By NRLC Federal Legislative Office Staff
WASHINGTON (August 12) - - Over the objections of NRLC and other pro-life and pro-family groups, the House of Representatives has passed a "campaign reform" bill that would place sweeping and unprecedented restrictions on the right of citizen groups, such as NRLC and NRLC affiliates, to disseminate communications to the public that express viewpoints on the positions taken by federal politicians.
The Shays-Meehan bill passed the House on August 6 by a vote of 252-179. It was supported by 61 Republicans (about half of whom were pro-life), 190 Democrats, and one independent. It was opposed by 164 Republicans and 15 Democrats (of whom nine were pro-life Democrats).
The August 6 vote followed by three days a vote by which the House gave initial approval to the measure by a vote of 237 to 186. [Both the August 3 vote and the final vote on August 6 are shown on pages 28-29.]
The bill is strongly supported by President Clinton, by an array of special-interest groups such as Common Cause, and by the editorial boards of most newspapers.
NRLC Legislative Director Douglas Johnson commented, "It is dismaying that 252 lawmakers voted for a bill that places citizen groups in legal jeopardy merely because they express support for or opposition to the positions or votes of those who hold or seek federal office - - a right guaranteed by the First Amendment. We will urge senators to again block this attempt to restrict free speech about politicians."
"This bill has little to do with 'reforming' candidates' campaigns, and everything to do with protecting incumbent members of Congress from criticism," agreed NRLC Executive Director David N. O'Steen, Ph.D. "If this bill becomes law, it will be extremely difficult to advance public policy to protect unborn children."
The bill now goes to the Senate, where a very similar bill, the McCain-Feingold bill, was blocked earlier this year by a filibuster led by pro-life Senator Mitch McConnell (R-Ky.). On that occasion, supporters of the bill mustered 52 votes - - a majority, but eight votes short of the 60 needed to end a filibuster. (See roll call in March 11, 1998, NRL News, page 24.)
While Senate Democrats are expected to demand action on the bill in September, McConnell and Senate Majority Leader Trent Lott (R-Ms.) have said that there is no point in wasting more of the Senate's time on the measure this year.
Sen. John McCain (R-Az.), the lead sponsor of the Senate version of the bill, said in a written statement, "At this moment, we are still well short of the votes needed to invoke cloture, and the brief time remaining in this session makes another attempt at passing a Senate bill an exceedingly difficult task at best." But, he added, "the successful adoption of Shays-Meehan in the House might change some votes in the Senate."
Speech Restrictions
The Shays-Meehan bill would severely restrict the right of private citizen groups, including NRLC and NRLC affiliates, to educate the public regarding the positions and voting records of federal politicians. For example, it would make it unlawful for any group other than a federal Political Action Committee (PAC), at any time of the year, to issue communications to the public that express "support for or opposition to" a member of Congress or candidate for Congress, even if the communication deals with a politician's position on an issue or issues.
In addition, within 60 days of a primary or general election, citizen groups (except PACs) would be barred from even mentioning the name of a member of Congress or candidate for Congress in a radio or TV ad. This would apply, for example, to radio ads alerting pro-life citizens to upcoming votes in Congress on right-to-life issues.
53 Groups Oppose Bill
On July 13, House members received a letter signed by 53 organizations strongly opposing the bill.
"This legislation constitutes a direct assault on our fundamental right to comment on the actions of officeholders and office seekers, and to engage in effective grassroots lobbying regarding pending legislation," the letter said. "Therefore, our organizations regard the vote on the Shays-Meehan bill to be among the most important votes of the 105th Congress, and this roll call will be communicated to our members - - numbering collectively in the millions - - in a manner that underscores its importance."
Among the organizations signing the letter were NRLC, Christian Coalition, Family Research Council, National Rifle Association, the Ethics and Religious Liberty Commission (public policy arm) of the Southern Baptist Convention, Concerned Women for America, Empower America, and Steve Forbes' Americans for Hope, Growth, and Opportunity.
The House debated the measure intermittently for weeks, and considered dozens of amendments. However, all of the amendments to remove or greatly narrow the anti-free-speech provisions of the bill were opposed by the bill's sponsors, and all were defeated.
For example, pro-life Rep. John Doolittle (R-Ca.) offered an NRLC-backed amendment to exempt from the bill's restrictions those print or Internet communications that provide information or commentary on the voting record, or position on an issue, of a member of Congress or candidate for Congress. The amendment was defeated, 201-219, on July 14.
The bill's chief sponsors, Reps. Chris Shays (R-Ct.) and Marty Meehan (D-Ma.), accepted an amendment offered by bill supporter Rep. Linda Smith (R-Wa.), which Smith claimed would correct various provisions of the bill to which free-speech objections had been raised. However, NRLC and the Christian Coalition quickly sent letters to House members, stating that the amendment made only superficial changes in the bill, and did not truly correct the bill's unconstitutional provisions. [See text of NRLC letter, below.]
House Republican Whip Tom DeLay (R-Tx.) led the opposition to the Shays-Meehan bill.
"Whether they want to admit it or not, the supporters of this bill believe there is too much information about our government, that the American people are too stupid to sort out what is true and what is not . . . . I can think of nothing more self-righteous," DeLay said during the debate.
A typical expression of the viewpoint of bill supporters was offered by pro-abortion Rep. Jim Greenwood (R-Pa.), who strongly defended the bill's provisions restricting ads that criticize members of Congress and other candidates. Such ads "masquerade as information, when in fact they are the most clever and deceptive and nonproductive and nonsubstantive attacks on character and the record of candidates - - and they need to be managed, as free speech does throughout our society," Greenwood said.
What follows is the text of a letter sent by NRLC to members of the House of Representatives on July 27, reiterating NRLC's opposition to the Shays-Meehan "campaign reform" bill. The letter also explains why an amendment offered by Rep. Linda Smith (R-Wa.), and adopted, did not correct the fundamental problems with the bill. On August 6, the House approved the Shays-Meehan bill on a vote of 252-179.
RE: Linda Smith Amendment to Shays-Meehan
Substitute Does Not Fix First Amendment Violations
Dear Member of Congress:
We write to reiterate the strong opposition of the National Right to Life Committee (NRLC) to the Shays-Meehan "campaign reform" proposal, and to make it clear that NRLC's opposition will be in no degree lessened by the adoption of the pending amendment offered by Congresswoman Linda Smith.
When Congresswoman Smith offered her amendment on July 20, she represented that it would correct the aspects of the Shays-Meehan bill to which issue-oriented groups (such as NRLC and NRLC affiliates) have objected - - but this is untrue. In reality, the changes contained in the Smith Amendment range from purely cosmetic to marginal. With or without the Smith Amendment, the Shays-Meehan bill would place NRLC and NRLC's affiliates at risk every time a communication is disseminated to the public that expresses a value judgment that offends some particular federal politician or political party. Yet, commentary about those who hold or seek public office is at the very heart of what the First Amendment is intended to protect.
Under the Shays-Meehan Substitute, as amended by the Smith Amendment, the following would still be true:
° NRLC and NRLC affiliates would be at legal risk every time we disseminate a communication to the public that expresses clear approval or disapproval of a position taken by a federal politician, because such communications can be regarded as "express advocacy" under Section 201 of the bill, and therefore permitted only under the restrictive structure of a federal political action committee (PAC). The bill's general expansive definition of "express advocacy" applies not only for 60 days before a primary or general election (as many press accounts misreport), but every day of every year. The Smith Amendment deigns to grant permission for citizen groups (in print or on the Internet only) to express "agreement or disagreement with the record or position of the candidate," but only if the expression of opinion does not "express unmistakable and unambiguous support for or opposition to" a "candidate," and avoids words that "can have no reasonable meaning other than to urge the election or defeat" of a "candidate."
° In addition, it would remain flatly unlawful for NRLC, NRLC affiliates, or any other groups (other than federal PACs) to so much as mention the name of a Member of Congress (or other "candidate") for four months out of each even-numbered year in any broadcast communication. (The Smith Amendment did not modify this "name ban" in any way.) 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."
° Incumbent members of Congress and issue-oriented groups would be at constant risk of inadvertently entering into a "coordinated" relationship, merely by engaging in routine two-way discussions on public policy matters, or by purchasing professional services from a common provider during a two-year period, or by running afoul of any of the ten legal tripwires for "coordination" found in Section 205 of the bill. The Smith Amendment merely made a minor change to one of these ten provisions, theoretically to allow mailing of "voter guides," but the bill still presumes "coordination" if a candidate and an issue-group purchase many types of professional services (e.g., "polling, media advice, fundraising, campaign research") from a common provider within a two-year period.
° Once thus deemed to be "coordinated" - - at least in the eyes of some political opponent poised to file a complaint - - it would be illegal for NRLC or any other incorporated issue-oriented group to disseminate any communication to the public that is considered to be "of value" to a Member of Congress or other candidate, "regardless of whether the value being provided is a communication that is express advocacy" (Section 205). The narrow "voter guide exception" to the Section 201 definition of "express advocacy," as added by the Smith Amendment, is simply irrelevant here, because that "exception" applies only to "uncoordinated" groups, and because the "anything of value" ban explicitly applies "regardless" of whether a communication contains "express advocacy."
° The Smith Amendment does not truly protect issue-oriented groups from becoming enmeshed in the "coordination" net merely through routine two-way communications with Members of Congress about public policy matters. The Smith Amendment excludes lobbying activities conducted by persons registered under the federal Lobbying Disclosure Act from one of the ten Section 205 subsections defining "coordination," but not from other subsections that could be equally problematic. Moreover, the Smith Amendment leaves entirely unprotected the thousands of state and local nonprofit groups, formed to advocate on public policy issues, that both communicate with their elected representatives regarding pending legislation and communicate with the local public regarding pending legislation, but that are not required to register with Congress as "lobbyists." For example, NRLC is registered under the Lobbying Disclosure Act, but NRLC has 50 state affiliates and 3,000 local affiliates, none of which is required to register as a federal lobbyist, and none of which is protected by the Smith Amendment.
° The Smith Amendment's "voter guides" provision permits groups to send and receive written questionnaires from candidates, but does not permit interviews or verbal communications covering the same issues (except, of course, for newspaper editorial boards, which are exempt from this and all other restrictions in the Shays-Meehan bill).
The right of NRLC and NRLC affiliates to communicate with the public on the positions of officeholders and officeseekers on right-to-life issues, and regarding upcoming votes in Congress, is critical to the entire right-to-life cause. Therefore, NRLC intends to include the roll call vote on the Shays-Meehan Amendment in our annual scorecard of key right-to-life votes of the 105th Congress. Moreover, in evaluating the records of incumbent lawmakers, heavy weight will be given to each lawmaker's vote on this assault on our First Amendment rights. Thank you for your consideration of NRLC's position on the Shays-Meehan measure.
Sincerely,
David N. O'Steen, Ph.D.
Executive Director
Douglas Johnson
Legislative Director
Carol Long
Director, NRL PAC
1. On a controversial issue such as abortion, there is
no value judgment that can be expressed that would not provide a basis for
legal complaints under these expansive and ambiguous definitions. Would
the following "opinions" be lawful or not? "Congressman Doe
voted to allow the brutal partial-birth abortion procedure to continue."
"Congressman Jones has consistently voted to defend the rights of
unborn children." "Congressman Smith voted to strip women of their
constitutional right to control their own bodies."