McCain-Feingold Passes, Broad Coalition Takes Law to Court

WASHINGTON -- Within hours of its passage, "campaign finance reform" legislation that places substantial new restrictions on free speech about politicians was challenged in court. The National Right to Life Committee is among many citizen groups to file legal challenges to the so-called "Bi-partisan Campaign Reform Act," popularly referred to as "McCain-Feingold." Unless struck down by the federal courts, most of its restrictions will take effect after the November 5 general election.

As NRL News goes to press, opposition continues to grow. Senator Mitch McConnell (R-Ky.) held a press conference April 10 to announce that nearly two dozen additional co-plaintiffs have joined the challenge he brought against the law. The coalition which includes National Right to Life, ranges from the ACLU on the left, to the Christian Coalition on the right.

The suit was filed in the only court where the act said a suit could be brought -- the U.S. District Court for the District of Columbia. Congress also specified that the appeal from the district court will skip the court of appeals and go directly to the United States Supreme Court. The case is expected to move rapidly to the Supreme Court.

The legislation became law after a six-year effort led by Senators John McCain (R- Az.) and Russell Feingold (D-Wi.) in the Senate, and Reps. Chris Shays (R-Ct.) and Marty Meehan (D- Mass.) in the House. NRLC was among many citizen groups to strongly oppose the legislation. Congressional opposition was led by Senator McConnell (R-Ky.) and Rep. Tom DeLay (R-Tx.), among others.

The House of Representatives approved the bill (H.R. 2356) on February 14, 240- 189. (See March NRL News, page 1.) Senate approval, by a vote of 60-40, followed on March 20. (See roll call, page 31.)

President Bush signed the bill into law on March 27. The same day, James Bopp, Jr., NRLC general counsel, and other lawyers for Senator McConnell filed suit.

NRLC joined the suit to defend its right to broadcast issue advertisements that tell voters where candidates stand on pro- life issues. "This law simply but effectively gags citizen groups such as NRLC," Bopp explained. "If NRLC can't, for example, describe partial-birth abortion and say that a candidate supports it, the public won't get that information from the networks! This law is a direct assault on our ability to get our message out."

The act has been portrayed by the news media (who, because other voices would be muzzled, gain stood to power by its passage) as denying political parties the use of "soft money"--donations made to pay for such activities as issue advertising, voter registration, and voter-mobilization campaigns. While misguided, this restriction is only a small part of the new law and of the problems it presents.

The bill prohibits incorporated groups and unions from broadcasting TV or radio ads that refer to a federal candidate, in the area where the candidate is running, for 30 days before a primary or 60 days before the general election. Federal political action committees (PACs) would be allowed to purchase such ads, but PACs operate under a host of restrictions, including severe limitations on their fundraising.

The ban would apply even to ads that merely seek to alert citizens to up-coming votes in Congress. For example, during any of the blackout periods, it would be unlawful for a non-PAC to purchase a radio ad that ended, "Please call Congressman Jones and urge him to vote for the Partial-Birth Abortion Ban Act next week" (if Congressman Jones is a candidate).

But the United States Supreme Court in the landmark decisions of Buckley v. Valeo (1976) and FEC v. Massachusetts Citizens for Life (1986) declared that unfettered "issue advocacy" is protected from all governmental regulation. The High Court said that the government could only regulate "express advocacy," which is a communication that employs "explicit words" to "expressly advocate the election or defeat of a clearly identified candidate for federal office."

However, because the 60-day gag rule is a blanket prohibition, McCain-Feingold sweeps issue advocacy within it as well.

McCain-Feingold also includes a section that would radically re- write what constitutes "coordination" between a citizen group and a member of Congress. The new language instructs the FEC to create rules defining "coordinated" activity in a way that is very expansive, making issue ads into illegal contributions as a result of ordinary cooperation with legislators on promoting issues.

The goal of the campaign finance "reformers," of course, is to get the Supreme Court to reconsider and overrule the express advocacy test that has been the law of the land for 26 years. They will be marshaling expert witnesses and studies to try to demonstrate that the government has a "compelling interest" in regulating issue advocacy.

In addition to Jim Bopp, McConnell's team of First Amendment experts and litigators includes Kenneth Starr (former federal judge and solicitor general), Floyd Abrams, Bobby R. Burchfield, Jan Baran, and Kathleen M. Sullivan (dean of the Stanford University Law School).

At the April 10 press conference, Sen. McConnell pointed out the breadth of the coalition opposing the new law. He also summarized McCain-Feingold's threat:

"We are here to affirm that America's premier political reforms were enacted not last month, but 200 years ago, in the United States Constitution. ... We wage this constitutional battle to protect for all Americans the freedom to speak out freely on issues and elections, to exercise their First Amendment right to petition their government for a redress of grievances, and to associate freely with like-minded people to advance shared values and concerns. These freedoms are the core of American Democracy."

For additional information about the provisions of the Shays- Meehan bill that would adversely affect NRLC and other pro-life groups, see NRLC's letters to House members and other materials posted on the NRLC website under "Campaign Reform and Free Speech," at www.nrlc.org/Federal/Free_Speech/index.html.