April 2, 2001

Letter to U.S. Senate: How Amendments Worsened the McCain-Feingold Bill

Dear Senator:

The National Right to Life Committee (NRLC) urges you to vote no on the final, amended version of the McCain-Feingold bill (S. 27). The adoption of the Wellstone, Specter, and McCain amendments resulted in a final bill that is considerably worse than the bill as introduced. Thus, NRLC will include the vote on final passage of S. 27 in our scorecard of key votes for the 107^th Congress. Among the major problems are the following:

Ads that Name Members of Congress or Other “Candidates”As amended by the Wellstone Amendment, the bill bans NRLC, NRLC affiliates, and all other 501(c)(4) advocacy corporations (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). [The Wellstone Amendment modified the Snowe-Jeffords provision of the original bill, which seriously restricted, but did not flatly ban, 501(c)(4) groups from sponsoring such ads.] For example, if the House of Representatives takes up a bill to ban partial-birth abortions on March 4, 2002, NRLC would be prohibited from running ads the week before the vote on Christian radio stations in the districts of “swing vote” House members in California, Illinois, Ohio, Pennsylvania, and Texas, urging, “Please call Congressman _______and urge him to vote for the bill to ban partial-birth abortions.”

The Specter Amendment (“in connection with . . .”)If the Snowe-Jeffords-Wellstone ban on “issue ads” described above is struck down as unconstitutional by the courts, the Specter Amendment adopted on March 29 (see S3119-20) would spring into effect — and it would impose an even more sweeping restriction.

The Snowe-Jeffords-Wellstone provision would apply during pre-election blackout periods, but the Specter Amendment standard would apply all year round. The Snowe-Jeffords-Wellstone provision applies to ads that name or depict a “candidate,” but Specter’s trigger-clause provision would apply 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.” Under this sweeping and vague standard, a radio ad run today – 19 months before the next election – that simply said, “Congressman Jones is pro-life,” could subject an organization to a costly investigation by the FEC as to what audience was targeted by the ad, whether the term “pro-life” is “suggestive” that listeners should vote for Jones, etc.

 

The McCain Amendment (“coordination”)The last-minute McCain Amendment rewrote the bill’s “coordination” section, but the amendment did not change the objections NRLC previously voiced to Section 214. Under the McCain Amendment, “coordination” is still broadly defined to include “any general understanding” with a candidate, which could include such activity as submitting and returning a questionnaire on a range of legislative issues. The McCain Amendment specifically repudiates current law by dictating that no “collaboration or agreement” is required “to establish coordination.”

Moreover, under the amendment, a prohibited coordinated communication includes any “disbursement made . . . in connection with a candidate’s election, regardless of whether the . . . disbursement is for a communication that contains express advocacy.” [emphasis added] The phrase “in connection with” is both sweeping and vague. Indeed, in 1986, the U.S. Supreme Court held in Massachusetts Citizens for Life v. FEC that the phrase “in connection with” an election was unconstitutionally vague and overbroad, because it covers commentary on political figures that enjoys core protection under the First Amendment (“issue advocacy”).

Thus, under the McCain Amendment, a group could be subject to debilitating FEC investigations and penalties merely for communicating with a member of Congress regarding his positions on certain legislative issues, and then disseminating that information to the public through grassroots lobbying alerts, voter guides, or other communications, including printed literature, broadcast ads, or telephone calls. In addition, the bill would require a senator to report all such “coordinated” activity by the organization in question, even though he may have had no knowledge of the specific activities involved.

Sincerely,

 

David N. O’Steen, Ph.D.
Executive Director

Douglas Johnson
Legislative Director