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Joint letter from NRLC and the NRA to Senator McConnell regarding the “coordination minefield” created by Section 214 of the Shays-Meehan (McCain-Feingold) bill

Mar 19, 2002 | Free Speech Issues

National Right to Life Committee
National Rifle Association

March 19, 2002

Senator Mitch McConnell
Ranking Minority Member
Committee on Rules and Administration
United States Senate
Washington, D.C. 20510

RE: Coordination Minefield in Section 214 of H.R. 2356

Dear Senator McConnell:

Under current law, no relationship of “coordination” exists unless there is an actual prior communication about a specific expenditure for a specific project which results in the expenditure being under the direction or control of a candidate, or which causes the expenditure to be made based upon information provided by the candidate about the candidate’s needs or plans.

However, Section 214 of the Shays-Meehan bill (H.R. 2356), in the form passed by the House on February 14, 2002, would obliterate that clear rule, and replace it with a new standard for “coordination” that would place incumbent lawmakers, advocacy groups, and unions at great legal risk for engaging in cooperative or parallel activities in support of common legislative goals – or even merely for transmitting information about an incumbent lawmaker’s position on public policy issues.

Section 214 of the bill explicitly nullifies the current Federal Election Commission (FEC) regulations governing “coordination.” The bill commands the FEC to develop new regulations that “shall not require agreement or formal collaboration to establish coordination.” [emphasis added] The bill goes on to dictate a number of issues that must be addressed in new regulations.

“Substantial Discussion” Trap

Section 214 requires new “coordination” regulations that must, among other things, address “payments for communications made by a person after substantial discussion about the communication with a candidate . . .” [emphasis added]

Many groups submit questionnaires to members of Congress and other “candidates,” some of them covering many different specific issues. Other groups use standardized forms by which a candidate can “pledge” to endorse a certain legislative initiative — for example, the balanced budget amendment, or the Equal Rights Amendment, or “a ban on soft money.” These written inquiries are often accompanied by written or verbal communications intended to convey why the position(s) advocated by the group are good public policy, worthy of the support of a lawmaker or would-be lawmaker. But even completing the questionnaire or pledge alone could be sufficient to constitute “substantial communication,” since the lawmaker presumably returns the document to the group with the clear understanding that the group intends to convey his or her position to members of the public.

If the group does so by means that cost money, the group may soon be the target of a complaint that it made an illegal campaign “contribution,” due to the “coordination” that occurred between the lawmaker and the group. Moreover, as explained below, if the group’s spending constituted an illegal corporate “contribution,” then the member of Congress has also “received” an illegal corporate contribution (and, no doubt, committed another violation by failing to report this “contribution”). Such a complaint may well do the incumbent lawmaker both legal harm and political harm, even though he did no more than convey his position(s) to a group of interested citizens.1

Here is another example of “substantial discussion” that could lead to legal difficulties for a group (and for an incumbent lawmaker). Early in a congressional session, representatives of six groups met with Senator Doe to discuss what language they, and he, will use to collectively promote Doe’s landmark bill to ban widgets. The six groups then spend money to communicate with the public, including Senator Doe’s constituents, regarding the urgent need to enact the “Doe-Jones Widget Ban Act.” The campaign manager for the senator’s challenger then files a complaint, alleging that the groups have a “coordinated” relationship with Doe, and therefore the expenditures promoting Doe’s bill are actually “contributions” to Doe’s campaign. The legal consequences for the groups could be grave, because “contributions” by incorporated groups and unions have long been illegal.

But the consequences for the incumbent lawmaker could be equally grave, because if the groups’ expenditures to promote his bill are deemed to be “contributions,” then he also has violated three provisions of law: (1) he has received illegal “contributions” from corporations or unions; (2) he has received “contributions” in excess of the $2,000 limit; and (3) he has failed to report the “contributions” that he received from the groups.

“Common Vendors” Trap

The bill also commands that the FEC’s new regulations must address “payments for the use of a common vendor.” This provision is a license for regulations under which both members of Congress and groups would be at constant risk of entering into a “coordination” relationship merely because they both purchase services from the same pollster, ad agency, or other “common vendor.” Under such a regulation, a group can establish “coordination” with a member of Congress without the lawmaker being able to prevent it, or even knowing about it until after the fact. On the other hand, a member of Congress could unilaterally make it more difficult for numerous groups of their right to express themselves about his record, merely by making purchases from the leading vendor or vendors of certain services (e.g., mailing houses, pollsters) in a given area.

The bill also requires the new regulations to address communications made by “persons who previously served as an employee of a candidate or a political party.” The bill contains no time limit on the “disability” that would result from such prior employment. The bill’s language would permit, for example, the FEC to write regulations under which involvement in a group’s public communications by someone who had worked for a political party years earlier would automatically “coordinate” all federal candidates of the same political party who is discussed in that group’s communications to the public.

Political Action Committees

Above, we have described ways in which a member of Congress could unwittingly and unknowingly become “coordinated” with an incorporated group or union, and thereby be charged with receiving illegal “contributions.” There is an additional consequence once this has occurred: If the political action committee (PAC) connected to the “coordinated” corporation or union expends more than $5,000 on any activities in support of the lawmaker (or in opposition to his opponent) – even without any prior knowledge or involvement by the candidate – then those contributions also would also be regarded as illegal “contributions.” This is because once the parent corporation or union is deemed to have become “coordinated” in any of the ways outlined above, its connected PAC also becomes “coordinated” and thus loses its legal right to make independent expenditures in excess of $5,000 to support or oppose any candidate – and the candidate is guilty of “receiving” an illegal contribution if the PAC makes such expenditures.

Consequently, a Member of Congress could easily become guilty of violating federal election law if he unknowingly becomes “coordinated” with a group, and the group’s PAC subsequently makes expenditures over $5,000 without the Member’s prior knowledge, much less consent.

In closing, we believe that the coordination provision (Section 214) in the Shays-Meehan bill infringe upon our First Amendment right to free speech and right to petition the government for redress of grievances. Therefore, we strongly oppose this provision.

Respectfully,

David N. O’Steen, Ph.D.
Executive Director
National Right to Life Committee

Charles H. Cunningham
Federal Affairs Director
National Rifle Association

Categories: Free Speech Issues