Dear Senator:
I am writing to communicate the American Civil Liberties Union's opposition to the McCain Amendment No. 3214 concerning disclosure by organizations covered by Section 527 of the Internal Revenue Code.
The American Civil Liberties Union supports certain methods of disclosure for tax exempt issue organizations and for organizations that engage in express advocacy. However, different methods of disclosure are appropriate for express advocacy groups that are not appropriate for groups that engage in issue advocacy. It is appropriate to require a 527 group to provide the Internal Revenue Service (IRS)with the name and address of the organization, the purpose of the organization and other information that is now required of other issue advocacy organizations such as 501(c)(4)s, 501 (c)(3)s and 501(c)(5)s.
However, it is certainly inappropriate and unconstitutional to require issue organizations to report donor lists and membership lists to the IRS, as they would be required to do under the McCain Amendment. This is not about protecting secrecy, this is about preserving the rights of all people to express their opinions on issues without requiring them to report to the government in order to do so. By participating in groups that elevate a particular issue, citizens are exercising their much cherished free speech rights. It would greatly chill free expression if the IRS or the Federal Election Commission (FEC) required donor lists of groups that represent unpopular viewpoints, minority viewpoints or views that are highly critical of government policies.
This Is Not A New Issue
Three years after it passed the Federal Election Campaign Act of 1971, Congress amended the Act to require the disclosure to the Federal Election Commission of any group or individual engaged in:
"any act directed to the public for the purpose of influencing the outcome of an election, or ? [who] publishes or broadcasts to the public any material referring to a candidate (by name, description, or other reference)?setting forth the candidate's position on any public issue, [the candidate's] voting record, or other official acts?or [is] otherwise designed to influence individuals to cast their votes for or against such candidates or to withhold their votes from such candidate."
Such issue advocacy groups would have been required to disclose to the FEC in the same manner as a political committee or PAC. They would have to make available every source of funds that were used in accomplishing such acts. This unconstitutional regulatory scheme is the template for the McCain amendment now before you.
The ACLU challenged this provision of the 1974 amendments as part of the Buckley v Valeo case. When the challenge came before the US Court of Appeals for the DC Circuit, the law was unanimously struck down because it was vague and imposed an undue burden on groups engaged in activity that is, and should be, protected by the First Amendment. The DC Circuit Court ruling stated:
"To be sure, any discussion of important public questions can possibly exert some influence on the outcome of an election ? But unlike contributions and expenditures made solely with a view to influencing the nomination or election of a candidate, issue discussions unwedded to the cause of a particular candidate hardly threaten the purity of the elections. Moreover, and very importantly, such discussions are vital and indispensable to a free society and an informed electorate. Thus the interest group engaging in nonpartisan discussions ascends to a high plane, while the governmental interest in disclosure correspondingly diminishes."
Because of the Court's unanimous and unambiguous ruling, the FEC did not even attempt to appeal this aspect of the courts ruling concerning issue group regulation and disclosure, and that defective section of the Act was allowed to die.
The ACLU urges members of the Senate to vote against Amendment No.3214, the McCain Amendment on 527 group disclosure.
Sincerely,
Laura W. Murphy
Director