An Analysis of the Speech-Restriction Provisions of the Shays-Meehan Bill (HR 417)

This memo analyzes some of the speech-restrictive provisions of the Shays-Meehan bill (HR 417), as introduced on January 19, 1999. This bill contains multiple provisions that would severely restrict the ability of citizen groups, such as NRLC and NRLC's 3,000 affiliates, to communicate with the public regarding the positions and voting records of those who hold or seek federal office -- or even regarding upcoming votes in Congress.

Press reports often mention that the bill would restrict broadcast ads that mention a "candidate" within 60 days of an election. However, the bill actually contains multiple speech restrictions that sweep far more broadly than the 60-day provision. The other, less-publicized provisions encompass both print and broadcast communications -- and apply year round.

The bill would generally prohibit corporations (including issue-oriented corporations such as NRLC) and unions from paying for communications to the public at any time of the year that federal regulators consider to be "for the purpose of influencing a Federal election," if that communication is pursuant to any "general or particular understanding" with the candidate (this could be, for example, an understanding that an organization will make known to the public whether or not a candidate signs a "pledge" form dealing with a certain bill), or if the sponsoring organization has any of 10 broad categories of links (direct or indirect, actual or presumed) to a member of Congress or other candidate, including the mere sharing of professional vendors. These prohibitions apply, the bill states, "regardless of whether the . . . communication . . . is express advocacy." (Sec. 206)

"Candidate" includes all incumbent members of Congress, unless they have announced their retirement, starting the day after any election -- including senators throughout their six-year terms.

In addition, even if a citizen group seeks to avoid "coordination" by abstaining from virtually all two-way communication with the offices of members of Congress or other candidates, the organization may not prudently issue communications that contain favorable or critical commentary regarding candidates at any time of the year, under the bill's expansive definition of "express advocacy."

Even if a group avoids both direct and indirect contacts (so-called "coordination") with "candidates" and avoids commentary on "candidates," the bill would prohibit the group from paying for broadcast communications that even mention the name or contain the likeness of a member of Congress, or candidate for Congress, for 60 days before a primary or general election.

All of the forms of speech described above would be permitted only to Political Action Committees (PACs). For discussion of the implications of allowing only PACs to engage in commentary on politicians, see pages 8-9.

Some supporters of the bill insist that it contains an "exception" to allow distribution of voting records and "voter guides." But legal analysis of this so-called "exception" demonstrates that it would effectively ban corporations and unions from distributing the types of congressional "scorecards" and voter guides that are typically produced by issue-oriented groups, because they reflect a viewpoint on the issues of concern to the organization. For discussion of the bogus "exception," see pages 7-8.

All of these restrictions would apply even to communications that seek to alert citizens to approaching votes on critical issues in Congress -- for example, the September, 1996 votes in the U.S. House and U.S. Senate on whether to override President Clinton's veto of the Partial-Birth Abortion Ban Act.

Candidate-Specific Issue Advocacy Enjoys the Highest Degree of First Amendment Protection

Some journalists have adopted the mistaken notion that nonprofit corporations have a right to advocate a viewpoint on "issues," but are engaging in illicit activity, or at best exploiting a legal "loophole," if they communicate with the public about the merits of the positions of specific "candidates" on issues. Actually, while such speech-restrictive theories have been pursued for decades by the Federal Election Commission, they have been emphatically rejected by the federal courts as violating the nation's paramount "election law," the First Amendment.

The Supreme Court has repeatedly emphasized that the First Amendment protects the right of groups of citizens, including nonprofit corporations, to freely communicate with the public regarding the actions and positions of persons who hold or seek federal office, without being subjected to limits on how much they can spend on such commentary or other restrictions such as those proposed in the Shays-Meehan bill. The legal term of art for such commentary on candidates' positions is "issue advocacy."

In cases such as Buckley v. Valeo (1976) and FEC v. Massachusetts Citizens for Life (1986), the Supreme Court held that only those communications that contain "express advocacy"-- explicit exhortations to vote for or against clearly identified candidates or parties -- may be subjected to government review and regulation (and even then only within certain limits). The Court has defined express advocacy to extend only to communications "containing express words of advocacy of election or defeat, such as" (in the Court's own words) "'vote for', 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject'."

The Supreme Court's "express advocacy" test is clear and objective -- a "bright line" that cannot be removed or moved by an act of Congress, because it is rooted in the First Amendment itself, which prohibits Congress from passing any law "abridging the freedom of speech, or of the press." The definition is based on the actual words used in a communication -- not on some bureaucrat's post-hoc judgment about the "motivation" or "intention" or "effect" of the communication.

The Supreme Court has explicitly rejected the idea that a political communication should be evaluated on the basis of the judgment of some third party (such as the Federal Election Commission) regarding the motivation or intent of the communication, or on the basis of somebody's judgment about how the message was "understood" by those who received it -- the sorts of criteria embedded in the subjective key terms found in the Shays-Meehan bill ("for the purpose of influencing a Federal election," "anything of value," "expressing unmistakable and unambiguous support for or opposition to one or more clearly identified candidates," etc.). As the Court said in Buckley:

[W]hether words intended and designed to fall short of invitation [to vote for or against a candidate] would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.

So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.

Under the Shays-Meehan bill, however, they are not "free to spend as much as they want to promote the candidate and his views." Indeed, under the bill, an organization that has lobbying contacts with congressional offices may not prudently "promote the candidate and his views" at any time of the year, and may not pay for an ad that even mentions his name on the radio or TV for 60 days before a primary or general election.

Under current law, corporations and unions generally are not allowed to spend funds for express advocacy. (There are certain exceptions, but none that need detain us here.) As explained above, the Supreme Court has ruled that "express advocacy" means explicit words that expressly urge a vote for or against a specific candidate, and has held that the First Amendment does not allow legislative bodies to expand this definition in order to regulate broader classes of speech about those who hold or seek public office.

The bill seeks to expand the definition of "express advocacy" light years beyond the Supreme Court's "bright line." For starters, the bill expands the definition to include "words that in context can have no reasonable meaning other than to advocate the election or defeat of one or more clearly identified candidates," or "expressing unmistakable and unambiguous support for or opposition to one or more clearly identified candidates when taken as a whole and with limited reference to external events, such as proximity to an election."

These proposed definitions of "express advocacy" would sweep in virtually any sort of commentary on the voting records or positions of specific politicians. If the commentary is negative, the unhappy candidate will file a complaint with the FEC, arguing that the content of the communication is intended to hurt his re-election. If the commentary is positive, the complaint would be filed by the opposing candidate, who would argue that the dissemination of the favorable information amounts to "unmistakable and unambiguous support for" the candidate whose record or positions are portrayed in a favorable light by the citizen group's communication.

In addition to these blanket, year-round restrictions on corporate and union commentary on politicians, the bill contains an additional prohibition: During the 60-day period prior to any primary election in a given state or district, and during the 60-day period prior to the general election, nationwide, the bill prohibits any corporation or union from "referring to one or more clearly identified candidates in a paid advertisement that is transmitted through radio or television." [emphasis added]

It is rather ludicrous to argue that the First Amendment, as interpreted by the Supreme Court, will permit lawmakers or political appointees to establish regulatory control over citizen groups' communications to the public, merely because those communications "refer to" the lawmakers or other "candidates." Yet, that is what Mr. Shays, Mr. Meehan, and the special-interest groups supporting the bill maintain.

With respect to this restriction, it is appropriate to recall the words of the Supreme Court in Buckley v. Valeo. In striking down a $1,000 limit on independent expenditures enacted by Congress in 1974 as a violation of the First Amendment, the Court noted that such a limitation

would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication.

The Bill's So-Called "Exception" for Voter Guides Would Dictate Content of Speech About Politicians

To the year-around ban on commentary on politicians by corporations or unions, the authors of the bill have provided an "exception." Legal analysis of this so-called "exception," however, reveals an attempt to dictate a narrow set of "speech specifications" under which elected officials would deign to allow citizen groups to disseminate their voting records -- specifications that would effectively ban the "scorecards" and voter guides typically distributed by issue-oriented groups. Typically, such publications reflect a point of view on an issue or set of issues, as may be evident in the issues selected for discussion and the way that they are characterized, through "positive" or "negative" ratings or grades, and through explicit commentary -- all of which would be verboten under the bill.

Under the bill, dissemination to the public by a non-PAC of a publication dealing with voting records or positions of officeholders and officeseekers would be an illegal corporate campaign expenditure, at any time of any year, unless it meets all of the following conditions:

1. it is limited "solely" [emphasis added] to the subjects specified in the law, those being "the voting record or position on a campaign issue" (these are powerful content restrictions that would be interpreted by regulation and enforced by the FEC); and

2. it is not based on interviews or verbal communications with the candidate or his agent, since such contacts would be deemed to establish impermissible "coordination" with the candidate (but permission is granted for "questions in writing"); and

3. it contains no "words that in context can have no reasonable meaning other than to urge the election or defeat of one or more clearly identified candidates." This is a catch-all anti-advocacy formula which would be enforced by the speech cops at the FEC, who have often demonstrated a belief that they can sense such an "urge" even when it is not expressed in explicit words.

However, even if a communication meets all of the above-stated government-imposed speech specifications, it would still be forbidden if it is deemed to be "coordinated" with a candidate or party, a term that is defined elsewhere in the bill with breathtaking expansiveness. (See pages 9-12.)

The specific conditions set forth in the bill's definition of "express advocacy" and in the "exception clause" in many respects track past attempts by the FEC to regulate commentary on politicians -- attempts that have been invalidated in case after case as violations of the First Amendment.

For example, one of the bill's definitions of express advocacy ("expressing unmistakable and unambiguous support for or opposition to one or more clearly identified candidates when taken as a whole and with limited reference to external events, such as proximity to an election") is very similar to a 1995 FEC definition ("when taken as a whole and with limited reference to external events, such as proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat or one or more clearly identified candidates"), declared unconstitutional by the First Circuit in Maine Right to Life Committee (Supreme Court denied cert, Oct. 6, 1997). The bill's definition is also similar to the FEC's "circumstances" rationale emphatically rejected by the Fourth Circuit in Christian Action Network (1997). The bill's proposals to dictate tone and content of voter guides are similar to the FEC regulations declared unconstitutional by the First Circuit in Clifton (Supreme Court denied cert, February 23, 1998).

Allowing Only PACs to Comment on Politicians Unconstitutionally Restricts the Free Speech of Citizen Groups

The net effect of the restrictions contained in the Shays-Meehan bill would be to generally prevent expenditures by citizen groups for commentary on officeholders or officeseekers, with the exception of expenditures conducted by federal Political Action Committees (PACs), under the panoply of rationing mechanisms and other restrictions that apply to PACs under the Federal Election Campaign Act (FECA).

Limiting commentary on politicians to PACs would, even without any further restriction, silence thousands of smaller citizen-activist groups, particularly at the local or state level, from speaking about politicians, since they lack the resources to comply with the complex legal and accounting requirements that govern the establishment and operations of PACs (e.g., hiring accountants and lawyers with expertise in federal election law, filing complex reports, reporting names of donors to the government, etc.). This would apply to many of NRLC's 3,000 local affiliates.

In FEC v. Massachusetts Citizens for Life, Inc. (1986), the Supreme Court ruled that it is unconstitutional to enforce the Federal Election Campaign Act [FECA] to completely prohibit non-profit, issue-oriented corporations from making expenditures even for independent express advocacy, or to require that such express advocacy be conducted only through a PAC. The Court recognized the speech-suppressing effect of a policy of allowing only PACs to talk about politicians:

The FEC minimizes the impact of the [FECA] legislation upon MCFL [Massachusetts Citizens for Life]'s First Amendment rights by emphasizing that the corporation remains free to establish a separate segregated fund [i.e., a PAC], composed of contributions earmarked for that purpose by the donors, that may be used for unlimited [independent] campaign spending. However, the corporation is not free [under the FEC reading of the FECA] to use its general funds for campaign advocacy purposes. While that is not an absolute restriction on speech, it is a substantial one.

[The Court proceeded to enumerate at length the very substantial limitations and burdens that apply to raising and spending PAC funds under the Federal Election Campaign Act, and then observed:] Furthermore, such duties require a far more complex and formalized organization than many small groups could manage....its practical effect on MCFL in this case is to make engaging in protected speech a severely demanding task....Regulation of corporate political activity thus has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes. Groups such as MCFL, however, do not pose that danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace.

However, even groups that have the resources and legal sophistication to form and operate PACs would be severely limited in how much they can speak about officeholders or officeseekers, because PACs are already subject to a host of restrictions on fundraising and expenditures, which the bill would tighten still further.

Under current law, for example, no individual may support a given PAC with more than $5,000 in any one year, corporate contributions are illegal, and a PAC "connected" to a group such as NRLC is allowed to accept even such limited donations only from the parent group's members. In addition, the names of all donors of over $200 must be reported to the government (the bill would change this to $50). These restrictions would have the net effect of sharply reducing the amount of commentary on officeholders and officeseekers -- which is the real goal.

Expansive Definitions of "Contribution" and "Coordination With A Candidate" Sweep in Issue Advocacy and Therefore Violate the First Amendment

In addition to the unconstitutional attempts to re-define "express advocacy," as discussed above, the bill also attempts to suppress issue advocacy in other ways: by vastly expanding the scope of what constitutes a prohibited corporate "contribution" (Section 206), and by adopting a similarly expansive position on what constitutes impermissible "coordination with a candidate" (Section 206).

Section 206 would re-define as a "contribution" (and therefore, illegal for a corporation):

anything of value provided by a person in coordination with a candidate . . . for the purpose of influencing a Federal election, regardless of whether the value being provided is a communication that is express advocacy . . .

Thus, even communications that mention no specific candidate could become the subject of successful complaints to the FEC, if certain candidates or their supporters believe that they tie in with issues of public debate in a manner that may "influence" an election. For example, if a campaign involves ongoing debate between two candidates on whether partial-birth abortions should be banned, and NRLC purchases newspaper ads that describe partial-birth abortion in graphic terms, the pro-abortion candidate may well declare that such ads are something "of value . . . for the purpose of influencing a Federal election," even if they mention neither candidate's name.

Under this expansive provision, it becomes irrelevant whether a given communication fits within the bill's expansive definition of "express advocacy," because the ban on a communication deemed to be "of value" applies "regardless of whether the value being provided is a communication that is express advocacy."

The bill defines "coordinated activity" or "coordination with a candidate" to mean any of 10 broad categories of direct or indirect contacts between a "candidate" (including the offices of incumbent members of Congress) and a citizen group -- including types of contact that are routine for issue-oriented groups that lobby Congress. Once "coordination" has occurred under these expansive definitions, even a PAC may speak on behalf of the candidate only up to the amount allowed for direct contributions to that candidate: $5,000 per election. You can't communicate with many people for $5,000.

Section 206 seeks to prohibit issue-oriented groups from soliciting information from candidates -- including incumbent members of Congress -- regarding their positions on issues, and then communicating that information to citizens in grassroots lobbying

or voter education campaigns. The bill says that "coordination with a candidate" includes

a payment made by a person in cooperation, consultation, or concert with, at the request or suggestion of, or pursuant to any general or particular understanding with a candidate. . . or an agent [emphasis added]

This could apply, for example, to the common practice of issue-oriented organizations sending candidates standardized forms by which a lawmaker or other "candidate" can "pledge" to endorse a certain legislative initiative -- for example, the balanced budget amendment, or the Equal Rights Amendment -- with the "general understanding" that the sponsoring organization will disseminate reports regarding which candidates have signed the "pledge."

Lest anyone think that this construction is far fetched, in 1996 the FEC's general counsel took the position that the organization U.S. Term Limits, a nonprofit lobbying corporation, had violated the Federal Election Campaign Act by disseminating a press release that praised congressional candidate Ron Lewis "for support of a crucial Congressional reform movement," and stating that an USTL staffperson was in the district to "draw attention to the differing stands" taken on that issue by Lewis and his named opponent. This occurred even in the absence of the type of statutory language that the Shays-Meehan bill would provide.

The Bill Presumes Coordination, In Violation of the Supreme Court's 1996 Decision, and Unconstitutionally Requires Forfeiture of Rights of Association

Section 206 further re-defines what constitutes "coordinated activity" or "coordination with candidates" to include

a payment made by a person if, in the same election cycle, the person making the payment retains the professional services of any person that has provided or is providing campaign-related services in the same election cycle to a candidate . . . in connection with the candidate's pursuit of nomination for election, or election, to Federal office, including services relating to the candidate's decision to seek Federal office, and the person retained is retained to work on activities relating to that candidate's campaign. . . . the term "professional services" means polling, media advice, fundraising, campaign research or direct mail . . . services in support of a candidate's pursuit of nomination for election, or election, to Federal office. [emphasis added]

Section 206 amounts to an unconstitutional penalty on free speech. In order to exercise its First Amendment right to speak, a corporate entity cannot be forced to forfeit its right to associate freely with legitimate providers of services as it sees fit. Moreover, under this absurd provision, if a vendor at any point during a two-year election cycle decided on his own to sell some election-related service to a specific candidate for federal office, that vendor would thereby unilaterally cancel the free-speech rights of all of his PAC clients regarding that candidate.

Furthermore, in some areas there may be only one or two vendors of a specific service that a PAC may require in order to conduct its independent expenditure. Thus, such a prohibition could impede the PAC's ability to conduct certain independent expenditures at all.

The First Amendment allows spending limits to be applied to an express advocacy expenditure only if that expenditure actually has been discussed between the candidate and the person or group conducting the expenditure. Coordination may not be "presumed" on the basis of some other type of relationship between the candidate and the speakers. In Colorado Republican Federal Campaign Committee v. FEC (1996), the Supreme Court emphatically rejected the FEC's position that an expenditure by a political party may be "presumed" to be coordinated with the federal candidate nominated by that party. The constitutional test, in the Court's analysis, is whether the specific expenditure was in fact the subject of communication between those conducting the expenditure and the candidate (or his agents). ("We therefore treat the expenditure, for constitutional purposes, as an 'independent' expenditure, not an indirect campaign contribution" because, the Court said, "the summary judgment record shows no actual coordination as a matter of fact." Emphasis added.)

If the Constitution forbids applying a "presumption of coordination" even between a political party and a nominee of that party, then it clearly follows that it is unconstitutional to presume that a citizen group or a PAC expenditure is coordinated, merely because the sponsoring organization exercises its general free-association rights in the course of exercising its free-speech rights.

"Soft Money" Ban Unconstitutionally Nullifies the Right of Political Parties to Engage in Unrationed Issue Advocacy

The bill (Section 101) completely prohibits organs of the national political parties from receiving so-called "soft money" -- a term that really refers to all funds that are not rationed and controlled by the Federal Election Campaign Act (FECA). This is unconstitutional. Under rulings of the U.S. Supreme Court, the First Amendment protects the right of political parties to sponsor communications that discuss issues, or the positions of officeholders or officeseekers on those issues ("issue advocacy"), without being subjected to the rationing laws that the FECA applies to communications that contain explicit endorsements of candidates ("express advocacy"). The bill would effectively nullify political parties' First Amendment right to engage in issue advocacy, by requiring that all party ads be conducted under the restrictions that currently apply only to express advocacy communications (since the parties would be prohibited from raising any money that did not conform to those restrictions).

If "reform" advocates successfully obliterate the distinction between issue advocacy and express advocacy with respect to political parties, they will then redouble their attacks on issue advocacy by citizen groups such as NRLC. Those who support free speech about political figures should oppose all restrictions on issue advocacy, whether engaged in by political parties, citizen groups, or others.

Thanks so much, Molly, for your hard work on this issue. It's really helpful to have you keeping track of the stories and making sure we all see them. :)

Molly - Thanks for the FYI.

weikel - Thanks for the work.

Congress and their lack of respect for their oath and the Constitution is sickening.

Thanks!!! I wrote the letter to the Editor, we'll see if the people here (in Florida) can understand. ;-) I'll let you know if it gets published. :-) Thanks again!

One does not really need to read all of Shays-Meehan to understand what the real objective is. Which brings us to today's question: has Oregon's Sen. Gordon Smith even read the bill before declaring he would NOT support Sen. Mitch McConnell's attempt to have the Senate reconsider what is clearly a bill in contravention of the Constitution? It is I think, significant that a Republican Senator from Oregon thinks we should not be concerned with upholding the paramount law of this country. No wonder Tommy Daschund and Comrades Shays and McLame are jumping for joy. Before you know it, 1984 has arrived in our Republic.

I live in CT. Yesterday I got my annual request for some bucks from the CT RNC. Amazingly enough they were singing the praises of the three RINOS in CT, Johnson, Shays and my personal cross to bear, Simmons.

I wrote them a note telling them that I would no longer be funding a group of shmucks who so brazenly violated their oaths to preserve and protect the Constitution.

The sad part is they probably won't even know what I'm talking about.

We must field more conservatives in the primaries, and ignore the cry "They'll never win in this state!"

Look, I understand politics is about compromise, but NOT the First Amendment, nor the Second....

And it's critical we make this clear to them.

They ignore our most basic rights at their peril!

Thanks, SB!

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