Campaign
Reform
Let's Not Give Politicians The Power
To Decide What We Can Say About Them
BY DOUGLAS JOHNSON AND MIKE
BEARD
Executive Summary
Lawmakers of both parties have proposed "campaign
reform" bills that would curtail the right of corporations
(including issue-oriented advocacy organizations) and labor
unions to communicate with the public about those who hold
or seek public office. The really important question for
congressional supporters of the various proposals is this:
where in the world do you think you get the authority to
regulate the political speech of American citizens?
Those proposals violate the First
Amendment, which the Supreme Court has repeatedly held to
provide the highest degree of protection for issue advocacy,
including explicit commentary on the merits, positions, and
actions of office holders and office seekers. The right to
attempt to persuade our fellow citizens of the issues they
should weigh in casting their votes is as fundamental as the
right to vote.
Unfortunately, the news media have
generally been promoting speech-restrictive proposals rather
than defending the First Amendment -- the nation's paramount
"election law."
Sen. Max Cleland (D-Ga.) is an offended
politician, and he intends to do something about it. In the
weeks leading up to a May 20, 1997, vote in the U.S. Senate
on the Partial-Birth Abortion Ban Act, three different
organizations ran radio and television ads in Georgia,
urging his constituents to contact Cleland's office to
encourage him to vote for the bill.
The Associated Press reported that that
effort "produced hundreds of calls to Clelan's offices, but
it failed to persuade him to back the ban. What it did,
instead, was reinforce his commitment to changing the
nation's campaign finance laws"1 -- such as the bill
sponsored by Sens. John McCain (R-Ariz.) and Russ Feingold
(D-Wis.), of which Cleland is a cosponsor.
Douglas Johnson is legislative director
for the National Right to Life Committee. Mike Beard is
president of the Free Speech Coalition, an umbrella
organization of diverse issue-oriented groups that are
working together to protect the First Amendment rights of
nonprofit organizations. He also heads the Coalition to Stop
Gun Violence.
One may well ask what connection exists
between ads that merely attempt to drum up public support
that might persuade Senator Cleland to vote for a certain
bill -- ads run 16 months before the next general election
an 5 1/2 years before Sen. Cleland next faces an election --
and "campaign finance reform."
Quite a lot, actually. Behind the cover
of "campaign finance reform," many lawmakers of both parties
wish to establish sweeping federal controls over the
communications of incorporated issue-oriented groups.
The McCain-Feingold bill (S. 25) and its
cousins, the Shay-Meehan and Farr-Gephardt bills (H.R. 493
and H.R. 600), bristle with provisions that would place
severe and unprecedented restrictions on the right of
corporations (including issue-oriented advocacy
organizations) and labor unions to communicate with the
public regarding the positions of those who hold or seek
public office.2 Those provisions are regarded by a broad
spectrum of incorporated issue-oriented citizen groups as
gross infringements on a type of speech that enjoys the
highest degree of protection under the First
Amendment.
The dangers of that approach are well
illustrated by Senator Cleland's annoyance at the
anti-abortion ads run in Georgia, which he refers to as
"independent expenditures," and which he apparently believes
should be regulated by federal law.
Cleveland also complained to the AP
reporter that he believed the timing of the Senate vote was
delayed for several days to allow groups supporting the ban
to run more ads aimed at key senators -- an example, he
said, of "independent expenditures beginning to dictate not
just the elections, but the agenda and the schedule of the
Senate."3
Can Senator Cleland be unaware that the
prime sponsors of the McCain-Feingold bill have decided
against pushing for floor action on that bill in order to
allow Common Cause, a tax-exempt corporation, to complete a
multi-million-dollar national petition drive in favor of the
bill? Or is it just that he sees nothing sinister in that
type of political activity?
The really important question, for
Senator Cleland and other supporters of the McCain-Feingold
bill and similar legislation, is this: where in the world do
you think you get the authority to regulate the political
speech of American citizens and citizen groups?
That the McCain-Feingold bill would
impose new controls on political speech is beyond dispute.
Senator McCain has acknowledged that his bill will place new
restrictions on communications from incorporated groups to
the public about members of Congress. However, he emphasizes
that he has included a provision to allow such groups to
publish simple voting records of members of Congress --
provide that those congressional "scorecards" do not contain
any critical commentary on a lawmaker's votes.4
But there is a constitutional right to
engage in constructive criticism of our elected
representatives, and citizens do not need the permission of
members of Congress to publish their voting records, or
commentary on those voting records.
We are associated with, respectively, the
National Right to Life Committee (NRLC) and the Coalition to
Stop Gun Violence (CSGV). Both organizations are
incorporated, not-for-profit entities that exist to advance
the public policy goals of their members: for NRLC,
protecting the right to life (Primarily by curbing abortion
and euthanasia), for CSGV, reducing the supply of and the
demand for handguns. The public policy agendas of those two
organizations have little if anything in common, but we are
in agreement that certain pending "campaign reform"
proposals pose a threat to organizations that seek to
communicate with the public about the actions of lawmakers,
and would-be lawmakers, on any issue.
As we see it, the issue boils down to
this: some incumbents propose to use their authority to
prevent such groups' sometimes unflattering communications
about their votes and positions from reaching their
constituents. Through multiple mechanisms, these bills would
give politicians and political appointees unprecedented
power to regulate "political" speech.
Yet the First Amendment provides that
"Congress shall make no law
abridging the freedom of
speech, or of the press." Speech about "political" matters
is, the Supreme Court says, "at the core of our electoral
process and of the First Amendment freedoms."5
In its landmark 1976 free speech ruling
in Buckley v. Valeo, the Supreme Court stressed that
infringements on political speech are not made
constitutional merely by casting them as restrictions on
spending.6 Obviously, it is impossible for any group to
speak to any sizable audience about issues or policymakers
without spending a substantial amount of money. If the
government could evade the First Amendment's prohibition on
"abridging the freedom of speech" merely by restricting the
expenditures that are necessary for speech, then the
government would have the power to regulate virtually all
forms of political discourse -- other than the soapbox in
the park -- including even the institutional press.
The speech-restriction provisions of
these bills deserve much more intense public scrutiny and
debate than they have received to date -- and, we believe,
they warrant rejection as a pernicious departure from our
nation's democratic traditions.
Gagging Political Adversaries
Incumbents' support for such speech-restriction
mechanisms is often motivated by animus toward specific
groups whose communications they find offensive. Rep. Sam
Farr (D-Calif.) wrote in Roll Call regarding his desire to
curb literature distributed by NRLC and by the Christian
Coalition, the latter group having been so insolent as to
engage in "distributing material condemning the voting
records of elected officials who are pro-choice."7 And Rep.
Bill Thomas (R-Calif.) earlier this year cited "biased TV
ads by the AFL-CIO as justification for proposing a law to
ban incorporated groups or unions from issuing any "mass
communication" that even mentions a member of Congress or
challenger within 90 days of an election, or that identifies
a candidate through the use of his likeness.8
Some people argue that such restrictions
are justified in order to diminish "special-interest"
influences and enhance the influence of the "ordinary"
citizen. But groups such as ours are made up of many
ordinary citizens who pool their modest financial resources
in order to advance the policy positions that they favor.
The average donation to the organizations with which the
authors are associated, for example, is under $35.
When citizens choose to advance their
political opinions through incorporated organizations, they
are exercising their constitutional right to associate to
advance their views of the public interest. That makes them
no more or less a "special interest" than the leading
organizations that support the speech-restrictive "campaign
reform" bills, Common Cause and the League of Women Voters,
both of which lobby for long lists of specific governmental
policies far beyond the spheres of election law and ethics
in government.
One leading advocate of the "equalizing
speech" rationale is former Senator Bill Bradley (D-NJ), who
in 1996 wrote that unless limits on "campaign" spending are
approved, "the powerful can continue to broadcast their
voices, while the less powerful are barely heard."9 Months
later, Bradley (a possible year 2000 presidential candidate)
joined CBS Evening News as a commentator and reporter --
thereby demonstrating that, indeed, "the powerful can
continue to broadcast their voices." Of course, he continues
to advocate governmental restrictions, including a
constitutional amendment, to curb the right of incorporated
citizen groups to communicate to broad public
audiences.
As the Supreme Court correctly observed
in Buckley, "The concept that government may restrict the
speech of some elements of our society in order to enhance
the relative voice of others is wholly foreign to the First
Amendment, which was designed to secure the widest possible
dissemination of information from diverse and antagonistic
sources."10
Influencing Voters
In Buckley and successor cases, the Supreme Court has
been emphatic that the First Amendment provides an absolute
constitutional shield for issue advocacy, including positive
and negative commentary on the merits of those who hold or
seek public office. That influencing voters' decisions is a
motivating factor in any specific issue-advocacy
communication to the public does not lessen the First
Amendment protection of that speech. Ultimately, the right
to attempt to persuade our fellow citizens of the issues
they should weigh in casting their votes is as fundamental
as the right to vote itself.
As the Supreme Court put it in Buckley,
"As long as persons and groups eschew expenditures that in
express terms advocate the election or defeat of a clearly
identified candidate [i.e., express advocacy], they
are free to spend as much as they want to promote the
candidate and his views."11
The Court also observed that "the
distinction between discussion of issues and candidates and
advocacy of election or defeat of candidates may often
dissolve in practical application. Candidates, especially
incumbents, are intimately tied to public issues involving
legislative proposals and governmental actions."12 In short,
it would be impossible for the government to determine to
what degree a given communication influences ballot-box
decisions -- and unconstitutional even to try. Moreover,
such a law would entangle Congress, the Federal Election
Commission, and the courts in an endless quagmire of
monitoring and regulating speech.
Redefining Express Advocacy
In Buckley the Supreme Court permitted certain
restrictions on express advocacy, defined as communications
that explicitly urge the election or defeat of a specific,
identified candidate -- but emphasized that such
restrictions survive scrutiny under the First Amendment only
if express advocacy is defined in an exceedingly precise and
narrow manner.
The Court itself then adopted what it
calls the "bright line" definition that it said is required
by the First Amendment. "Express advocacy," the Court held,
covers only 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.'"13 All other types of commentary on issues,
office-holders, and office seekers are considered issue
advocacy.
Under current law, it is generally
illegal for corporations or unions to spend money for
express advocacy. (There are certain narrow exceptions to
that ban, but they are of little pertinence to our
discussion here.) Therefore, if Congress had the authority
to expand the Supreme Court's definition of express advocacy
to cover some or all types of issue advocacy, that would
have the effect of automatically making it illegal for
corporations and unions to spend money for those types of
issue advocacy as well.
That prohibition would affect nonprofit,
issue-oriented advocacy groups of every persuasion (as well
as for-profit corporations). With limited exceptions, it
would be impractical and legally imprudent for citizens to
associate and conduct enterprises involving substantial
amounts of money without incorporating. Organizations that
are formed to promote various specific ideas and public
policies typically form not-for-profit corporations and
obtain 501 (c) (4) status from the Internal Revenue
Service.
Under that classification, donations
received by the corporation are not tax-deductible to the
donors, but neither are the donations subject to a corporate
tax. (If the corporation also receives income from business
enterprises, however, that income is taxed.) The limited
tax-exempt status of such nonprofit corporations is not a
"benefit" conferred by the government but merely a
recognition that the corporation exists to promote a cause,
not to make a profit. Such citizen groups have the same
constitutional right to free speech as do individual
citizens.
From the Supreme Court on down, the
federal courts have repeatedly held that attempts by the FEC
and state legislatures to change the "bright line"
definition of express advocacy violate the First Amendment.
The clarity of the First Amendment jurisprudence on that
point is well illustrated by a ruling handed down by the
U.S. Court of Appeals for the Fourth Circuit on April 7,
1997, in Federal Election Commission v. Christian Action
Network.14
The Fourth Circuit harshly chastised the
FEC for taking action against the Christian Action Network,
an incorporated issue group, for producing a TV ad that
severely criticized Bill Clinton's position on issues
affecting homosexuals. That ad, which was broadcast shortly
before the 1992 election, was very much of the type that
many "reformers" and reporters would label a "disguised"
campaign ad -- but it did not contain any words expressly
advocating the defeat of Bill Clinton.
The FEC argued that the ad, taken as a
whole, should be regarded as a campaign ad. The Fourth
Circuit emphatically rejected that claim and held that the
First Amendment forbids any government regulation of such
candidate-criticizing speech, unless it contains express
advocacy as defined by the Supreme Court. Moreover, the
court ordered the FEC to pay the attorneys' fees for the
Christian Action Network, on grounds that the courts have
instructed the FEC regarding the First Amendment for over 20
years, and the FEC has no "substantial justification" for
its persistent attempts to regulate such speech.15
The First Amendment's protection of
political speech also condemns the definition of express
advocacy contained in the McCain-Feingold bill, where it
covers, among other things, any "communication that is made
through a broadcast medium, newspaper, magazine, billboard,
direct mail, or similar type of general public communication
or political advertising," that costs more than $10,000,
that "refers to a clearly identified candidate," and that "a
reasonable person would understand as advocating the
election or defeat of a candidate," if that communication is
disseminated 30 days before a primary or 60 days before a
general election.16 The Shays-Meehan bill applies that
standard to expenditures of even $1, and the Farr-Gephardt
bill applies a similar elastic standard throughout the
two-year election cycle.17
Recently, there have been published
reports that McCain and Feingold have agreed to revise their
bill to adopt a different standard -- perhaps to simply
prohibit any incorporated group from issuing, for some set
period before an election, communications to the public that
even contain the name or likeness of a member of Congress or
a candidate.18 Advocates of that approach, such as pundits
Norman Ornstein and Thomas Mann, say that it provides a
simple "bright line" standard.19 Sure it does. The problem
is that the bright line cuts through the heart of the First
Amendment. It would prohibit every issue-oriented group in
America from commenting on the votes, statements, or
positions of those who hold or seek public office, and the
duration of the "speech blackout period" would be determined
by politicians.
No More Scorecards
Both the current McCain-Feingold "reasonable person"
standard and the Ornstein-Mann "name or likeness" standard
would ban the types of congressional scorecards that
issue-oriented groups such as ours publish from time to
time. Such scorecards do not, of course, consist merely of
charts of roll call votes with antiseptic explanations.
Rather, they include material that explains what was at
stake in each vote, with commentary -- even sharply worded
commentary at times -- reflecting the organizations'
judgments on the policy consequences that should be imputed
to those who voted one way or another.
For example, NRLC might take note of
those who "voted to allow the brutal practice of
partial-birth abortion to continue without restriction,
"while a group on the opposing side might describe pro-life
lawmakers as having "voted to strip women of their
reproductive rights." CSGV might characterize a lawmaker as
having "voted to increase the supply of cheap handguns,"
while an opposing group might say that lawmaker "voted to
protect Second Amendment rights." Under these bills,
distribution to the general public of such value-laden
commentary on the votes or positions of politicians would be
regarded as illegal corporate (or union) campaign
expenditures.
McCain likes to point to an "exception"
in the bill to permit "the publication or distribution of a
communication that is limited solely to providing
information about the voting record of elected officials on
legislative matters and that a reasonable person would not
understand as advocating the election or defeat of a
particular candidate."20
That "exception" merely highlights the
underlying unconstitutional attempt to govern the content of
citizens' speech. The "exception" would spell out lawmakers'
standards for what they find tolerable on a congressional
scorecard. Under that "permission clause," even simple
information on matters other than votes -- for example, a
notation that Senator Doe had cosponsored a certain noxious
bill -- would be outside the congressionally approved speech
zone. Value-laden commentary would run afoul of both the
"solely" test and the "reasonable person" test.
Policing Speech
The speech-restrictive character of the McCain-Feingold
bill was highlighted in an exchange between McCain and
Washington Post political writer David Broder on the
February 23 edition of Meet the Press. Broder made reference
to NRLC's objection to the bill's definition of express
advocacy and then asked McCain, "Should you have a right to
say, 'Dave Broder is running for office, but he has voted
against the interests of the young people and the senior
citizens in this country,' period? Should you have that
right?"
McCain responded, "I think informing the
public is perfectly legitimate. But to launch an attack on
me or, in this case, Senator Feingold, in my view, is their
participation in a political campaign, and therefore, they
might be subject to some kinds of limitations."21
"Some kinds of limitations" was a
masterful understatement. Under the McCain-Feingold bill and
its cousins, if a communication contains express advocacy,
then it is flatly illegal for a corporation (issue oriented
or otherwise) or union to issue it during the defined
speech-restriction time period, because it is defined as an
illegal corporate or union campaign expenditure (or
"contribution"). Violations would subject the speaking
organization to stringent civil penalties (and in some
circumstances, even to criminal prosecution).
It is understandable that, in sheer
self-interest, some incumbents would like to prevent or
impede the dissemination of their voting records to
constituents who are likely to disapprove of their votes on
given issues. It is understandable, but it is also
constitutionally impermissible.
Advocates of these bills say they intend
to diminish the advantages of incumbency. That argument is
ironic as applied to the speech-restriction provisions,
which would operate most often as "incumbent protection"
devises. After all, it is generally advantageous to
challengers that incumbents have been forced to take
positions on hundreds or thousands of very specific public
policy issues by casting recorded votes. However, the
vulnerability of incumbents would be diminished if
issue-oriented groups were prevented from disseminating
meaningful, interpretive scorecards to citizens with an
interest in specific issues (abortion, labor issues,
environment, whatever).
To further illustrate how
McCain-Feingold's ban on "attacks" would work in practice:
NRLC buys a newspaper ad that says that Senator Doe has
"voted three times to allow the brutal partial-birth
abortion procedure to remain legal." Meanwhile, the CSGV
puts out a press release announcing its "Dangerous Dozen,"
the 12 members of Congress selected as most strongly opposed
to handgun controls. Senator Doe, who no doubt considers
himself the "reasonable person" spoken of in the bill,
reviews those two communications and concludes that they are
intended, in part, to motivate some of his constituents to
vote against him -- that they constitute an "attack" or are,
in the bill's language, implicitly "advocating the
defeat of a candidate." Senator Doe acts on that conclusion
by filing a complaint with the FEC. Under the bill, the FEC
would have greatly expanded powers to act as a federal
political-speech police force and would investigate whether
the disputed communication was "made for the purpose of
advocating the election or defeat of the candidate, as shown
by one or more factors such as a statement or action by the
person making the communication."22
That would be an open-ended "hunting
license" for government policing of speech -- mandating not
only government review of the content of speech but also the
ferreting out and extraction by force of law of any
"statement or action by the person making the
communication," at any time or place, that might shed light
on the degree to which the speaking organization hoped that
its communication might influence voters. For example, the
federal "speech cops" might rummage around in an
organization's files until they uncovered a "smoking gun" --
such as a statement by an organizational president in a
membership newsletter, published a year earlier, asserting
that those who voted for a disfavored bill "should be
retired to private life."
The prospect of facing such intrusive and
open-ended investigations by federal speech cops, coupled
with the stringent fines and other sanctions that would be
applied to those who flunked the nebulous "reasonable
person" test, would be sufficient to deter many groups from
engaging in any kind of critical commentary about a person
who holds or seeks federal office -- or even favorable
commentary, since that would be subject to complaints by
political opponents of the praised politician.
Chilling Effect
The "chilling effect" of these bills would be especially
pronounced with respect to the activities of
nonprofessional, volunteer, grassroots citizen activists,
who make up the backbone of our movements and many others.
Full-time professional issue-activists in Washington can
master complex regulatory requirements and consult
frequently with attorneys specializing in federal election
law -- but that is not a practical option for people who are
putting out issue-advocacy newsletters and brochures from
their basements and kitchens. Rather than risk violating
federal law, they will simply refrain from commenting on the
actions of federal officeholders -- which is precisely the
politicians' intent.
Some have responded to those objections
by arguing that, although the bills restrict speech
regarding candidates by incorporated entities or unions,
political action committees (PACs) would still be allowed to
engage in such speech. Even if that were the only
restriction placed on such speech, it would still have a
severe "rationing" effect, because PACs are already subject
to a host of stringent restrictions on both their
fundraising and their expenditures. Moreover, it is beyond
the resources of many small, local citizen-activist groups
to comply with the complex legal requirements that govern
the establishment and operations of PACs.
But these bills do not stop there. They
also contain an array of sweeping new restrictions on
communications by PACs, including independent expenditures,
even though the Supreme Court says that independent
expenditures cannot be restricted under the First Amendment.
For example, the McCain-Feingold bill would stifle
independent expenditures by PACs through various
advance-notice mechanisms to encourage preemptive blocking
of independent ads by powerful politicians; confer special
benefits on candidates who are criticized in independent
political communications; punish "innocent bystander"
candidates who arbitrarily are deemed to "benefit" by
somebody's independent ads; and authorize the FEC to obtain
injunctions to accomplish prior restraint of political
communications that it believes would violate the bill's
requirements, among other restrictions.23
Third Parties?
In speaking of "campaign reform," some politicians make
it clear that they believe they have a right to address the
public without having to contend with conflicting "messages"
from other parties. For example, earlier this year
Representative Farr, the author of one of the main
speech-regulation bills, wrote, "It is unfair to voters and
candidates to allow third parties to liberally participate
in the political process then claim immunities from the
rules of engagement."24 Likewise, Rep. Dick Gephardt (D-Mo.)
has spoken of the importance of restricting election-related
activities by "third parties."25
A "campaign reform" bill (H.R. 1366),
introduced in April by Rep. Scotty Baesler (D-Ky.), would
make it illegal to spend more than $25,000 on independent
express-advocacy communications in any federal election. The
bill declares that such limits are justified because "the
candidate risks losing control over the tone, clarity, and
content of his or her own campaign."26
What a remarkable notion it is -- so
wholly alien to our constitutional democracy -- that
politicians can place legal gags on the speech of private
citizens because they wish to control, by force of law, the
"tone, clarity, and content" of the public debate that
precedes an election. Elections are not the exclusive
property of those who run for office -- rather, they are the
democratic mechanism by which all citizens may seek to
influence the makeup and policies of their government. The
right to seek to persuade fellow citizens of the importance
of certain issues in an election, and to comment on the
merits or demerits of those who seek public office, is as
fundamental to democracy as the right to vote itself.
Some politicians apparently regard
issue-advocacy organizations as intruders into their
sacrosanct relationships with their constituents, whom they
would prefer to address without being distracted by critical
messages from such interlopers. But citizens who are active
on a public policy issue are not "third parties" to
democracy. The members of issue-oriented citizen groups care
deeply about certain public policy issues, and they are
exercising their constitutional rights to associate, to
speak, and to seek to persuade their fellow citizens that
their viewpoints represent good public policy. At times,
that includes seeking to persuade them that their elected
representatives are voting for bad public policies.
Gephardt has been candid, at least at
times, in admitting that these approaches to "campaign
reform" would diminish traditional free-speech rights. He
explained his thinking as follows to Time magazine: "What we
have is two important values in direct conflict: freedom of
speech and our desire for healthy campaigns in a healthy
democracy. You can't have both."27
Contrary to Farr's suggestion, citizen
advocacy groups cannot be required to submit to censorship
and rationing of their speech in order to retain the
privilege of being "allowed" to "liberally participate" in
the political process. American citizens are "allowed" to
"liberally participate" in the political process, not by the
gracious permission of Representative Farr or other elected
officials, but by the Bill of Rights.
The Institutional Media
As certain politicians propose to use the force of law
to protect themselves from many forms of critical
commentary, where is democracy's "watchdog," the free press?
Is it sounding the alarm about this threat to the First
Amendment, this attempted power grab? For the most part,
quite the contrary. To date, the predominant media voices
have been cheerleading for speech-regulation proposals,
which they generally characterize as closing "loopholes"
that allow "special-interest groups" to "evade campaign
finance laws."
For example, last October 24, NBC Nightly
News featured a visit by anchorman Tom Brokaw to Idaho's
First Congressional District, where Republican Rep. Helen
Chenoweth was in a tightly contested race with Democratic
challenger Dan Williams. Although Brokaw was introduced as
being "in Idaho on the money trail," the report barely
mentioned fundraising by the candidates. Instead, the entire
focus of the piece was issue-advocacy television ads by the
AFL-CIO and the League of Conservation Voters -- ads that
portrayed Chenoweth in a negative light.
Brokaw expressed his disapproval of such
noncandidate speech in no uncertain terms, concluding his
report: "Helen Chenoweth and Dan Williams have debated face
to fact their distinctly different views of what's good for
America. But their campaigns are trapped in a cloud of money
saturating the air, polluting the political process -- and
that's a loss for everyone."28
What was actually "saturating the air"
was speech -- communications to the public regarding
specific issues on which the sponsoring organizations
disapproved of Chenoweth's voting record. Apparently, those
groups failed to persuade the majority of voters of their
viewpoints, however, because Chenoweth was reelected.
It seems that in Brokaw's model of an
election campaign, candidates would make their case to the
voters, journalists would comment as they saw fit, and
issue-oriented organizations would shut up and stop
"polluting the political process." Under that model, of
course, the news media's "gatekeeper" powers would be
further enhanced, as they would face less "competition" both
in defining what issues constituted the public policy agenda
at any given time or place and in deciding what information
on those issues reached the public.
Citizens Don't Need Permission
The First Amendment is the nation's paramount "election
law." American citizens, individually or in association, do
not need permission from their legislators to distribute
interpretive voting records or other forms of commentary --
including commentary that legislators may consider
"attacks."
Once the speech-restriction provisions of
these bills are more widely understood and debated, it is
our hope and belief that the American people will agree with
the Supreme Court's reasoning in Buckley:
In the free society ordained by our
Constitution it is not the government but the people --
individually as citizens and candidates and collectively as
associations and political committees -- who must retain
control over the quantity and range of debate on public
issues in a political campaign.29
The respected members of Congress who
have sponsored these proposals, and their colleagues, each
of whom has taken an oath to uphold the Bill of Rights,
should reflect deeply on the implications of replacing our
democracy's time-tested "marketplace of ideas" with a system
of government monitoring and regulation of political
speech.
Notes
1. David Pace, "Cleland Looking to Strengthen Hand of FEC as
Elections' Umpire," Associated Press, May 24, 1997.
2. Detailed analyses of the speech-restrictive provisions of
those bills, including extensive quotations from each bill
and pertinent court decisions, are found in National Right
to Life Committee monographs "A Critique of the
Speech-Restrictive Provisions of the McCain-Feingold
Campaign Reform Bill (S. 25)," February 19, 1997, and "A
Critique of the Speech-Restrictive Provisions of the
Shays-Meehan (H.R. 493) and Farr (H.R. 600) Campaign Reform
Bills," February 19, 1997, available at http:\\www.nrlc.org
at "Campaign Reform and Free Speech."
3. Quoted in Pace.
4. Interview of Senator McCain by David Broder of the
Washington Post on NBC News, Meet the Press, February 23,
1997. See also open letter dated February 24, 1997, from
National Right to Life Committee to Senator McCain regarding
that interview, available at http:\\www.nrlc.org at
"Campaign Reform and Free Speech."
5. Buckley v. Valeo, 424 U.S. 1 (1976) at 39.
6. Ibid. at 19
7. Sam Farr, "Reform Must Return Power to Individual
Contributors," Roll Call, January 9, 1997, p.34.
8. Bill Thomas, "Ads Could Be Regulated in the Last 90 Days
of Election," Roll Call, January 9, 1997, p.32.
9. Bill Bradley, "Congress Won't Act. Will You?" New York
Times, November 11, 1996, p.A15.
10. Buckley at 48-49.
11. Ibid. at 45.
12. Ibid. at 42.
13. Ibid. at 44n. 52.
14. Federal Election Commission v. Christian Action Network,
Inc., no. 95-2600, slip op. (4th Cir. April 7, 1997).
15. Ibid.
16. S. 25, "Bipartisan Campaign Reform Act of 1997," sec.
406.
17. The specific provisions of each bill that attempt to
evade the Supreme Court's definition of express advocacy are
analyzed in detail in the NRLC memoranda on those bills that
are available at http:\\www.nrlc.org at "Campaign Reform and
Free Speech."
18. Susan M. Collins, "Changes Made in Bipartisan Campaign
Finance Reform Proposal at Request of Senator Susan
Collins," Press release, May 22, 1997.
19. See, for example, Norman J. Ornstein. "Forget Sweeping
Reform: Here Are 5 Realistic Changes," Roll Call, January 9,
1997, p.34.
20. S. 25, sec. 406(b); emphasis added.
21. NBC News, Meet the Press, February 23, 1997.
22. S. 25, sec. 406
23. A section-by-section analysis of these provisions is
found in NRLC, "A Critique of the Speech-Restrictive
Provisions of the McCain-Feingold Campaign Reform Bill."
24. Farr, 34; emphasis added.
25. Richard Gephardt, Testimony before the Subcommittee on
the Constitution of the House Committee on the Judiciary,
February 27, 1997.
26. H. R. 1366, "Federal Election Reform Act of 1997," sec.
2(b), finding no. 12.
27. Quoted in Nancy Gibbs, "The Wake-Up Call," Time,
February 3, 1997, p.25.
28. NBC Nightly News, October 24, 1996.
29. Buckley at 57.
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