Campaign Finance "Reform"

Complying and Living With McCain-Feingold:

The Big Picture

By James Bopp, Jr., J.D., & Richard E. Coleson, J.D.

"This is a sad day for the freedom of speech," declared Justice Scalia in his dissent to the December 10 decision of the United States Supreme Court in McConnell v. FEC. The Court had just upheld nearly all of the McCain-Feingold legislation formally known as the Bipartisan Campaign Act of 2003 (BCRA). Scalia noted that the Court had recently "sternly disapproved of restrictions upon such inconsequential forms of _expression as virtual child pornography... tobacco advertising... dissemination of illegally intercepted communications..., and sexually explicit cable programming." "Who could have imagined," Scalia continued, "that the same Court . . . would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."

The McConnell Court upheld BCRA's two central features: (1) a broad ban on the use of so-called soft money in political campaigns and (2) a prohibition on "electioneering communications" designed to eliminate broadcast issue advertisements before elections.

Issue ads were widely used by ideological nonprofit corporations to call the attention of voters to the positions of the candidates on key public issues, such as the right to life. Under prior legal precedent, government could not regulate a communication naming candidates unless the communication contained explicit words expressly advocating the election or defeat of a clearly identified candidate.

In a 5-4 decision, a new majority set aside this "express advocacy" test, three decades of settled law, and an effective way in which persons of ordinary means pooled their resources to make their voices heard on critical public issues. And while the watchdog groups of persons of ordinary means are gagged by BCRA, wealthy individuals and the often biased news media remain free to broadcast their comments on issues.

While the BCRA ban on electioneering communications currently extends only to broadcast communications, the McConnell court recognized that BCRA was only a first step. States that have instituted similar black-out periods have not limited them to broadcast communications, but have included all forms of communication. So states and even Congress may be tempted to ban voter guides, literature drops, phone banks, and Internet communications that refer to candidates before elections.

The electioneering communications ban also imposes an enormous burden on grassroots lobbying. The time before elections is often a busy time in Congress as incumbents rush bills to passage before commuting home for last-minute campaigning. If a pro-life organization is fighting to pass or defeat legislation, it often needs to broadcast appeals to grassroots supporters to call their legislators and urge them to vote for or against a pending bill.

But if it is within the 30/60 day blackout periods, no broadcast ads are permitted that refer to the candidate. There is no time for mailings, phone banks reach too few constituents, and no other medium is as effective as broadcasting. And if a candidate is a public official who abuses the powers of her office in the two months before an election, no citizen group can broadcast a criticism unless it uses PAC money or comes under a narrowly drawn exception known as the "MCFL" exception (explained below).

One problem with PAC money is that it can only be raised in limited contribution amounts and, in the case of an internal PAC of a membership group, can only be solicited from members of the group. So "we the people" who established the Constitution to permit participatory government are shut out of it at crucial times for substantial time.

People who believe in participatory democracy and respect the Constitution are wondering what there was that Congress and the Supreme Court couldn't understand about the First Amendment's clear command that "Congress shall make no law . . . abridging the freedom of speech." The McConnell dissent clearly portrayed BCRA for what it is - - an incumbent protection program. But repealing the electioneering communications ban in Congress or reversing McConnell in the Court awaits another day (and the change of one justice from the majority).

For now, the focus must be on how to avoid BCRA's land mines and continue to engage in effective advocacy of pro-life issues. Note that the following discussion is a broad-brush painting of the new landscape. Organizations should study the materials and regulations available at the FEC website ( for more specific details and seek competent legal counsel in this increasingly complex area concerning planned activities.

There are two key new pitfalls to avoid. First, corporations may not fund "electioneering communications" unless they do so through a PAC or, in the case of an ideological non-profit corporation, come under the narrow "MCFL" exemption. (How groups qualify for their exemption is explained below.)

As noted, an electioneering communication is a broadcast (including cable and satellite) communication that refers to a clearly identified candidate for federal office during sixty days before an election or thirty days before a primary, caucus, or convention that selects candidates. It also must be "targeted," meaning that the broadcast can be received by 50,000 persons in the congressional district of a candidate; or in the candidate's state for Senate candidates; or in the same state conducting a primary, caucus, or convention for presidential and vice-presidential candidates; or anywhere in the nation before a general election for presidential and vice-presidential candidates.

Second, be careful that your communications with candidates don't fall into the new definition of "coordination" that converts independent expenditures into contributions to candidates. While this will require further elaboration, be aware that Congress mandated that the new FEC regulations could not require actual agreement between the candidate and an advocacy group to define "coordination." According to 109.20, "coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate's authorized committee, or their agents, or a political party of its agents."

What can pro-life groups do to maximize their issue advocacy in light of the new law? Four key things should be considered.

First, raise lots of PAC money. The National Rifle Association was in the news for asking its members to pay their membership dues and then pay an additional twenty dollars to its PAC. An organization can make unlimited electioneering communications or independent expenditures with PAC money. PAC money will also be advantageous in the post-McConnell world if legislatures take advantage of the Court's endorsement of further restrictions on electioneering communications that go beyond broadcast ads to include other types of communications referencing a candidate.

Second, develop lots of members. A corporation cannot be limited in communicating to its members (although some reporting is required at certain levels). To qualify as a member, the individual must basically pay annual membership dues and make an affirmative act indicating a desire for membership. This option does not help with broadcast ads (which can be heard by persons who are not members), but it will help if legislatures seek to block nonbroadcast communications referencing candidates before elections. And a large body of members provides a large pool to which PAC solicitations may be made.

Third, be a "qualified nonprofit corporation" (known as an MCFL-type). Such a corporation can make both independent expenditures and electioneering communications. Under the FEC regulations, for a pro-life organization to be qualified it must (1) be organized for ideological purposes, (2) not engage in business activities, (3) have no shareholders or other persons with financial disincentives to disassociating with the corporation, (4) not be established by, or receive contributions from, a business corporation or a labor union, and (5) qualify as a nonprofit corporation under 501(c)(4) of the Internal Revenue Code.

Fourth, operate a bonafide newspaper. According to the FEC regulations, costs for publishing news stories, commentaries, and editorials by a newspaper is not an "expenditure" (and so not an independent expenditure or an electioneering communication). While what it means to be a bonafide newspaper is not defined in federal statutes or regulations, the Supreme Court discussed some expectations in the MCFL case. It noted that a large-production "Special Edition" (with a voter guide) would not qualify because it was not published by the regular newsletter staff, was not limited to the regular readership, was not on a regular schedule, and did not look like the usual newsletter with its masthead and volume and issue number.

In the past, these options have not been utilized to the extent now necessary because the Supreme Court considered itself the guardian of the First Amendment and protected issue advocacy. Until BCRA and McConnell are relegated to history's landfill, pro-life groups should press on with determination and use the tools at hand to defend innocent human life.