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 hough
the House will be taking up campaign-finance reforms this week,
there is still time to discuss the most speech-threatening provision
in the pending legislation. Contrary to general belief, it is not
the ban on political advertising 60 days before an election. A similar
ban (but which applied only to the day before an election) was struck
down as unconstitutional by the U.S. Supreme Court in 1966, and
the ban now being contemplated would almost certainly be struck
down as well. The provision that would actually be most damaging
to grassroots activity and political debate — and which may
escape the wrath of the courts — is the tighter ban on citizen
activity coordinated with candidates.
The Shays-Meehan
bill (and its Senate companion, McCain-Feingold) would amend the
Federal Election Campaign Act, which regulates "expenditures"
made for the purpose of influencing federal elections and "contributions"
to candidates for federal office. Because the act operates at the
core of First Amendment activity, the Supreme Court held over 25
years ago that, where speech is implicated, the act can reach only
those expenditures for advertising that expressly advocate the election
or defeat of a clearly identified candidate. And while express advocacy
expenditures that are made independently of candidates must be reported
to the public, they cannot be limited. Dollar limits on contributions
to candidates are permissible, however, because they do not directly
infringe upon the speech of the spender, leaving open alternate
avenues for the advocacy of political issues. Expenditures placed
in cooperation or in concert with a candidate — so-called "coordinated
expenditures" — are also treated as contributions under
the act and can be subject to dollar limits.
For the past
seven years, the election bar has been debating whether coordinated
spending for speech must also be limited to express advocacy. Many
say no, that it is the fact of coordination alone that places the
activity under the act; opponents counter that advocacy groups are
in need of a well-defined safe harbor from investigations into coordinated
activity no less than from investigations into whether their issue
discussion is secretly "intended" to benefit a candidate.
Otherwise, debate on public issues cannot be "uninhibited,
robust and wide open," as the First Amendment requires.
But the Shays-Meehan
and McCain-Feingold bills sweep aside the entire debate, by changing
the act's definition of "contribution" to include "any
coordinated expenditure or other disbursement made by any person
in connection with a candidate's election, regardless of whether
the expenditure or disbursement is for a communication that contains
express advocacy."
Without an
express-advocacy tripwire, however, groups anywhere in the country
that make a "disbursement" for phone banks, polls, literature
drops, issue ads, e-mail, voter guides, and other activity during
elections will be left to wonder how to insulate themselves from
investigation. The courts have long recognized that the mere threat
of investigation will cause many groups to stay silent. In 1945,
the Supreme Court explained the general proposition that a "speaker
in such circumstances could avoid words" such as "vote
for Jones," "elect Jones," or "defeat Smith."
But where a standard of legality is vague, the "effort to observe
it could not be free speech, free press, or free assembly, in any
sense of free advocacy of principle or cause."
This kind of
pervasive uncertainty is what the James Madison Center's James Bopp
Jr. calls the "coordination trap" awaiting all issue advocates
once Shays-Meehan becomes law. It arises inexorably from what the
ACLU's Joel Gora foresees as a "coordination witch hunt."
Sophisticated political players now include in their arsenals lawsuits
and routine complaints to the Federal Election Commission (FEC),
which are often the quickest and least expensive ways to tarnish
an opponent's image, take him off message, or make him divert valuable
resources to defending himself. If Shays-Meehan's coordination provisions
are signed into law, it will take the political elite about three
minutes to deduce that all complaints of coordinated activity between
citizen and campaign must lead to a full-blown investigation by
the FEC — an investigation to which the citizen-respondent
can offer no affirmative defense. For an innocent respondent, the
express-advocacy standard would serve as a legal defense —
as proof that the ad is protected as a matter of law, and proof
that would bring the investigation quickly to a close. But without
it, any other defense would amount to little more than a self-serving,
factual assertion ("I don't know any congressmen"), and
the FEC would be obliged to take all actions necessary to determine
who has the better version of the facts, complainant or respondent.
Any political operative worth his salt would tell party chairmen
around the country to be on the lookout for grassroots groups with
dissonant messages. Once those county chairs or other subordinates
notice an advertiser gaining a head of steam, getting noticed, or
gaining traction, they will know to file an allegation of coordination.
Provided the complaint is reasonably well crafted (a relatively
easy task), the FEC will have no choice but to open an investigation.
Because the
Supreme Court has held that contribution limits are constitutional,
there is no guarantee that, in reviewing McCain-Feingold, the Court
would not for the first time allow issue advocacy to be regulated
— as an in-kind contribution — even though issue advocacy,
unlike money contributions, always involves direct speech of the
spender.
By changing
the act's definition of "contribution," both bills ensure
that respondents wouldn't just be facing a potential violation of
the act's contribution limits. There would also be the risk that
the FEC would determine that a group's "major purpose"
was coordinated-activity, making the group itself a "political
committee," subject — now and in the future — to
the act's full panoply of registration and reporting requirements.
This would prove an undue hardship to any average issue organization
(and is largely the reason for the Supreme Court's decision, in
1986, to exempt from the act much activity of nonprofit corporations).
Moreover, because roughly 50 percent of all candidates are incumbent
officeholders whom citizens have a right to petition for a redress
of grievances, the legislation would often present issue advocates
with the Hobson's choice of either renouncing their right to petition
the government, in order to save their right to speak about issues
— or vice versa.
In any event,
it now takes the average advocacy group that has been charged with
coordinating its activities about three to four years to prove its
innocence before the FEC. One group was cleared of an FEC finding
by a federal court after six years, 84 depositions, and approximately
100,000 pages of discovery documents. And proving one's innocence
will only get tougher under Shays-Meehan and McCain-Feingold. Both
bills not only regulate issue advocacy, but go further by repealing
the current standard for proving illegal coordination and ordering
the FEC to create a new one. The current standard requires proof
of "substantial discussion or negotiation" between the
candidate and citizen. Both new bills, however, dictate that the
new "regulation shall not require collaboration or agreement
to establish coordination." In fact, the bills require nothing
more than evidence of a "general understanding" between
citizen and candidate, predicated on factors such as "employment
history," use of a "common vendor," and other considerations.
If a group and candidate hire the same consultant, that fact alone
may be enough to support a charge of coordination. If a former staffer
of a pro-environment candidate goes to work for, say, the Sierra
Club, then anything that organization does may be deemed coordinated
activity.
The McCain-Feingold
bill would also tack on one more level of confusion, by defining
an "independent" expenditure as an expenditure that is
not coordinated with the candidate or his agent and one that is
not coordinated with someone who himself has engaged in coordinated
activity with the candidate or his agent. It's not clear how a would-be
speaker walled off from a campaign could ever be sure that everyone
he speaks with has not spoken to a member of that campaign. What
is clear is that if any two persons in the world are separated
by just six other people — an idea that's been called "six
degrees of separation" — we can expect this legislation
to increase, dramatically, the number of citizens hauled before
the FEC on allegations of coordinated activity.
But if incumbent
protection is a strong motivator for passing ever more campaign-finance
regulation, perhaps the potential inconvenience to incumbents may
be enough to kill it. Candidates cannot be held liable for coordinated
activity, but they can be held liable for failing to report contributions.
And if the FEC determines that the candidate or a member of his
campaign knowingly and willfully failed to report a contribution
taking the form of coordinated activity, they may be subject to
criminal liability. What's more, every investigation of coordination
between citizens and candidates requires the FEC to determine what
the candidate and his agents knew and when they knew it. Now would
be a good time for each of the 435 members seeking reelection in
the House to ask himself how much in time and resources he wants
to spend answering questions at the FEC.
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