Briefing Paper No. 31

Campaign Reform: Let’s Not Give Politicians the Power to Decide What We Can Say about Them

By Douglas Johnson and Mike Beard
July 4, 1997

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 officeholders 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 Cleland’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.

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 and 5½ 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 Shays-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.

Cleland 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—provided 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.

Read the Full Briefing Paper

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.