Communications Department
202.626.8825
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NRLC Letter to U.S. House members explaining objections to Shays-Meehan bill

Feb 7, 2002 | Free Speech Issues

202) 626-8820
February 7, 2002
Re: NRLC scorecard vote on Shays-Meehan bill

Dear Member of Congress:

During the week of February 11, the House will take up the Shays-Meehan bill. Because the Shays-Meehan bill contains restrictions that would greatly impair the rights of the National Right to Life Committee (NRLC) and its affiliates to effectively inform the public about legislation in Congress, and would place both such organizations and members of Congress at legal risk for engaging in constitutionally protected communications regarding public policy issues, NRLC strongly urges you to oppose this legislation.

NRLC intends to include any vote on adoption of the Shays-Meehan bill in the NRLC scorecard of key congressional roll calls for 2002.

The latest available version of the bill (H.R. 2356) retained nearly all of the elements of the Senate-passed version of the McCain-Feingold bill (S. 27), to which NRLC had previously expressed strong opposition.

At several crucial legislative junctures in the past, the Senate and House managers of this legislation have made or proposed last-minute changes and then circulated misleading materials claiming that the changes had addressed objections such as those presented in this letter. The most recent example of such a last-minute “fix” was a proposed Managers’ Amendment circulated last July, just before the bill was expected to come to the floor. None of the changes proposed in that Managers’ Amendment, however, actually corrected any of the problems addressed here.

NRLC’s negative assessment of some key provisions the bill find support in the commentary of many independent analysts. For example, respected legal writer Stuart Taylor Jr. wrote in the Jan. 28 edition of National Journal that “the far-reaching ‘reforms’ currently in Shays-Meehan and its Senate counterpart, McCain-Feingold, would be a non-cure worse than the disease . . . . Shays-Meehan’s most extreme and least publicized provisions have nothing to do with soft money. . . . endorsing them would be a dangerous dereliction of Congress’s constitutional responsibility.”

Washington Post columnist David Broder wrote that “the authors of the Senate bill have gone way too far in restricting freedom of speech.” Syndicated columnist Mike Kelly called the bill “reeking mess . . . an unsupportable, unconstitutional assault on the rights to speak and associate freely.” Syndicated columnist Charles Krauthammer concluded, “It is hard to think of a more frontal assault on the First Amendment.”

The St. Louis Post-Dispatch (June 24, 2001) editorialized: “What many well-meaning supporters don’t realize, however, is that the McCain-Feingold bill that passed the Senate is deeply flawed and a serious threat to free speech. Does the nation need campaign finance reform? Yes it does — but not at the risk of censoring the speech that is the lifeblood of a democratic election campaign. . . . We don’t want to destroy our system of free elections in order to save them.”

Among the most objectionable provisions of the bill are those dealing with issue advocacy and “coordinated” activity.

With respect to issue advocacy: Sections 201, 203, and 204 of H.R. 2356 retain the Senate bill’s unconstitutional restrictions on broadcast issue ads. The net effect of these provisions is to ban NRLC, NRLC affiliates, and all other 501(c)(4) advocacy corporations (but not PACs) from funding TV or radio ads that even mention the name of a local member of Congress for 30 days before a state’s congressional primary, and for another 60 days before the general election (or a runoff election). This restriction applies to any ad that “can be received” by 50,000 or more “persons,” including minors, within a district — which covers nearly any TV or radio ad, since few persons do not possess TVs and radios.

For example, if the House takes up a bill dealing with unborn victims of violence on March 6, 2002, NRLC would be prohibited from running ads the week before the vote on Christian radio stations in the districts of House members in California, Illinois, and Texas, urging, “Please call Congressman [name] and ask him to vote for the bill to protect unborn victims of violence,” because the ads would mention the elected representatives’ names.

Please note that a limited “exception” (the “Snowe-Jeffords” provision) in the original 2001 McCain-Feingold bill to allow 501(c)(4) advocacy groups to sponsor such ads, using funds raised from restricted and publicly identified donors, was effectively nullified by adoption of a Wellstone amendment that has been retained in H.R. 2356 (Section 204). Thus, the House bill does NOT permit non-PACs to sponsor such ads while requiring “disclosure” — rather, it bans them outright.

It is noteworthy that even Common Cause deputy legislative director Matt Keller admitted the ad restriction in the Senate bill (retained in H.R. 2356) was “problematic” and “probably overboard,” adding, “But we’ll take our chances in the Supreme Court.” (National Catholic Register, April 22, 2001)

If the ban on issue ads is struck down as unconstitutional, Section 201 contains a “backup” provision that in some respects is even worse. The backup provision is not limited to pre-election time periods, but would apply all year-round to any broadcast ad that “promotes,” “supports,” “attacks,” or “opposes” a “candidate,” and that is “suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate” — whatever that means. Under this sweeping and vague standard, running a radio ad 20 months before an election in which the statement was made, “Congressman Jones is pro-life,” could subject an organization to a costly investigation by the FEC as to whether listeners who heard the ad on a particular station would understand the term “pro-life” to be “suggestive” that they should vote for Congressman Jones.

The sections of H.R. 2356 on “coordinated” activity (Sections 211 and 214) would create a web of tripwires that would place incumbent lawmakers and advocacy groups at great legal risk for engaging in cooperative or parallel activities in support of common legislative goals. “Coordination” is broadly defined to include “any general or particular understanding” with a candidate which is associated with any later activity (not just broadcast ads) deemed to be “in connection with” a candidate’s election — a phrase which the U.S. Supreme Court has held is impermissibly vague and overbroad (Massachusetts Citizens for Life v. FEC, 1986).

Moreover, the bill (Section 214) explicitly repudiates current law by specifying that any FEC regulations issued to enforce the anti-coordination provisions “shall not require collaboration or agreement to establish coordination.” Under this language, an advocacy group and a member of Congress could be deemed to have engaged in illegal “coordinated” activity, for example, if the group distributed printed literature publicizing the results of a candidate questionnaire or “pledge” on one or more issues.

Detailed legal analyses of the provisions of the Senate-passed bill, most of which are replicated in H.R. 2356, are available at the website of the James Madison Center for Free Speech at www.jamesmadisoncenter.org. Additional information on how such provisions would adversely affect NRLC, NRLC affiliates, and other citizens’ groups are found at www.nrlc.org/Federal/Free_Speech/index.html.

Thank you for your consideration of NRLC’s position on this legislation.

Sincerely,
David N. O’Steen, Ph.D.,
Executive Director
Douglas Johnson,
Legislative Director
(202) 626-8820
Legfederal@aol.com

Categories: Free Speech Issues