We, the undersigned organizations and individuals, represent a diverse array of non-profit public policy advocacy groups. We have a shared belief that your upcoming vote on Shays-Meehan today will create an important record of your stand on the First Amendment rights of issue advocacy groups in the United States. We urge you to oppose this legislation because it contains unwarranted and unconstitutional restrictions on our free speech rights.
We have heard a great deal about so-called "sham issue ads" and the need to regulate such advertising. Until now in the United States, under our First Amendment, we have had the right to express our views through issues advertising about national issues and about federal elected officials before, during and after elections. Clearly most of Congress realizes that it would be unconstitutional to silence an individual who wants to take out broadcast advertising during this same period; consequently, Shays-Meehan does not silence wealthy individuals. But Shays-Meehan does silence groups like ours that are collectively supported by millions of small contributors who band together to make their views known.
Proponents of Shays-Meehan argue that their bill does not silence our groups. They are wrong. Sections 201, 203, and 204 of H.R. 2356 (like its Senate counterpart) contain unconstitutional restrictions on broadcast, cable and satellite issue ads. The net effect of these provisions is to ban many of our national groups and their affiliates, and all other 501(c)(4) advocacy corporations (but not PACs) from funding TV or radio ads that even mention the name of a local member of Congress for 30 days before a state's congressional primary or runoff, and for another 60 days before the general election. This restriction applies to any ad that "can be received" by 50,000 or more "persons," including minors, within a district -- which covers nearly any TV or radio ad, since few persons do not possess TVs and radios.
These restrictions would have widespread impact on issue advocacy throughout the even number years in particular. For example, even today (February 13, 2002) if the bill were law, groups such as Common Cause and Campaign for America would be banned from running a TV or radio ad today in California (March 5th primary) or Texas (March 12th primary) saying simply "Call Congressman Jones to urge him to vote for the Shays-Meehan bill." In effect, groups are being cut out of the dialogue on major national issues.
The Supreme Court has repeatedly held that only express advocacy, narrowly defined, can be subject to campaign finance controls. Shays-Meehan redefines express advocacy in a way that covers our legitimate speech, which is not telling voters to vote for or against a particular candidate. If we dare applaud, criticize or even mention a candidate's name during this 30 day/60 day "blackout" period, we would have to create a PAC where donor names would have to be disclosed to the FEC in a way never before upheld by the courts.
We believe that no group that wants to express its views through broadcast ads should be forced to bear the significant and costly burden of establishing a PAC just to comment during this period. Separate accounting procedures, new legal compliance costs and separate administrative processes would be imposed on these groups -- a high price to exercise their First Amendment rights to merely mention a candidate's name or comment on candidate records. Moreover, having a PAC would by definition make the organization a participant in partisan politics. Rather than risk violating this new requirement, absorbing the cost of compliance or being forced to take partisan stands during elections, it is very likely that some groups will remain silent.
It is clear that the intent and net effect of Shays-Meehan is to shut down legitimate, constitutionally protected issue advocacy. Are you voting to do this to groups who represent millions of Americans? We urge you to reject this approach. Please vote against Shays-Meehan.
Laura W. Murphy
ACLU Washington Office
ACLU Campaign Finance Counsel
Professor of Law, Brooklyn Law School
David N. O'Steen
National Right to Life Committee
Gregory S. Casey,
President & CEO
BIPAC (Business Industry Political Action Committee of America.)
R. Bruce Josten,
Executive Vice President
U.S. Chamber of Commerce
Charles H. Cunningham,
Director, Federal Affairs
National Rifle Association Institute for Legislative Action