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Johnson is legislative director for the National Right to Life Committee
(NRLC). Their campaign-finance-reform materials can be
found here.
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. (A good deal of ongoing litigation in defense of free speech
is now conducted by the
James Madison Center for Free Speech, for which Mr. Bopp is
general counsel.)
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 terms. Many news
stories contain blatant white-hat/black-hat terminology — the
bill is opposed by "special-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.
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