Vital Signs: Pleading the First

As used today, the term “campaign finance reform” is a misnomer, albeit a useful one for its proponents. Proposals like the McCain-Feingold bill (S. 25), its House companion the Shays-Meehan bill (H.R. 493), and the Farr-Gephardt bill (H.R. 600) are more about suppressing and severely rationing the speech of citizens’ groups.

Under any of these proposals, the right of such groups to publicly discuss and express opinions on the positions taken by members of Congress (or challengers), their voting records, or even current issues of public interest would be nearly eradicated and effectively chilled.

Central to the controversy is “issue advocacy.” It is a legal term of art that has been used by the courts to define speech that is about issues, including issues debated in campaigns and the positions of candidates. Only speech that expressly advocates the election or defeat of a clearly identified candidate by the use of phrases such as “vote for,” “vote against,” “elect,” “defeat,” “support,” “oppose,” et cetera, may be subject to governmental regulation.

The McCain-Feingold bill uses a strategy that first broadens the definition of express advocacy so that it includes currently unrestricted issue advocacy. Then, the definitions of “contribution” and “coordination” are broadened so as to make independent, express advocacy spending extremely difficult, if not impossible. The effect of this attack is to turn most communications about members of Congress and issues into contributions that are subject to the severe expenditure limit.

The McCain-Feingold definition of “express advocacy” covers any communication to the public made within thirty days of a primary or sixty days of a general election that refers to a clearly identified candidate and “that a reasonable person would understand as advocating the election or defeat of the candidate.”

So a citizens’ group, other than a PAC conforming to the bill’s regulations of express advocacy, that dared criticize a politician, his positions, or voting record during the speech blackout period could expect to feel the heavy hand of the law when the candidate discussed filed a Federal Elections Commission complaint. It is not far-fetched to imagine that, were speech blackout periods passed into law and enforced, some members of Congress would work to see that controversial legislation was considered during that period when citizens could not effectively criticize or discuss their actions or votes.

The media’s already formidable power in influencing elections and shaping public policy is evidenced by the fact that proposals as outrageous as these are being taken seriously at all. Enhancing that power by effectively silencing groups that communicate different values and views is the real special-interest threat.

Author

  • David N. O'Steen

    David N. O'Steen is executive director of the National Right to Life Committee.

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