February 24, 1999
RE: “Campaign Reform”: Shays-Meehan Bill (HR 417)
Dear Member of Congress:
We write to express the vigorous opposition of the National Right to Life Committee (NRLC) to the Shays-Meehan “campaign reform” bill (HR 417). This bill contains multiple provisions to severely restrict the ability of citizen groups, such as NRLC and NRLC’s affiliates, to communicate with the public regarding the positions and voting records of those who hold or seek federal office, and even regarding upcoming votes in Congress.
Under the Shays-Meehan bill, any incorporated advocacy group, national or local (other than a federal political action committee) would place itself at legal risk every time it disseminated a communication that expressed “support for” or “opposition to” a federal politician — whatever that means — in print or broadcast form (Sec. 201). Every such advocacy group, national or local, would place itself at legal risk every time it issued a communication to the public that might be perceived as being “for the purpose of influencing a federal election” – – whatever that means — in print, or on the airwaves, at any time of the year (Sec. 206). Such a communication may be illegal if it is merely deemed to be “of value” – – whatever that means — to an officeholder or officeseeker (Sec. 206). These and other restrictions would apply even to “legislative alert” communications dealing entirely with approaching votes in Congress. And, for the first time, the 1999 version of the bill (Sec. 1201) would impose a mandatory minimum one-year prison term for “knowing and willful” violations of these restrictions on speech regarding political figures and issues.
For details on the bill’s objectionable provisions, we refer you to the NRLC monograph titled, “An Analysis of the Speech-Restriction Provisions of the Shays-Meehan Bill,” which details the numerous provisions of the bill that conflict with First Amendment rights enunciated in multiple Supreme Court decisions. This analysis will be enclosed with the mailed copy of this letter. Merely to summarize, under the Shays-Meehan bill as introduced:
* 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 bill 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 a 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.” (See footnote on page 1.)
* 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. 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 206 of the bill. The bill contains a cosmetic provision that purports 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 206) The narrow “voter guide exception” to the Section 201 definition of “express advocacy” 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 bill 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 bill excludes lobbying activities conducted by persons registered under the federal Lobbying Disclosure Act from one of the ten Section 206 subsections defining “coordinated activity,” but not from other subsections that could be equally problematic. Moreover, the bill 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 bill.
* The bill’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 included the roll call votes on the Shays-Meehan legislation in our scorecard of key right-to-life votes of the 1997-98 Congress. If votes occur in this Congress on any measure that would restrict our right to speak to the public regarding the positions and voting records of those who hold or seek federal office, we anticipate that those roll calls will be included in our scorecard for the 106th Congress.
Thank you for your consideration of NRLC’s position on the Shays-Meehan measure. We would welcome the opportunity to respond to any questions you may have regarding our analysis of this legislation.
David N. O’Steen, Ph.D.
Carol Long Tobias
Director, NRL PAC