ACLU Campaign Finance Reform Fact Sheet
Why Should Members of Congress Vote Against H.R. 2356, the Shays-Meehan Bill?
1. Shays/Meehan is patently unconstitutional.
The American Civil Liberties Union believes that key elements of Shays-Meehan violate the First Amendment right to free speech because the legislation contains provisions that would:
- Violate the constitutionally protected right of the people to express their opinions about issues through broadcast advertising if they mention the name of a candidate.
- Restrict soft money contributions and uses of soft money for no constitutionally justifiable reason.
- Chill free expression by redefining it as "coordination" through burdensome reporting requirements and greatly expanded FEC investigative and enforcement authority.
H.R. 2356 would burden and abridge the very speech that the First Amendment was designed to protect: political speech.
2.Shays-Meehan would have a chilling affect on issue advocacy speech that is essential in a democracy. H.R. 2356 contains the harshest and most unconstitutional controls on issue advocacy groups. The bill contains:
- A virtual ban on issue advocacy achieved through redefining express advocacy in an unconstitutionally vague and over-broad manner. The Supreme Court has held that only express advocacy, narrowly defined, can be subject to campaign finance controls. The key to the existing definition of express advocacy is the inclusion of an explicit directive to vote for or vote against a candidate. Minus the explicit directive or so-called "bright-line" test, the Federal Election Commission (FEC) will decide what constitutes express advocacy. Few non-profit issue groups will want to risk their tax status or incur legal expenses to engage in speech that could be interpreted by the FEC to have an influence on the outcome of an election.
- A black-out on broadcast, cable and satellite issue advertising before primary and general elections. The bill's statutory limitations on issue advocacy would force groups that now engage in issue advocacy - including non-profit corporations known as 501(c)(4)s -- to create new institutional entities in order to "legally" speak within 30 days before a congressional primary or runoff and 60 days before a 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 almost all TV or radio ads, since few persons do not possess TVs and radios. If a group wanted to take out a broadcast, cable or satellite ad during this period they would have to create a PAC where donors would have to be disclosed to the FEC in a way never before sustained by the courts. The opportunities that donors now have to contribute anonymously (a real concern when a cause is unpopular or divisive -- see NAACP v. Alabama) would be eliminated.
- Being forced to establish a PAC as a condition of commenting on campaign issues could entail a significant and costly burden for many non-profit organizations. 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 comment on candidate records. Moreover, forcing an organization to take a partisan position is antithetical to the mission of groups like the ACLU that are fiercely non-partisan. It is very likely that some groups will remain silent rather than risk violating this new requirement or absorbing the cost of compliance. The only individuals and groups that will be able to characterize a candidate's record on radio and TV during this 60 day period will be the candidates, wealthy individuals, PACs and the media. Further, members of Congress need only wait until days before a primary or general election (as they often do now) to vote for legislation or engage in controversial behavior so that their actions are beyond the reach of public comment and, therefore, effectively immune from citizen criticism.
3. Shays-Meehan redefines "coordination with a candidate" so that heretofore legal and constitutionally protected activities of issue advocacy groups would become illegal.
If the ACLU decided to place an ad lauding - by name - Representatives or Senators for their effective advocacy of constitutional campaign finance reform, that ad would be counted as express advocacy on behalf of the named Congresspersons and, therefore, would be prohibited if the ACLU had prior discussions with that member about those issues. An expanded definition of coordination is disruptive of proper issue group-candidate discussion.
4. Shays-Meehan would impermissibly limit soft money.
Unprecedented restrictions on soft money would make national parties less able to support grassroots activity, candidate recruitment and get-out-the-vote efforts. Restrictions on corporate and union contributions to parties not only trample the First Amendment rights of parties and their supporters in a manner well beyond any compelling governmental interest but they also dry up funds that expand political participation. Further, Shays-Meehan would ban all contributions from parties to non-profit organizations. Political parties frequently give money to non-profit groups to facilitate voter registration and issue-based voter mobilization efforts. These restrictions threaten the very survival of non-profit organizations that exist for these purposes, and will likely further suppress voter turnout by student and minority groups. Political parties are the mainstay of our democracy and they require funds for their electoral and issue advocacy activity. Any concern with large contributions to political parties may be addressed through the less drastic alternative of disclosure.
5. Shays-Meehan does not do anything to "Big Money" in politics except push money into other forms of speech that are beyond the reach of the campaign finance laws.
The Shays-Meehan bill contains misguided and unconstitutional restrictions on issue group speech and, as a consequence, further empowers the media to influence the outcome of elections. None of the proposals seek to regulate the ability of the media -- print, electronic, broadcast or cable -- to exercise its enormous power to direct news coverage and editorialize in favor or against candidates. This would be clearly unconstitutional. However, if the sponsors of Shays-Meehan have their way, the only entities that would be free to comment in any significant way on candidates' records would be the media, wealthy individuals, PACs and the candidates themselves. Corporations and unions need only to purchase media outlets if they want to have influence over candidates - their wealth and influence will not be abated by these so-called "reforms." Why, then, does Shays-Meehan attack, burden and seek to effectively eliminate only citizen group advocacy?
6. Shays-Meehan makes it harder for ethnic and racial minority, women and non-mainstream voices to be heard prior to an election.
What would happen, for example, if a candidate runs racist, sexist or homophobic ads during the last days of an election and interest groups like the NAACP, NOW or the National Gay and Lesbian Task Force wanted to criticize that candidate by name? Unless they undertook the complicated process of forming a PAC, they would risk violating the issue ad restriction in HR 2356 (the Shays-Meehan bill). Any broadcast ads decrying the candidate's behavior that uses the name or likeness of a candidate 30 days before a primary or 60 days prior to a general election -- even ads that do not endorse or oppose the candidate -- would have to be funded through new disclosed dollars only, not existing non-profit funds. Further, the Shays-Meehan restrictions on soft money would dry up dollars that parties need to conduct voter registration and education, issue and platform development and the like.
7. It creates a "Big Brother" governmental regime for political speech.
This bill would permit the creation of a huge Federal Elections Commission apparatus that would be in the full-time business of determining which communications are considered unlawful "electioneering" by citizens and non-profit groups. None of the major proposals have funds to train or defend citizens or interest groups under the proposed new regulatory regime. Yet the Shays-Meehan legislation contains harsh penalties for failure to comply with the new laws.
8. How does the Shays-Meehan bill compare to the Ney/Wynn bill, H. R. 2360?
The Ney/Wynn bill is far less constitutionally flawed than Shays/Meehan in that it regulates issue advocacy and soft money less restrictively. But Ney/Wynn is still problematic legislation in that it imposes unwarranted regulation of issue advocacy through registration, reporting and disclosure. It creates a kind of "Free Speech Registry" for any organized criticism of incumbent politicians. A group would still have to register with the FEC if it sends written, Internet and broadcast communications. These very same kinds of regulations have been struck down by the federal courts (See United States v. National Committee for Impeachment, 469 F.2d 1135 (2d Cir, N.Y.1972) and American Civil Liberties Union v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973)) The Ney/Wynn bill would adversely affect issue group publications such as an ACLU Civil Liberties Voting Index (unless it was communicated only internally to members). Such a communication would be subject to onerous and burdensome regulations. Although both bills embody the flawed limit-driven approach to political speech, the Shays/Meehan bill is far more constitutionally onerous.