Kathryn Jean Lopez of National Review conducted the following interview with Doug Johnson, legislative director of National Right to Life, regarding the upcoming campaign finance reform vote that threatens the free speech rights of pro-life organizations and other citizens groups.
Kathryn Jean Lopez: How did you wind up getting so involved in the campaign-finance-reform debate?
Douglas Johnson: In self-defense. Beginning in about the mid-1980s, National Right to Life and its affiliates encountered repeated attempts by the Federal Election Commission and state regulators to interfere with our communications with the public about the actions of those who hold or seek federal office. James Bopp Jr., who has long served as NRLC's general counsel, has successfully litigated dozens of cases striking down such speech restrictions on First Amendment grounds. We have great collection of rulings by U.S. district courts, U.S. courts of appeals, and the U.S. Supreme Court affirming that free speech about politics is at the core of what the First Amendment protects. Especially since 1996, however, we've been forced to resist attempts in Congress to enact many of the same sorts of unconstitutional restrictions under the guise of “campaign-finance reform.”
Lopez: What is the most handicapping aspect of the current Shays-Meehan bill in the House for the National Right to Life Committee?
Johnson: Keep in mind that the Shays-Meehan people, and the special-interest groups with whom they work, are writing yet another version of the bill, which they won't show anybody until they introduce it late Tuesday night – the night before the House debates it and votes on amendments. In the last version available, H.R. 2356, there are two sections that are especially dangerous. The first concerns “issue ads.” This provision would make it unlawful for advocacy groups such as NRLC (classified as 501c4 groups under the IRS code) to pay for radio or TV ads that even mention the name of a member of Congress for 30 days before any state's primary or runoff election, and again 60 days before the general election. The California and Texas congressional primaries are in early March, so if this restriction were already law, it would be unlawful today for Common Cause to buy a radio or TV ad in those two states to urge listeners to “call Congressman Jones and urge him to vote for the Shays-Meehan bill.” Only a federal political action committee (PAC) would be allowed to utter the congressman's name in that fashion – and only subject to the host of restrictions that already govern PACs, including mandatory breaching of donor privacy and severe limits on fundraising.
Moreover, many important votes occur in Congress during the 60 days before a general election. In both 1996 and 1998, for example, veto override votes on the Partial-Birth Abortion Ban Act occurred in September. As if that were not bad enough, the Senate added the Specter Amendment, a “backup” provision that would kick in if the 30/60-day provision was struck down as unconstitutional. The Specter provision is even worse. It is not limited to pre-election time periods, but would apply 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 the next 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, and so forth. It is noteworthy that even Common Cause deputy legislative director Matt Keller admitted, in an unguarded moment, that the ad restriction in is “problematic” and “probably overboard,” before he cavalierly added, “But we'll take our chances in the Supreme Court.” (National Catholic Register, April 22, 2001.)
The second major problem with the bill is the section that would radically redefine what constitutes illegal “coordination” between an advocacy group and a “candidate.” Keep in mind that “candidate” includes every member of Congress who has not announced his retirement – even a senator on the first day of his six-year term. This section 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. The bill defines “coordination” 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 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.
Lopez: You've found yourself fighting alongside some very strange bedfellows, haven't you? Has it helped forge alliances on any other issues?
Johnson: The national ACLU has strongly condemned the anti-free-speech provisions of each successive version of the McCain-Feingold/Shays-Meehan bills. In addition, a variety of liberal advocacy groups have expressed opposition to the provisions restricting issue ads and redefining “coordination,” as has the AFL-CIO. We are happy to make “common cause” with any group that sees the importance of preserving the right to communicate with the public about the actions of elected officials. But any such alliances are strictly on an issue-specific basis. Lopez: How did this issue come to be so demagogued?
Johnson: Big Media loves these kind of speech regulations, which only apply to players other than themselves. If the panoply of restrictions in the bill actually became law, perhaps the biggest single beneficiary would be Big Media: Those who own and produce the content of the news sources on which many Americans already are overly reliant. Under these restrictions, Big Media would have even greater power to define the public-policy agenda, and the average citizen would be even more dependent on the biases of media gatekeepers. In most parts of the country, if citizens who oppose abortion don't get accurate and timely information from NRLC, NRLC affiliates, or other like-minded groups, they won't get it at all. Similar limitations on independent speech about politicians have greatly enhanced media power in other countries like the United Kingdom and Canada, at the expense of the groups of ordinary citizens who are gagged. Groups that represent viewpoints that are out of sync with those of cultural and media elites are especially adversely affected by such restrictions. Thus, “campaign-finance reform” is often reported in good-versus-evil-interest groups,” but supported by “public-interest groups,” ads that talk about elected officials are “sham ads,” that sort of thing.
There is no doubt that Big Media has richly repaid John McCain's willingness to become the avatar of this elitist approach to political discourse. When McCain was seeking the Republican presidential nomination, he received promotions from Big Media equivalent to hundreds of millions in soft money – and the press essentially let him get by with outrageous things, like authorizing and paying for the anonymous “Catholic Voter Alert” telephone smear just before the Michigan primary. There would also be other big beneficiaries of the bill, such as the Big Foundation Bosses who have poured millions of dollars in so-called “soft money” into groups like the League of Women Voters to promote passage of these bills, Also, it would benefit millionaires like Jerome Kohlberg, who started the nonprofit corporation “Campaign for America” and who has spent millions on broadcast ads, naming members of Congress, to push this bill. The bill would not restrict the ability of millionaires to pay for such ads with their own money, you see.
Lopez: Could something in this week's debate make this campaign-finance-reform package better, less restrictive? Do you expect it will or is it more likely to die?
Johnson: In past congresses, the bill's sponsors have labeled all amendments to remove speech-restrictive provisions as “poison pills,” and such amendments have been defeated on the floor. This year the bill will be considered under a process dictated by a successful discharge petition, which allows only ten perfecting amendments even to be offered. We don't yet know what those ten amendments will be. One thing we are sure of: A vote for Shays-Meehan will be scored negatively in our scorecard of key votes for the year. Lopez: What kind of campaign-finance reform would NRLC support? Johnson: The Ney-Wynn substitute bill would impose some additional reporting requirements and the like, but it would not impede our rights to communicate with the public or with elected officials, so we are encouraging House members to support Ney-Wynn as an alternative to Shays-Meehan. Beyond that, we tend to favor the sorts of statutory reforms that would encourage more citizens to participate in communicating with and about their elected officials.
Congress should affirm the right of citizens to speak freely about those who hold or seek office, without being subjected to harassment by state or federal bureaucracies. It is wrong that so many citizen groups have been forced to expend their resources in federal litigation to preserve those rights. The free speech of many other groups has been chilled by the prospect of being subjected to investigation and sanctions. The Shays-Meehan provisions would invite a whole new round of that sort of thing.
ACTION: Please take a minute and call your member of Congress or fax a letter to their attention urging opposition to the Shays-Meehan bill.
Any member of Congress may be reached by calling the capitol switchboard at 202-224-3121. You can also find your member's web site with their specific contact information by going to:
http://www.house.gov/house/MemberWWW.html
Kathryn Jean Lopez is the executive editor of National Review Online.
(This article courtesy of National Review Online, where it first appeared.)
