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The Hutchinson “Freshman” Bill (HR 2183) Violates the First Amendment Rights of Citizen Groups, Political Parties, and Members of Congress

May 1, 1998 | Free Speech Issues

May 1, 1998
When the House of Representatives soon revisits the issue of “campaign finance reform,” the “base bill” will be HR 2183, sponsored by Rep. Asa Hutchinson (R-Ark.), sometimes referred to as the “freshman” bill. NRLC strongly opposes the Hutchinson bill. This memo summarizes the most objectionable elements of the bill.

Unconstitutional Regulation of Citizen Groups’ Communications to the Public

HR 2183 attempts to assert congressional authority to monitor and regulate citizen groups’ broadcast communications to the public, in any month of any year, merely on grounds that a communication mentions a member of Congress or other federal politician. The bill would require that sponsoring organizations report such communications to Congress. This proposed requirement violates both the general constitutional immunity of issue advocacy from governmental regulation, enforced in numerous court decisions, and the specific holdings of the Supreme Court in the 1995 case of McIntyre v. Ohio Elections Commission,a 7-2 affirmation of the First Amendment right to engage in anonymous issue advocacy.

The Hutchinson requirement would apply whenever a group spends in a year (1) $25,000 on communications “relating to” (mentioning) a single politician, or (2) $100,000 on all “politician-mentioning” communications nationally. Once a group has spent an aggregate total of $100,000 on broadcast communications that name politicians — even if they pertain solely to upcoming votes on legislation — then EVERY such expenditure must be reported to Congress, even a $100 radio ad.

Unconstitutional Ban on “Soft Money”

The bill completely prohibits organs of the national political parties from receiving so-called “soft money” — a term that really refers to all funds that are not rationed and controlled by the Federal Election Campaign Act (FECA). This is unconstitutional. Under rulings of the U.S. Supreme Court, the First Amendment protects the right of political parties to sponsor communications that discuss issues, or the positions of officeholders or officeseekers on those issues (called “issue advocacy”), without being subjected to the rationing laws that FECA applies to communications that contain explicit endorsements of candidates (called “express advocacy”). The bill would effectively nullify political parties’ First Amendment right to engage in issue advocacy, by requiring that all party ads be conducted under the restrictions that currently apply to express advocacy communications (since the parties would be prohibited from raising any money that did not conform to those restrictions).

If “reform” advocates successfully obliterate the distinction between issue advocacy and express advocacy with respect to political parties, they will then redouble their attacks on issue advocacy by citizen groups such as NRLC. Those who support free speech about political figures should oppose all restrictions on issue advocacy, whether engaged in by political parties, citizen groups, or others.

Unconstitutional Ban on Endorsements by Members of Congress

The bill would make it unlawful for any Member of Congress to endorse the fundraising or membership-recruitment efforts of a citizen group, such as NRLC, which at any time of any year engages in “any communication which refers to a clearly identified candidate for election for Federal office,” which includes all incumbents except those who have announced their retirement.

In other words, an organization becomes “tainted” if it issues any communication, at any time of the year, that so much as mentions the name of a member of Congress. For example, if an organization sponsors a single newspaper ad or sends out a single newsletter saying that a lawmaker will be voting or has already voted on a certain bill, this restriction would be triggered. Such a mettlesome organization would no longer be eligible to receive the endorsement of any member of Congress. Communications that mention the names of lawmakers are a pervasive ingredient in NRLC’s overall pro-life advocacy, throughout the year, so the bill effectively prohibits lawmakers from endorsing NRLC’s fundraising efforts, as Congressman Henry Hyde and others have done in the past.

The concept underlying this provision — that there is something “corrupting” about Members of Congress endorsing the work of issue-oriented organizations with which they agree — is very offensive. This provision in effect applies an unconstitutional penalty to NRLC for exercising its First Amendment right to engage in commentary on a federal politician, and also violates NRLC’s constitutional right of association. Moreover, this proposed endorsement ban is an unconstitutional infringement on the rights of association and freedom of speech of each and every Member of Congress.

Categories: Free Speech Issues