Shays’ Rebellion: Gutting Issue Advocacy

June 2, 1998 • Commentary

What should we do when Buddhist nuns launder political contributions, foreign money‐​raisers underwrite election campaigns, and presidents sell access to the Lincoln bedroom? Simple. Enact legislation that prohibits issue advocacy — our most cherished form of political expression — then see if we can sneak the legislation by a Supreme Court that has warned us repeatedly to stop toying with the First Amendment.

Incredibly, that’s what could be happening in Congress as Rep. Christopher Shays (R‐​Conn.) embarks on yet another crusade to resuscitate the McCain‐​Feingold campaign finance reform package, on life support since a GOP filibuster in the Senate. Prior to the April 2 recess, Shays and a half dozen fellow Republicans, in open rebellion against their leadership, had joined with 185 Democrats — that’s 191 votes toward the 218 needed — to discharge the Shays‐​Meehan bill, a McCain‐​Feingold clone, and force a floor vote. Now that Congress has returned from the hustings, the discharge petition is back on the agenda.

Never mind that everyone from the National Right to Life Committee to the American Civil Liberties Union says that the bill is manifestly unconstitutional. Two provisions of Shays‐​Meehan effectively gut the First Amendment’s protection of issue advocacy.

Under the Federal Election Campaign Act, political expenditures that are “coordinated with a candidate” are treated the same as direct contributions: they are strictly limited when made by individuals or political action committees; and unions and corporations, including nonprofit, issue‐​oriented corporations, are absolutely banned from making them. So the definition of “coordinated” spending is critical.

Here are just a few of the activities that Shays‐​Meehan considers “coordinated”: (1) Spending “pursuant to any general or particular understanding with a candidate.” (2) “Dissemination … of campaign material prepared by a candidate.” (3) Communications arising out of “formal policy‐​making discussions with the candidate’s campaign.” (4) Spending by an organization that uses the same professional services — “polling, media advice, direct mail, fundraising or campaign research” — as the candidate.

When we proscribe speech because it identifies a candidate — even speech that doesn’t expressly advocate the election or defeat of the candidate — then we reduce the First Amendment to rubble.

Those provisions are lifted verbatim from McCain‐​Feingold, despite warnings from even its most zealous supporters. The Washington Post, for example, editorialized that the bill’s restrictions “put new limits on what advocacy groups could use their funds to say.” Indeed, Shays‐​Meehan wouldn’t allow an advocacy group to mail a questionnaire to a candidate if the candidate knew his answers would be publicized. A think tank couldn’t distribute an article written by a candidate if there was a chance the candidate might distribute the article to potential voters. An advocacy group’s staff probably couldn’t engage in any substantive interaction with a candidate’s staff. And spending by any group that used the same direct mail consultant as the candidate could violate the law.

Engaging in any of those activities transforms an “independent expenditure,” which nonprofits can now make without limitation, into a campaign contribution forbidden to all unions and corporations, including nonprofits. By any rational standard, the proposed bill is an appalling assault on political expression and makes a mockery of the First Amendment.

There’s more. Equally offensive is the sweeping prohibition in Shays‐​Meehan of “issue advocacy.” That’s what the Post railed about when it predicted that the distinction in the bill between “issue” advocacy and “express” advocacy “quickly breaks down and involves those who would have to enforce it in ludicrous arguments that no one can want a regulatory body or court to have to make.”

In Buckley v. Valeo (1976), the Supreme Court pronounced, “As long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.” But according to Shays‐​Meehan, unions and for‐​profit corporations may not pay for any radio or television broadcast that refers to a clearly identified candidate within 60 days of a federal election. Nor may they communicate in a manner that expresses “unmistakable and unambiguous support for or opposition to” a clearly identified candidate. That prohibition applies 365 days a year, not just 60 days before an election.

Shays lauds his handiwork as a “bright‐​line test for issue advocacy [that] would go a long way in improving our campaign system.” Nonsense! When we proscribe speech because it identifies a candidate — even speech that doesn’t expressly advocate the election or defeat of the candidate — then we reduce the First Amendment to rubble. The Shays‐​Meehan bill attempts to mutate “issue advocacy” into a new category of taboo speech. But that attempt will not and must not pass constitutional muster.

The Supreme Court has repeatedly proclaimed that the First Amendment is not a loophole. Almost a quarter of a century ago, the Court said that issue advocates are free to promote candidates and their views. Now Christopher Shays asks us to establish a “narrow” exception: advocacy groups can’t mention the name of the candidate they would promote. Let’s administer last rites to this awful piece of legislation.

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