Communications Department

Letter to Senate on Snowe-Jeffords Amendment

Feb 25, 1998 | Free Speech Issues

February 25, 1998

RE: Final Snowe-Jeffords amendment violates the First Amendment
and does not remove the worst elements of McCain-Feingold bill

Dear Senator:

On February 20, NRLC provided your office with a detailed legal analysis, prepared by NRLC General Counsel James Bopp, Jr., of a draft of the Snowe-Jeffords amendment that Senator Snowe’s office had circulated to certain other Senate offices. On February 24, Senator Snowe offered the amendment in a form differing slightly from the earlier-circulated version. One change was noteworthy — provisions (in Subtitle B) to unconstitutionally re-define “express advocacy” and “expenditure” for both print and broadcast communications were dropped.

Nevertheless, as revised and as pending, the Snowe-Jeffords amendment would flagrantly violate the First Amendment rights of NRLC and NRLC’s affiliates to communicate with the public regarding the positions of specific lawmakers and officeseekers on right-to-life issues. Therefore, NRLC strongly opposes the Snowe-Jeffords amendment, and urges you to vote to table the amendment. NRLC will include the roll call on the Snowe-Jeffords amendment in its “scorecard” of key votes for the 105th Congress.

Because of certain evasions and smokescreens employed by some supporters of the amendment during the February 24 floor debate, we must reiterate some of our main objections to the Snowe-Jeffords amendment (which are explained further in the Feb. 20 memo by Mr. Bopp):

* During so-called “pre-election” periods (which include 30-day pre-primary periods that begin as early as February of each even-numbered year, besides a 60-day period before a general election), corporations that hold 501(c)(3) status with the IRS would be entirely prohibited from broadcasting communications that encourage listeners/viewers to contact named members of Congress regarding upcoming votes in Congress. Yet, such grassroots lobbying is permitted by IRS rules, and is constitutionally protected. (See pages 9-10 of the Feb. 20 analysis by Mr. Bopp.)

* During the same periods, corporations such as NRLC that hold 501(c)(4) IRS status would be prohibited from broadcasting communications that encourage listeners/viewers to contact named members of Congress regarding upcoming votes in Congress, except under various restrictions — e.g., elimination of several permissible funding sources, mandatory reporting of donors’ names to the government, etc. — that the Supreme Court has ruled may be applied only toexpress advocacy (i.e., communications that use explicit words to expressly urge a vote for or against a named candidate). Congress lacks authority, under the First Amendment, to restrict communications merely on grounds that they mention the names of officeholders or officeseekers. Indeed, commentary on the positions of specific, named politicians on issues — which is what the legal term of art issue advocacy actually refers to — enjoys the highest degree of immunity from government regulation, as explained in Mr. Bopp’s memo.

* Any group that submitted to the Snowe-Jeffords restrictions, in order to qualify for the “privilege” of mentioning a politician’s name on radio or TV, would also be required to report to the government the names of the politicians that it wishes to utter as soon as any contract is signed for any part of the production of the communication — which would be, in many cases, weeks or months in advanceof the actual broadcasting of an ad. Such an advance notice requirement might be a boon to some powerful officeholders — an incumbent governor seeking a Senate seat, for example — who could then bring pressure to bear on broadcasters to refuse to sell airtime for the ads. But under the First Amendment, Congress lacks authority to demand that NRLC declare in advance when and where we intend to utter a politician’s name to the public, just as it lacks authority to impose such a burden on newspaper editorial boards.

* The Snowe-Jeffords amendment replaces only Section 201 of the underlying McCain-Feingold bill. Therefore, the Snowe-Jeffords amendment does notchange the worst provisions of the McCain-Feingold bill, including the provision in Section 205 that radically re-defines impermissible “coordination” to include ten different classes of relationship — direct, indirect, imputed, or assumed — between an organization and a “candidate” (including all incumbent Members of Congress), so as to cover constitutionally protected activities that are routinely engaged in by organizations that lobby on public policy matters. Nor does Snowe-Jeffords change the provision of McCain-Feingold (also in Section 205) that flatly prohibits, as an illegal corporate “contribution,” anycommunication by such a so-called “coordinated” organization, at any time of the year, that is deemed to be “of value” to a “candidate,” even if no candidate is mentioned in the communication. As explained in NRLC’s detailed analysis of the McCain-Feingold bill, these provisions would result in a maze of legal tripwires, placing both candidates and lobbying organizations in constant legal jeopardy.

* Rather than removing the unconstitutional restrictions contained in Section 205 of the McCain-Feingold bill, Snowe-Jeffords (in Sec. 200A) reinforces them, by applying McCain-Feingold’s radically expansive definition of impermissible “coordination” to cover any so-called “electioneering communication” — that is, any broadcast communication that merely mentions the name of a member of Congress or other “candidate” during specified periods.

In short, the final version of the Snowe-Jeffords amendment is not truly acompromise but rather an attempt to disguise the McCain-Feingold bill’s unconstitutional restrictions on free speech about politicians. Therefore, NRLC urges you to vote against the Snowe-Jeffords amendment, and to oppose cloture on the McCain-Feingold bill.


Douglas Johnson
Legislative Director

Categories: Free Speech Issues