Strangling Free Political Speech In Order to Save It?

This article appeared in Bridge News.
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When Congress put campaign‐​finance reform on the shelf until March, newspaper editorial writers had a fit. From The Washington Post to the San Francisco Chronicle, they bemoaned Congress’ failure to enact the McCain‐​Feingold bill, the most ambitious of the reform measures.

Writers who embrace the legislation, sponsored by Republican John McCain of Arizona and Democrat Russell Feingold of Wisconsin, are threatening the very First Amendment rights they claim to defend. The latest incarnation of the senators’ bill is quite simply an appalling assault on fundamental rights of free expression.

Very few in the press or in Congress have focused clearly on the way the bill virtually bans think tanks, advocacy organizations and corporations from debating political issues. In fact, it reduces the First Amendment to scrap. Its legal jargon is thick, and its complexities are difficult to unsnarl. But its provisions are positively diabolical in their implications for public discourse.

One provision defines whether political spending (including “anything of value provided … for the purpose of influencing a federal election”) has been “coordinated with a candidate.” That’s a very big deal. “Coordinated” spending is absolutely forbidden for nonprofit, issue‐​oriented groups as well as for unions and corporations.

So if your motive is to exclude certain organizations from doing anything that might have an impact on an election, what do you do? Why, you toss everything but the kitchen sink into the “coordinated” category. And that’s just what the McCain‐​Feingold legislation does. Under the newest version of the bill, “coordinated” expenditures are cleverly defined.

First, spending “pursuant to any general or particular understanding with a candidate” is defined as coordinated. That’s obfuscatory prose, to be sure. But it very probably covers such things as questionnaires and pledges mailed to candidates by advocacy groups if the candidate knows that his or her answers will be publicized. (Isn’t that the whole point?)

Second, “dissemination, distribution or republication … of any … form of campaign material prepared by a candidate” is also defined as coordinated. An advocacy group could easily fall on the wrong side of that definition if it distributes an article written by a candidate and there’s a chance that he might distribute the same article to potential voters.

The McCain‐​Feingold legislation is insidious and destructive. It deserves an ignominious burial.

Third, communications arising out of “formal policy‐​making discussions with the candidate’s campaign” relating to the election are classified as coordinated. That spells the end of any substantive interaction between the staff of an advocacy group and a candidate.

Lastly, spending by a organization that uses “the professional services of any person that has provided … campaign‐​related services … to a candidate” is defined as coordinated. Professional services include such things as “polling, media advice, direct mail, fund‐​raising or campaign research.” In other words, if an advocacy group uses a pollster who also does work for a candidate, it could be violating the law.

Any one of those acts would transform an “independent expenditure,” which individuals and nonprofits can now make without limitation, into a contribution forbidden to all corporations as well as unions and severely capped for individuals and political‐​action committees. And because the newest version of the bill has no minimum threshold, small organizations that cannot afford a political‐​action committee would effectively be denied their First Amendment rights.

The other noxious provision of the latest rendition of McCain‐ Feingold redefines “express advocacy.” The Supreme Court, in its landmark 1976 case Buckley vs. Valeo, characterized “express advocacy” as a communication that urges the election or defeat of a clearly identified candidate by using such terms as “vote for” or “reject.” The McCain‐​Feingold legislation defines it in a way stunning in its sweep.

If the bill passes, you’ll be engaging in “express advocacy” if you simply refer to a candidate “in a paid advertisement … within 60 calendar days preceding the date of an election.” As Sen. McCain put it: “Ads could run which advocate any number of causes … in the last 60 days. However, ads mentioning the candidates could not.”

You would also be conducting “express advocacy” if you convey “unmistakable and unambiguous support for or opposition to” a candidate. This open‐​ended formulation drops the explicit 60‐​day time frame and declares that advocacy of election or defeat need be no more than a clear expression of “support” or “opposition.” The very life of political expression — communication regarding disputed matters of public policy — would at best be discouraged but more likely snuffed out.

Nonprofit educational and advocacy groups should be busy building the scaffold from which to hang legislators who seriously propose such a pernicious attack on their rights of free speech. The press, if it is concerned at all about the First Amendment — all of it — ought to be supplying the rope. What greater hypocrisy is there than journalists who pose as the ultimate champions of the First Amendment while endorsing legislation that would trash it?

The McCain‐​Feingold legislation is insidious and destructive. It deserves an ignominious burial.

Robert A. Levy

Robert A. Levy is a senior fellow in constitutional studies at the Cato Institute.