Letter to the Senate in Opposition to the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2001
The McCain-Feingold bill, also misnamed as "The Bipartisan Campaign Finance Reform Act of 2001" (S. 27) is a destructive distraction from the serious business of meaningful campaign finance reform. Meaningful campaign finance reform would develop comprehensive programs for providing public resources, benefits and support for all qualified federal political candidates. Since 25 years of experience have shown that limits on political funding simply won't work, constitutionally or practically, it is time to seek a more First Amendment-friendly way to expand political opportunity. Public financing for all qualified candidates is an option that provides the necessary support for candidacies without the imposition of burdensome and unconstitutional limits and restraints. The ACLU has long argued for this, but instead we must use our time today to condemn the ill-conceived iterations of McCain-Feingold that are non-remedies to our national campaign finance woes and are wholly at odds with the essence of the First Amendment.
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Simply put, the McCain-Feingold bill is a recipe for political repression because it egregiously violates longstanding free speech rights in several ways:
- It stifles issue advocacy in violation of the First Amendment.
- It criminalizes any constitutionally-protected contact that groups and individuals may have with candidates (through bans on so-called "coordination").
- It virtually destroys political parties in an unconstitutional fashion.
I. S. 27 Erodes Robust Citizen Speech Prior to Elections
As Virginia Woolf stated, "If we don't believe in freedom of expression for people we despise, we don't believe in it at all." Clearly, the authors and supporters of McCain-Feingold despise any form of issue advocacy that has the audacity to mention candidates for federal office by name. The bill virtually silences issue advocacy (redefined as "electioneering communications") in three ways:
- Section 201 requires accelerated and expanded disclosure of the funding of issue advocacy.
- Section 202 effectively criminalizes issue advocacy as a prohibited contribution if it is "coordinated" in the loosest sense of that term with a federal candidate.
- Section 203 bans issue advocacy completely if it is sponsored by a labor union, a corporation (including such non-profit corporations organized to advance a particular cause like the ACLU or the National Right to Life Committee or Planned Parenthood, unless they are willing to obey the government's stringent new rules) or other similar organized entity. Even an individual who receives financial support -- from prohibited contributors such as corporations, unions or wealthy individuals -- is also barred from engaging in "electioneering communications."
The bill would impose these limitations on communications about issues regardless of whether the communication "expressly advocates" the election or defeat of a particular candidate. Nor is there any requirement of even showing a partisan purpose or intent. Instead, during 60 days before a primary or 30 days before a general election, any such communication is subject to the new controls simply by identifying any person who is a federal candidate, which will usually be an incumbent politician.
These restraints and punishments are triggered by the making of any "broadcast, cable, or satellite communication" which "refers to a clearly identified candidate for Federal office" within 60 days of a general or runoff election or 30 days of a primary election or convention, "made to an audience that includes members of the electorate" for such election or convention. This distinction between broadcast, cable and satellite from those communications through other media bears no relevance to the only recognized justification for campaign finance limitations or prohibitions, namely, the concern with corruption. Suppressing speech in one medium while permitting it in another is not a lesser form of censorship, just a different form.
A. These Issue Advocacy Restrictions Would Have Adverse, Real-Life Consequences
Had these provisions been law during the 2000 elections, for example, they would have effectively silenced messages from issue organizations across the entire political spectrum. The NAACP ads - financed by a sole anonymous donor - vigorously highlighting Governor Bush's failure to endorse hate crimes legislation -- is a classic example of robust and uninhibited public debate about the qualifications and actions of political officials. By the same token, last Spring, when New York Mayor Rudy Giuliani was a candidate for the United States Senate, any broadcast criticism of his record on police brutality as mayor of New York, undertaken by the New York Civil Liberties Union, would have subjected that organization to the risk of severe legal sanctions and punishment under these proposals. The Supreme Court in cases from New York Times Co. v. Sullivan, 376 U.S. 254 (1964) through Buckley v. Valeo, 424 U.S. 1 (1976) to California Democratic Party v. Jones, 120 S.Ct. 2402 (2000) have repeatedly protected full and vigorous debate during an election season. The provisions of the pending bills would silence that debate.
Second, the ban on "electioneering communications" would stifle legislative advocacy on pending bills. The blackout periods coincide with crucial legislative periods, including the months of September and October as well as months during the Spring. During Presidential years, the blackout periods would include the entire Presidential primary season, conceivably right up through the August national nominating conventions. For example had this provision been law in 2000, for most of the year it would have been illegal for the ACLU or the National Right to Life Committee to criticize the "McCain-Feingold" bill as an example of unconstitutional campaign finance legislation or to urge elected officials to oppose that bill! The only time the blackout ban would be lifted would be in August, when many Americans are on vacation!
During the 104th Congress, for example, the ACLU identified at least 10 major, controversial bills that that it worked on that were debated in either chamber of the Congress within 60 days prior to the November 1996 general election. This legislation includes several anti-abortion bills including so-called partial birth abortion legislation, public disclosure of the CIA budget, creation of a federal database of sex offenders, new federal penalties for methamphetamine use, prohibition on discrimination of gays and lesbians in the workplace, same -sex marriage prohibition, anti-immigration legislation and school vouchers, among others. This pattern of legislating close to primary and general elections has only been repeated in subsequent Congresses.
B. Why These Limitations Run Afoul of the First Amendment
Under the reasoning of Buckley v. Valeo and all the cases which have followed suit, the funding of any public speech that falls short of such 'express advocacy' is wholly immune from campaign finance laws. Speech which comments on, criticizes or praises, applauds or condemns the public records and actions of public officials and political candidates -- even though it mentions and discusses candidates, and even though it occurs during an election year or even an election season -- is entirely protected by the First Amendment.
The Court made that crystal clear in Buckley when it fashioned the express advocacy doctrine. That doctrine holds that the FECA can constitutionally regulate only "communications that in express terms advocate the election or defeat of a clearly identified candidate," and include "explicit words of advocacy of election or defeat." 424 U.S. at 44, 45. The Court developed that doctrine because it was greatly concerned that giving a broad scope to FECA, and allowing it to control the funding of all discussion of policy and issues that even mentioned a public official or political candidate, would improperly deter and penalize vital criticism of government because speakers would fear running afoul of the FECA's prohibitions. "The distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical operation. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and government actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest." Id. at 42-43. If any reference to a candidate in the context of advocacy of an issue rendered the speech or the speaker subject to campaign finance controls, the consequences for the First Amendment would be intolerable.
Issue advocacy is freed from government control through a number of other doctrines the courts have recognized as well. First, the constitutional right to engage in unfettered issue advocacy is not limited to individuals or cause organizations. Business corporations can speak publicly and without limit on anything short of express advocacy of a candidate's election. See First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978). (Of course, media corporations can speak publicly and without limitation on any subject, including editorial endorsements of the election or defeat of candidates, i.e. "express advocacy", see Mills v. Alabama, 384 U.S. 214 (1966).)
Contributions to issue advocacy campaigns cannot be limited in any way, either. See Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). Finally, issue advocacy may not even be subject to registration and disclosure. See McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Buckley v. Valeo, 519 F.2d 821, 843-44 (1975) (holding unconstitutional a portion of the FECA which required reporting and disclosure by issue organizations that publicized any voting record or other information "referring to a candidate"). The rationale for these principles is not just that these various groups have a right to speak, but also that the public has a right to know and a need to hear what they have to say. This freedom is essential to fostering an informed electorate capable of governing its own affairs.
Thus, no limits, no forced disclosure, no forms, no filings, no controls should inhibit any individual's or group's ability to support or oppose a tax cut, to argue for more or less regulation of tobacco, to support or oppose abortion, flag-burning, campaign finance reform and to discuss the stands of candidates on those issues.
That freedom must be preserved whether the speaker is a political party, an issue organization, a labor union, a corporation, a foundation, a newspaper or an individual. That is all protected "issue advocacy," and the money that funds it is all, in effect, "soft money." Those who advocate government controls on what they call "sham" or "phony" or "so-called" issue ads, and those who advocate outlawing or severely restricting "soft money" should realize how broad their proposals would sweep and how much First Amendment law they would run afoul.
Finally, it is no answer to these principled objections that this flawed bill would permit certain non-profit organizations to sponsor "electioneering communications" if they in effect created a Political Action Committee to fund those messages. Under governing constitutional case law, groups like the ACLU and others cannot be made to jump through the government's hoops in order to criticize the government's policies and those who make them. In addition, most non-profits would be unwilling to risk their tax status or incur legal expenses by engaging in what the IRS might view as partisan communications. Moreover, the groups would still be barred from using organizational or institutional resources for any such communications. They would have to rely solely on individual supporters, whose names would have to be disclosed, with the concomitant threat to the right of privacy and the right to contribute anonymously to controversial organizations that was upheld in landmark cases such as NAACP v. Alabama, 357 U.S. 449 (1958). This holding guaranteed the opportunities that donors now have to contribute anonymously -- a real concern when a cause is unpopular or divisive.
II. S. 27 Assaults the Free Speech of Issue Advocates
The second systemic defect in this bill is its grossly expanded concept of coordinated activity between politicians and citizens groups. Such "coordination" then taints and disables any later commentary by that citizen group about that politician. By treating all but the most insignificant contacts between candidates and citizens as potential campaign "coordination," the bill would render any subsequent action which impacts that politician as a regulated or prohibited "contribution" or "expenditure" to that candidate's campaign. These provisions violate established principles of freedom of speech and association.
Under existing law, contact coordination between a candidate or campaign and an outside group can be regulated as coordinated activity only where the group takes some public action at the request or suggestion of the candidate or his representatives, i.e., where the candidate is the driving force behind the outside group's action. See Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45 (D. D.C. 1999). Under the bill, however, the definition of coordination is expanded in dramatic ways with severe consequences, thereby prohibiting certain kinds of contact with candidates. A coordinated activity can be found whenever a group or individual provides "anything of value in connection with a Federal candidate's election" where that person or group has interacted with the candidate then or in the past in a number of ways. This includes, for example, instances which the outside person or group has "previously participated in discussions" with the candidate or their representative, "about the candidate's campaign strategy...including a discussion about...message..."
Section 214 of the bill thus imposes a year round prohibition on all communications that are deemed "of value" to a federal candidate. The bill wrongly asserts that issue groups are "coordinating" if they merely discuss elements of the lawmaker's message with the lawmaker or his or her staff anytime during a two year period. For example, if a veteran's group suggests to a candidate how best to talk about the flag amendment in order to win the hearts and minds of voters, the group then can't run ads in Senator McCain's state praising him for protecting the flag.
Once such so-called coordination is established it triggers a total ban on issuing any communication to the public deemed of value to the candidate, and it defines such communication as an illegal corporate contribution! These rules act as a continuing prior restraint, which bars the individual or group from engaging in core First Amendment speech for the lawmaker's entire term of office. Even if such an organization has a connected PAC, it can no longer engage in any independent expenditure affecting the lawmaker because by merely speaking to the candidate or his or her staff it has engaged in illegal "coordination." Here again, the bill attempts to impose another gag rule on issue advocacy organizations.
Translated into the way in which citizen advocacy groups work, this means that a group cannot urge a candidate to make a particular proposal a part of the candidate's platform if the group subsequently plans to engage in independent advocacy on that issue. Likewise, a group like the National Rifle Association could not discuss a gun control vote or position with a Representative or Senator if the NRA will subsequently produce a box score that praises or criticizes that official's stand. Similar to the ban on coordination (Section 202) discussed earlier in this letter, banning "coordination" of "electioneering activity" resulting in a long blackout period when an outside group or individual can be blocked from broadcasting information about a candidate, this ban -- on coordination of "anything of value" -- can operate month in and month out throughout the entire two or six year term of office of the pertinent politician. That is why the AFL-CIO, among other groups, is so concerned about the treacherous sweep of the anti-coordination rules. See "Futile Labor: Why Are The Unions Against McCain-Feingold?" The New Republic, March 12, 2001, pp. 14-16.
Thus, these coordination rules will wreak havoc on the ability of the representatives of unions, corporations, non-profits and even citizen groups to interact in important ways with elected representatives for fear that the taint of coordination will silence the voices of those groups in the future. The First Amendment is designed to encourage and foster such face-to-face discussions of government and politics, see Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), not to drive a wedge between the people and their elected representatives.
III. S.27 Allows the Unconstitutional Virtual Destruction of Political Parties
In addition to its disruptive and unconstitutional effect on issue groups and issue advocacy, S.27 also would have a disruptive if not destructive effect on political parties in America by totally shutting off the sources of funding that support so much of what American political parties do. It would cast a pall over the vital democratic work that political parties perform. These unprecedented restrictions on soft money would make parties less able to support grassroots activity, candidate recruitment and get-out-the-vote efforts.
A. The Bill Represents a Three-pronged Attack on Political Parties
1) Section 101 of the bill completely eliminates all "soft money" funding for all national political parties and all of their constituent committees and component parts. Under current law there are no federal restrictions on raising, spending or routing such soft money by federal state or local parties or their candidates or office holders. Under McCain-Feingold, all of the funding for all of the vital party activities described above would become illegal, unless it came only from individuals, in small dollar amounts. In other words, political parties may only raise and spend highly regulated "hard money" for virtually everything they do.
2) Section 101 of the bill also bars any federal candidate or officeholder from having any contact whatsoever with the funding of any "federal election activity" by any organization unless that activity is funded strictly with hard money. The scope of "federal election activity" is extremely broad and encompasses the following activities if they have any connection to any federal election or candidate: (1) voter registration activity within 4 months of a federal election, (2) voter identification, get-out-the-vote activity or "generic campaign activity," (3) any significant "public communication" by broadcast, print or any other means that refers to a clearly identified federal candidate and "promotes," "supports," "attacks," or "opposes" a candidate for office (regardless of whether the communication contains "express advocacy"). Under this rule, a candidate would attend an NAACP Voters Rights benefit dinner at his or her peril, if funds were being raised for any "federal election activity" such as getting people to the polls on election day. The same might be true for one who attended an ACLU Bill of Rights Day fund raiser, when the ACLU produces a box score on civil liberties voting records during an election season.
3) The bill also reaches and regulates all State and local political parties and bans them from raising or spending soft money for any "Federal election activity" also or any activity which has any bearing on a federal election. It basically federalizes all of the restrictions and limitations of the FECA.
B. Political Party Activity is Protected by the First Amendment
Political funding by political parties is strongly protected by the First Amendment no less than political funding by candidates and committees. The only political funding that can be subject to control is either contributions given directly to candidates and their campaigns (or partisan expenditures explicitly coordinated with campaigns) or communications that constitute express advocacy. These can be subject to source limitations (no corporations or unions or comparable entities) or amount restraints ($1,000, or $5,000 in the case of PACs). All other funding of political activity and communication is beyond presumptive constitutional control. That would include soft money activities by political parties.
Parties are both advocates for their candidates' electoral success and issue organizations that influence the public debate. Get-out-the-vote drives, voter registration drives, issue advocacy, policy discussion, grass-roots development and the like are all activities fundamentally protected by the First Amendment and engaged in by a wide variety of individuals and organizations. An issue ad by the ACLU criticizing an incumbent Mayor on police brutality is an example of soft money activity, in the broadest sense of that term, as is an editorial on the same subject in The New York Times. We need more of all such activity during an election season, not less, from political parties and others as well.
The right of individuals and organizations, corporate, union or otherwise, to support such issue advocacy traces back to the holding in Buckley that only those communications that "expressly advocate" the election or defeat of identified candidates can be subject to control. The Supreme Court in the 1996 Colorado Republican Federal Campaign Committee v. FEC 518 U.S. 604 (1996) case noted the varying uses of soft money by political parties. In the recent case, Nixon v. Shrink Missouri Governmental PAC 528 U.S. 377 (2000), which upheld hard money contribution limits, the Court's opinion was silent on whether soft money could be regulated at all. Although certain individual Justices invited Congress to consider doing so, the case itself had nothing to do with soft money.
To be sure, to the extent soft money funds issue advocacy and political activities by political parties, it becomes something of a hybrid: it supports protected and unregulatable issue speech and activities, but by party organizations often more closely tied to candidates and officeholders. The organizational relationship between political parties and public officials might allow greater regulatory flexibility than would be true with respect to issue advocacy by other organizations. Thus, for example, disclosure of large soft money contributions to political parties, as is currently required by regulation, might be acceptable, even though it would be impermissible if imposed on non-party issue organizations. But the total ban on soft money contributions to political parties raises serious constitutional difficulties.
Just last year, the Supreme Court reminded us once again of the vital role that political parties play in our democratic life, by serving as the primary vehicles for the political views and voices of millions and millions of Americans. "Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting the electoral candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself." California Democratic Party v. Jones, 530 U.S. 567 2402, 2408 (2000). As Justice Anthony M. Kennedy put it in his separate opinion in Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U. S. 604 (1996): "The First Amendment embodies a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Political parties have a unique role in serving this principle; they exist to advance their members' shared political beliefs." Id. at 629.
While electing candidates is a central mission of political parties, they do so much more than that. They engage in issue formulation and advocacy on a daily basis, they mobilize their members through voter registration drives, they organize get-out-the-vote efforts, they engage in generic party communications to the public. Much of these activities are supported by what S. 27 would deem as soft money. The bill before you would dry up these significant sources of funding for those party activities. It would basically starve the parties' ability to engage in the grass roots and issue-advocacy work that makes American political parties so vital to American democracy.
C. S. 27 Diminishes the Ability of Political Parties to Compete Equitably with Others Who Choose to Speak During Campaigns.
Finally, the law unfairly bans parties, but no other organizations, from raising or spending soft money. That would mean that any one else - corporations, foundations, media organizations, labor unions, bar associations, wealthy individuals - could use any resources without limit to attack a party and its programs, yet the party would be defenseless to respond except by using limited hard money dollars. The NRA could use unregulated funds to mount ferocious attacks on the Democratic Party's stand on gun control, and the Party would be effectively silenced and unable to respond. Conversely, NARAL could mercilessly attack the Republican Party's stand on abortion, using corporate and foundation funds galore, and that Party would likewise be stifled from responding in kind. A system which lets one side of a debate speak, while silencing the other, violates both the First Amendment and equality principles embodied in the Constitution.
The Bipartisan Campaign Finance Reform Act of 2001 is not reform at all, but is a fatally flawed assault on First Amendment rights.
Laura W. Murphy
Professor of Law, Brooklyn Law School and Counsel to the ACLU