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Analysis of Snowe-Jeffords Campaign Reform

Feb 20, 1998 | Free Speech Issues

February 20, 1998<

Douglas Johnson, Legislative Director
National Right to Life Committee
Suite 500
419 Seventh Street, NW
Washington, DC 2004-2293

RE: Snowe-Jeffords “campaign reform” proposal

Dear Mr. Johnson:

You have asked me, as General Counsel for the National Right to Life Committee (“NRLC”), to evaluate the Snowe-Jeffords “Campaign Reform” proposal, based on the “Summary of Snowe-Jeffords Campaign Reform Amendment: February 10, 1998,” released by Senator Snowe’s office, and on the draft amendment provided by Senator Snowe’s office to some other Senate offices in recent days [Senate Legislative Counsel No.O:FRAFRA98.043].

There are major differences between the Snowe-Jeffords proposal as described in the “Summary,” and the actual amendment that is being circulated to Senators. Some of these will be explored below. It is important to note at the outset, however, that (1) the Snowe-Jeffords amendment would place severe and unconstitutional restrictions on citizens’ groups’ broadcast communications that mention politicians’ names during designated “pre-election” calendar zones, but also (2) would place additional and in some respects even more onerous restrictions on both print and broadcast communications, at any time of the year, by re-defining key legal terms such as “expenditure” and “contribution.” These points are discussed further below.

Based on my evaluation, I recommend that NRLC strongly oppose Snowe-Jeffords, because the proposal would have draconian effects (at least during the extended and expensive process of achieving judicial invalidation on First Amendment grounds) on the educational, lobbying and issue advocacy activities of NRLC and its affiliates.

FUNDAMENTAL PRINCIPLES

The constitutional framework for Congressional regulation of elections was established inBuckley v. Valeo, 424 U.S. 1 (1976). This seminal case discussed certain fundamental principles of the First Amendment, long recognized in constitutional jurisprudence, which must be observed for any act of Congress to be upheld.

The First Amendment to the Constitution of the United States provides that

Congress shall make no law . . . abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.

The fundamental purpose of the First Amendment was to protect “indispensable democratic freedoms,” Thomas v. Collins, 323 U.S. 516, 529-30 (1945), that make our representative form of government possible. Thus, the freedoms of speech, press, assembly, and petitioning our government, found in the First Amendment, protect the rights of citizens to participate in our representative democracy and to compete in “the marketplace of ideas.”McIntyre v. Ohio Election Commission, 115 S. Ct. 1511, 1516 (1995).

Thus, it is undeniable that political expression is “at the core of our electoral process and of the First Amendment freedoms.” Buckley, 424 U.S. at 44 (citing Williams v. Rhodes, 393 U.S. 23 (1968)).

WHAT IS “ISSUE ADVOCACY”?

There are two constitutionally recognized forms of free political expression — issue advocacy and express advocacyIssue advocacy is the “free discussion of the problems of society,” Pennekamp v. Florida, 328 U.S. 331, 346 (1946), including discussion of issues of public concern, grassroots lobbying concerning pending or proposed legislation, comment on the actions and positions of public officials while in office, and discussion of the positions of candidates for office. Issue advocacy may not be regulated and enjoys the highest form of First Amendment protection.

The reality, as the Court noted in Buckley, 424 U.S. at 42, is that

the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are often intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.

Because of this reality, the Court has not authorized the regulation of issue advocacy, but, quite the opposite, has established the bright-line “express advocacy” test to protect issue advocacy from regulation. FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 249 (1986)(“MCFL“)(“Buckley adopted the >express advocacy’ requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons.”).

The “express advocacy” test, as adopted by the United States Supreme Court in Buckleyand reaffirmed in MCFL and Colorado Republican Campaign Committee v. FEC, 116 S.Ct. 2309 (1996), provides that a communication shall not be considered the type of political speech that is potentially subject to some government regulation unless it includes “explicit words of advocacy of election or defeat of a candidate.” Buckley, 424 U.S. at 43. The focus of the “express advocacy” test is on the words used by the speaker. Thus, a “finding of ‘express advocacy’ depend[s] upon the use of language such as ‘vote for,’ ‘elect,’ ‘support,’ . . .” MCFL, 479 U.S. at 249.

The requirement that a communication contains “express advocacy” only if it uses “express words of advocacy of election or defeat,” Buckley, 424 U.S. at 44 n.52, ensures that a speaker will not feel that she must “hedge and trim” when she comments on issues of public importance or discusses the actions of governmental officials or would-be officials, for fear that she may engage in a forbidden form of speech. In this way, the “express advocacy” test protects issue advocacy, even if the issue advocacy may influence an election.

Thus, the “express advocacy” test depends on the actual words spoken, not on the speaker’s intent when speaking or the effect of his words on the listener. If the communication contains “explicit words of advocacy,” as carefully defined by the Court, the communication falls within the exceptional class of political speech that may be subjected to various restrictions. If a communication contains “express advocacy,” the Supreme Court has upheld the requirements that a communication containing it must be reported to the FEC, Buckley, 424 U.S. at 74-81, and that business corporations may be prohibited from engaging in it. MCFL, 479 U.S. at 249.

But, the Supreme Court has emphasized, as long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.” Buckley, 424 U.S. at 45 (emphasis added).

SNOWE-JEFFORDS WOULD RESTRICT ISSUE ADVOCACY

Snowe-Jeffords would obliterate the constitutionally dictated bright line between express advocacy and issue advocacy and would impose extensive restrictions and outright prohibitions on many forms of issue advocacy. Some of these provisions would apply “only” during designated “pre-election” calendar zones, but others would apply year round.

Sec. 200 of the Snowe-Jeffords amendment applies to any radio or television advertisement within 60 days of a general election and 30 days of a primary election or nominating convention, which refers to a candidate for public office, regardless of content, if more than $10,000 is spent in aggregate (nationwide) for all such communications by a nonprofit organization, such as NRLC or an NRLC affiliate, which are incorporated and tax-exempt under Section 501(c)(4) of the Internal Revenue Code.

Thus, Snowe-Jeffords would apply to grass-roots lobbying communications urging action on approaching votes in Congress, commentary on votes or positions of incumbent federal officials, and any discussion of the positions on issues of candidates for public office, for at least 90 days during an election year for each “candidate.”

Such communications to the public are defined in the proposal as “electioneering” communications, even though, as discussed below, they actually fall squarely within the broad class of speech regarding politicians and issues that the U.S. Supreme Court has referred to by the legal term of art issue advocacy — a class of speech to which the Court has afforded the highest degree of First Amendment protection.

Among other restrictions, Snowe-Jeffords proposes to prohibit any nonprofit organization from paying for such so-called “electioneering” communications from their general funds. The proposal would require that such communications be “paid for from sources traditionally relied on for campaign purposes,” which means that sponsoring nonprofit organizations could not draw on general funds that contain any funds raised from that organization’s “business income,” or donated by for-profit corporations or unions.

NRLC’s general fund is made up in large part of funds donated by private individuals, which, under Section 501(c)(4) of the Internal Revenue Code, are not tax deductible to the donors, but the general fund may also contain funds donated by business corporations and some funds raised through “business” activity, e.g., the sale of certain pro-life educational material and the like. The presence of such monies would, under Snowe-Jeffords, “taint” the entire NRLC general fund and thereby prohibit its use for politician-mentioning (“electioneering”) communications during the prohibited calendar zones. Therefore, Snowe-Jeffords would prohibit NRLC from sponsoring so-called “electioneering” communications itself and require it to set up a separate segregated entity that would be allowed to raise funds from the “approved” sources, similar to NRLC setting up a political action committee (PAC), which makes contributions to candidates and express advocacy expenditures.

However, the Supreme Court has never allowed the government to subject issue advocacy communications (including those that mention the name of a Member of Congress or other candidates for federal office) to the types of restrictions that are applied to express advocacyas conducted by PACs. Indeed, this is what the “express advocacy” test is all about. Again, the Buckley Court expressly held that, Aas long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.” Buckley, 424 U.S. at 45. Obviously, if one can “promote the candidate and his views,” he or she can certainly mention the candidate’s name.

Moreover, Snowe-Jeffords expressly seeks to require “disclosure of the funding sources” for such issue advocacy communications, which was expressly struck down in Buckley, 424 U.S. at 74-80, and seeks to prohibit “labor union or corporation treasury funds from being used” for such communications at all, which was expressly struck down in MCFL. 479 U.S. at 251.

SNOWE-JEFFORDS REQUIRES ADVANCE NOTICE OF SPEECH

Indeed, Snowe-Jeffords would require “disclosure” of so-called “electioneering” communications, in many cases, far in advance of the actual broadcasting of such communications to the public. Snowe-Jeffords requires reporting not at the time the broadcast occurs, but at the time that there has been any disbursement for a communication or even any contract for a disbursement for a communication.

Thus, at the time that an organization even contracts with a scriptwriter, actor, reader, or other person for the production of a communication, or makes any payment for such services, or pays an advance deposit for air time, that activity must be reported to the government, including the name of the politician(s) to be mentioned in the ad. Often, such contracts would occur months in advance of the actual broadcast — and long before the 30-day/60-day pre-election time zones. All of this is clearly unconstitutional. (Among other effects, it would allow powerful politicians to pressure broadcasters to refuse to broadcast communications that discuss their positions or voting records.)

Indeed, these “advance notice” requirements are far more restrictive than those applied in current law for express advocacy independent expenditures, which must (only in the last 20 days before an election) be reported with 24 hours after the communication occurs.

In addition, section 200B of Snowe-Jeffords completely bans business corporations, labor unions, and nonprofit corporations holding tax-exempt status under section 501(c)(3) of the Internal Revenue Code from engaging at all in so-called “electioneering” communications — that is, broadcast communications that mention federal officeholders or officeseekers, during the designated periods. IRS rules specifically allow such 501(c)(3) corporations to engage in grassroots lobbying, up to a designated percentage of their budgets, but Snowe-Jeffords would deny them the right to use broadcast media for such purposes during the 30-day/60-day periods designated by the bill. Nonprofit corporations holding 501(c)(4) status, such as NRLC, would be prohibited from engaging in such communications except through the quasi-PACs described above.

Section 200B says that an “electioneering communication” is to be regarded as a “contribution to a candidate” if it is “coordinated” with a candidate. Snowe-Jeffords does not define “coordination,” but appears to leave intact the pertinent provision (Sec. 205) of the underlying McCain-Feingold bill of Sept. 29, 1997, which radically re-defines “coordination” to include ten different classes of relationship — direct, indirect, imputed, or presumed — between organizations and “candidates,” as discussed in previous communications.

However, even if Snowe-Jeffords were to be revised to incorporate the current legal definition of “coordination,” which, under the Supreme Court’s decision in Colorado Republicans, applies only to actual prior communication about a specific expenditure for a specific project, it would be unconstitutional to apply such a restriction to communications that do not include express advocacy.

SNOWE-JEFFORDS CONTAINS YEAR-ROUND RESTRICTIONS ON BOTH PRINT AND OTHER COMMUNICATIONS

The February 10 “Summary of Snowe-Jeffords” says, “This amendment bans only radio and TV advertisements paid for by labor unions and corporations. . . . Non-broadcast communications, including voter guides, are completely unaffected by the provision.” However, the actual amendment contains an entire section, Sec. 301, that applies to all communications, both broadcast and print.

Among other things, this section seeks to broaden the Supreme Court’s definition of “express advocacy,” which would apply year-round to both print and broadcast communications. This section even contains the bogus “exception” for voting records and voter guides that is found in the September 29, 1997, version of the McCain-Feingold bill. NRLC has dissected the hollowness of this phony “exception” elsewhere and there is no need to reiterate those points here — but inclusion of the bogus “exception” in the Snowe-Jeffords amendment does underscore that the authors are seeking to regulate print issue advocacy communications through their expanded definition of “express advocacy” (otherwise, why do they spell out an “exception” that applies only to an exceedingly narrow class of print issue advocacy communications?).

Finally, as though the authors are afraid that they might have missed some class of commentary on the votes or positions of politicians in all of the other provisions, Sec. 301(b) of Snowe-Jeffords defines as a campaign expenditure — and therefore, illegal for any corporation, nonprofit or otherwise, at any time of the year — any communication that “refers to” a clearly identified candidate, is “coordinated” (see discussion on page 9 above), and “is for the purpose of influencing a Federal election (regardless of whether the communication is express advocacy).” (Emphasis added). This catch-all, nebulous “for the purpose” provision would provide grounds for a politician to file a complaint with the FEC about virtually any communication that mentions his name that he does not like — at any time of the year.

In sum, the Snowe-Jeffords amendment would place severe restrictions on the grassroots lobbying and educational activities of NRLC and its affiliates — restrictions which would blatantly violate the First Amendment protections for such activities that have been expounded in numerous rulings of the U.S. Supreme Court and federal courts of appeals.

Sincerely,

BOPP, COLESON, & BOSTROM

James Bopp, Jr.
General Counsel for the National Right to Life Committee, Inc.

Categories: Free Speech Issues