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.