoncenter.org. Other pertinent information can be found at the National Right to Life website under "Federal Legislation: Free Speech and Campaign Finance Reform," at www.nrlc.org/Federal/Free_Speech/index.html.

Summary of Speech-Restrictive Provisions

However, even if an organization refrained from communicating with elected officials or their staffs by way of meetings, correspondence, questionnaires, etc., S. 27 would ban many types of groups from sponsoring any broadcast ads during pre-election time periods if they even mention the name of a member of Congress, and would allow certain other types of groups to do so only under an array of restrictions (e.g., elimination of several currently permissible funding sources, mandatory reporting of donors' names to the government, etc.) that would greatly reduce the amount of such speech. This restriction on "electioneering communications" is discussed on pages 4-5 of this analysis.

Candidate-Specific Issue Advocacy Enjoys the Highest Degree of First Amendment Protection

Some lawmakers and some journalists have adopted the mistaken notion that nonprofit corporations have a right to advocate a viewpoint on "issues," but are engaging in illicit activity, or at best exploiting a legal "loophole," if they communicate with the public about the merits of the positions of specific "candidates" on issues. Actually, while such speech-restrictive theories have been pursued for decades by the Federal Election Commission, they have been emphatically rejected by the federal courts (including the Supreme Court) as violating the nation's paramount "election law," the First Amendment.

The First Amendment is not a "loophole."

The Supreme Court has repeatedly emphasized that the First Amendment protects the right of groups of citizens, including nonprofit corporations, to freely communicate with the public regarding the actions and positions of persons who hold or seek federal office, without being subjected to limits on how much they can spend on such commentary or other restrictions such as those proposed in the McCain-Feingold bill. The legal term of art for such commentary on candidates' positions is "issue advocacy."

In cases such as Buckley v. Valeo (1976) and FEC vs. Massachusetts Citizens for Life (1986), the Supreme Court held that only those communications that contain "express advocacy"-- explicit exhortations to vote for or against clearly identified candidates or parties -- may be subjected to government review and regulation (and even then only within certain limits). The Court has defined "express advocacy" to extend only to communications "containing express words of advocacy of election or defeat, such as" (in the Court's own words) "'vote for', 'elect,' 'support,' cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' ''reject'."

The Supreme Court's "express advocacy" test is clear and objective -- a "bright line" that cannot be removed or moved by an act of Congress, because it is rooted in the First Amendment itself, which prohibits Congress from passing any law "abridging the freedom of speech, or of the press." The definition is based on the actual words used in a communication -- not on some bureaucrat's post-hoc judgment about the "motivation" or "purpose" or "effect" of the communication.

The Supreme Court has explicitly rejected the idea that a political communication should be evaluated on the basis of the judgment of some third party (such as the Federal Election Commission) regarding the motivation or intent of the communication, or on the basis of somebody's judgment about how the message was "understood" by those who received it -- the approach incorporated in the new McCain-Feingold bill. As the Court said in Buckley:

[W]hether words intended and designed to fall short of invitation [to vote for or against a candidate] would miss the mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.

The Court also said in Buckley:

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. [emphasis added]

Under S. 27, however, they are not "free to spend as much as they want to promote the candidate and his views." Indeed, under the bill, an organization that has lobbying contacts with congressional offices may not prudently "promote the candidate and his views" at any time of the year, and may not pay for an ad that mentions his name on the radio or TV for 60 days before a general election, except under unconstitutional restrictions that violate the citizen group's free speech rights.

Restrictions on "Electioneering Communications"

Under Section 201 (the so-called Snowe-Jeffords provisions), broadcast communications to the public by issue-oriented groups such as NRLC and NRLC affiliates would be labeled and brought under the enforcement authority of the Federal Election Commission merely because they mention the name of a member of Congress or candidate for Congress, if disseminated within 30 days of a primary or party nominating convention (congressional primaries begin in March) or within 60 days of a general election.

Under Section 201, a communication would be legally labeled as a restricted "electioneering communication" even if it did no more than urge grassroots contacts with lawmakers regarding an upcoming vote in Congress -- for example, on whether to override the veto of the Partial-Birth Abortion Ban Act. Indeed, under the bill, if a nonprofit citizen group purchased a radio ad within 30 days of a March or April primary that said no more than, "Urge [Congressman X, Senator Y] to vote against [or "in favor of"] the McCain-Feingold bill," that group would have engaged in an "electioneering communication."

Section 201 would completely ban such so-called "electioneering communications" by for-profit corporations, labor unions, and trade associations. Corporations that hold 501(c)(3) status with the IRS also would be entirely prohibited from sponsoring broadcast that encourage listeners/viewers to contact named members of Congress regarding upcoming votes in Congress during the designated pre-election periods. Yet, such grassroots lobbying is permitted by IRS rules, and is constitutionally protected.

Section 203 provides a qualified "permission" for corporations such as NRLC that hold 501(c)(4) IRS status ⁽²⁾, as well as 527 organizations, to engage in "electioneering communications," but only under an array of restrictions similar to those that currently apply to political action committees (PACs) -- e.g., elimination of several permissible funding sources, mandatory reporting to the government of the names of donors of more than $1,000, etc.

The Supreme Court has ruled that such restrictions may be applied only to express advocacy (i.e., communications that use explicit words to expressly urge a vote for or against a named candidate). Congress lacks authority, under the First Amendment, to restrict communications merely on grounds that they mention the names of officeholders or officeseekers. Commentary on the positions of specific, named politicians -- to which the legal term of art issue advocacy actually refers -- enjoys the highest degree of immunity from government regulation.

The First Amendment Forbids Mandatory "Disclosure" of Citizens Who Support Commentary on Causes and Politicians

Sections 201 and 203 effectively would prohibit nonprofit citizen groups like NRLC from using general funds for so-called "electioneering" (that is, politician-mentioning) communications, during the designated calendar zones. It would require segregated fundraising for such communications, and would require that the names of all donors of $1,000 or more to this segregated fund (over a two-year period) be reported to the government.

However, as the Supreme Court has recognized in such cases as NAACP v. Alabama (1963) and McIntrye v. Ohio Elections Commission (1995, a 7-2 decision), American citizens have a constitutional right to make donations to support advocacy on political causes without having their names reported to the government or otherwise made public -- an action which could subject some of them to disfavor in their communities, business boycotts, or other undesirable consequences. The Court has made it clear that mandatory "disclosure" of donors can only be applied to funds used for express advocacy -- which is already required by law.

Broad Definitions of "Contribution" and "Coordination With A Candidate" Cover Issue Advocacy and Therefore Violate the First Amendment

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 S. 27 (Section 214) would redefine "coordination" in extremely expansive terms.

It is already illegal for corporations to make "contributions" to candidates. Section 214 seeks to ban a wide variety of activities by incorporated groups, including issue-oriented advocacy groups like NRLC, through the device of defining those activities as "coordinated activity," and defining "coordinated activity" as corporate contributions -- thus rendering them illegal. The definitions of actions that establish such a "coordination" relationship are sweeping and complex, consuming five pages of the bill. Without question, they would cover activities routinely engaged in by advocacy organizations that communicate with elected lawmakers on behalf of the interests of their respective memberships. As such, the restrictions violate the First Amendment right to association, as well as free speech protections.

The heart of Section 214 is the re-definition of campaign "contribution" as anything of value provided by a person in connection with a Federal candidate's election who is or previously has been within the same election cycle acting in coordination with that candidate. . .(regardless of whether the value being provided is in the form of a communication that expressly advocates a vote for or against a candidate) . . . [emphasis added]

To cite just one example, under Section 214, a "coordinated" relationship would be established for an entire election cycle by a single communication with an elected representative or his staff about his "message." Thus, if early in a Congress, representatives of six groups met with Senator Doe to discuss what language they, and he, will use to collectively promote Doe's landmark bill to ban widgets, and Doe subsequently campaigns in part on his leadership on the widget-ban issue, all six groups arguably are irrevocably "coordinated" with Doe.

Once such so-called "coordination" is established, the "coordinated" organizations are flatly prohibited from spending money on any public communications deemed to be "of value" to Senator Doe -- by any medium, at any time of the year -- because such expenditures are defined by the bill as illegal corporate "contributions." For example, a group's literature promoting the widget-ban bill could be considered to be "of value" to Doe.

Moreover, even if these organizations have connected PACs, those PACs would be prohibited from engaging in independent expenditures on Doe's behalf of more than $5,000.

Thus, even communications that mention no specific candidate could become the subject of successful complaints to the FEC, if certain candidates or their supporters believe that they tie in with issues of public debate in a manner that may be "of value" to a candidate. For example, if a campaign involves ongoing debate between two candidates on whether partial-birth abortions should be banned, and NRLC purchases newspaper ads that describe partial-birth abortions in graphic terms, the pro-abortion candidate may well declare that such ads are something "of value" to a pro-life candidate, even if they mention neither candidate's name.

Questionnaires and Pledges

Section 214 also seeks to prohibit issue-oriented groups from soliciting information from candidates -- including incumbent members of Congress -- regarding their positions on issues, and then communicating that information to citizens in grassroots lobbying or voter education campaigns. The bill says that "coordination with candidates" includes a payment made by a person in cooperation, consultation, or concert with, at the request or suggestion of, or pursuant to any general or particular understanding with a candidate. . . [emphasis added] (p. 27)

This could include, for example, a "general understanding" that if a member of Congress fills out and returns an issue-group's questionnaire regarding his position on certain issues, his responses will be disseminated to interested members of the public - for example, in press releases or in "voter guides."

Section 214 also would apply to the common practice of issue-oriented organizations sending candidates standardized forms by which a candidate can "pledge" to endorse a certain legislative initiative -- for example, the balanced budget amendment, or the Equal Rights Amendment, or the McCain-Feingold bill -- with the "general understanding" that the sponsoring organization will disseminate reports regarding which candidates have signed the "pledge." Lest anyone think that this construction is far fetched, in 1996 the FEC's general counsel took the position that the organization U.S. Term Limits (USTL), a nonprofit lobbying corporation, had violated the Federal Election Campaign Act by disseminating a press release that praised congressional candidate Ron Lewis "for support of a crucial Congressional reform movement," and stating that an USTL staffperson was in the district to "draw attention to the differing stands" taken on that issue by Lewis and his named opponent. This occurred even in the absence of the type of statutory language that S. 27 would provide.

The Bill Presumes Coordination, In Violation of the Supreme Court's 1996 Decision, and Unconstitutionally Requires Forfeiture of Rights of Association

Section 214 re-defines what constitutes "coordination with candidates" to include a payment made by a person if, in the same election cycle, the person making the payment retains the professional services of any person who has provided those services in the same election cycle to a candidate . . . in connection with the candidate's pursuit of nomination for election, or election, to Federal office, including services relating to the candidate's decision to seek Federal office, and the person retained is retained to work on activities relating to that candidate's campaign. . . . the term "professional services" means polling, media advice, fundraising, campaign research, political advice, or direct mail services (except for mailhouse services) in support of a candidate's pursuit of nomination for election, or election, to Federal office. [emphasis added] (p. 29)

This language amounts to an unconstitutional penalty on free speech. In order to exercise its First Amendment right to speak, a corporate entity cannot be forced to forfeit its right to associate freely with legitimate providers of services -- such as direct mail vendors and pollsters -- as it sees fit. Furthermore, in some areas there may be only one or two vendors of a specific service that a PAC may require in order to conduct its independent expenditure. Thus, such a prohibition could impede the PAC's ability to conduct certain independent expenditures at all.

The First Amendment allows spending limits to be applied to an express advocacy expenditure only if that expenditure actually has been discussed between the candidate and the person or group conducting the expenditure. Coordination may not be "presumed" on the basis of some other type of relationship between the candidate and the speakers.

In Colorado Republican Federal Campaign Committee v. FEC (1996), the Supreme Court emphatically rejected the FEC's position that an expenditure by a political party may be "presumed" to be coordinated with the federal candidate nominated by that party. The constitutional test, in the Court's analysis, is whether the specific expenditure was in fact the subject of communication between those conducting the expenditure and the candidate (or his agents). ("We therefore treat the expenditure, for constitutional purposes, as an 'independent' expenditure, not an indirect campaign contribution" because, the Court said, "the record shows no actual coordination as a matter of fact." [emphasis added])

If the Constitution forbids applying a "presumption of coordination" even between a political party and a nominee of that party, then it clearly follows that it is unconstitutional to presume that a PAC expenditure is coordinated, merely because that PAC exercises its general free-association rights in the course of exercising its free-speech rights.

Advance Notice Requirements

The "disclosure" provisions of S. 27 (for example, Section 202 and Section 212) include requirements that "electioneering communications" and 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. But under the First Amendment, Congress lacks authority to demand that NRLC declare in advance when and where we intend to utter a politician's name to the public, just as it lacks authority to impose such a burden on newspaper editorial boards.

Endorsements of Groups By Members of Congress

Section 101 of S. 27 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" 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.

The following statement, for example, would certainly be considered an "attack" by some: "Senator McCain has introduced an awful bill that would restrict the right of pro-life groups to communicate with the public about the voting records of members of Congress. Please write to Senator Jones and urge him to oppose the bill." Likewise, "Senator Olson has voted to keep the brutal partial-birth abortion method legal, but the bill is coming up again soon. Please call Senator Olson and urge him to support the bill this time."

1. ¹ In reading S. 27 and other "campaign finance reform" bills, it is important to understand that the term "candidate" includes all incumbent members of Congress, unless they have announced their retirement, starting the day after any election. Thus, unless otherwise specified in a bill, a U.S. senator is a "candidate" beginning on the first day of his six-year term.

2. ² Donations to 501(c)(4) groups are not tax deductible to donors. The organization itself is tax-exempt, since it exists to advance a cause, not to make a profit.