Letter to Senator McConnell Opposing Soft Money Restrictions in S. 1593

Letter to The Honorable Mitch McConnell Opposing Soft Money Restrictions in S. 1593

October 13, 1999

The Honorable Mitch McConnell
361-A Russell Senate Office Building
Washington, D.C. 20510

Dear Senator McConnell:

The ACLU is writing to express its opposition to the new, seemingly watered-down, McCain-Feingold bill. While it is true that the most obvious direct legislative attacks on issue advocacy have been removed from this bill, S.1593 continues to abridge the First Amendment rights of those who want to support party issue advocacy. The soft money restrictions proposed in S. 1593 are just another, less direct way to restrain issue advocacy and should therefore be opposed.

Concerns About Soft Money Restrictions in S. 1593

Soft money is funding that does not support express advocacy of the election or defeat of federal candidates, even though it may exert an attenuated influence on the outcome of a federal election. In other words, everything that is not hard money (express advocacy dollars) is soft money. Thus, soft money includes party funds and issue advocacy dollars.

Party soft money sustains primary political activity such as candidate recruitment, get-out-the vote drives and issue advertising. While candidate-focused contributions and expenditures and "express advocacy" can be subject to various restrictions or regulations, the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) held that all speech which does not "in express terms advocate the election or defeat of a clearly identified candidate" shall remain free from the same regulations that apply to hard money. "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." 424 U.S. at 45 (emphasis supplied).

Indeed, the unrestricted use of soft money by political parties and non-party organizations like labor unions has been invited by Buckley and acknowledged by the Supreme Court. In Colorado Republican Federal Campaign Committee v. Federal Election Commission, 116 S.Ct. 2309 (1996), the Court upheld unlimited "hard money" independent expenditures by political parties on behalf of their candidates.

In Colorado, the Brennan Center provided the Court extensive charts and graphs detailing large individual and corporate soft money contributions to the two major parties that they asserted threatened the integrity of the FECA's federal contribution restrictions. (Brief, p. 8) Notwithstanding this "evidence," the Court stated:

"We recognize that FECA permits individuals to contribute more money ($20,000) to a party than to a candidate ($1,000) or to other political committees ($5,000).... We also recognize that FECA permits unregulated "soft money" contributions to a party for certain activities, such as electing candidates for state office ... or for voter registration and "get out the vote" drives.... But the opportunity for corruption posed by these greater opportunities for contributions is, at best, attenuated." Id. at 2316.

Restricting soft money contributions alone will only force more dollars into other forms of speech beyond the reach of campaign finance laws. Soft money restrictions also give even more power to the media to influence voters' choices and to characterize candidate records. If S. 1593 is adopted, less money will be available to parties to assert the platform embraced by candidates and non-candidate party members. A soft money ban will not solve the problem that candidates now have, which is the dearth of hard dollars available to run competitive campaigns. Because contribution limits have remained unchanged since the 1970's, it is no wonder that other avenues (party soft money and issue advocacy soft money) have been exploited to influence the outcome of elections.

The goal of the Common Cause-type reform advocates is to find all sources of money that may conceivably influence the outcome of elections and place them under the control of the Federal Election Commission. It is not possible within our constitutional framework to limit and regulate all forms of political speech. Further, it seems rather arrogant that some members of Congress believe that the candidates and the press alone should have unlimited power to characterize the candidates and their records. The rest of us must be silent bystanders denied our First Amendment rights to have our voices amplified by funding issue and party speech. Disclosure, rather than limitation, of large soft money contributions to political parties, is the more appropriate and less restrictive alternative.

Rather than assess how the limit driven approach caused our current campaign finance woes, we are asked to believe the fiction that the incremental limits approach in S. 1593 is the solution. The ACLU is forced to agree with the League of Women Voters who wisely withdrew their support for this legislation (albeit for different reasons) and asserted, "?the overall system may actually be made worse by this bill."

Concerns About Potential Amendments

Issue Advocacy Restrictions

Because issue ads generated from party and non-party sources have provoked the consternation of many members of Congress and so-called reform groups, it is likely that Senators will have the opportunity to vote on amendments that restrict issue advocacy. We urge the Senate to reject restrictions on issue advocacy because they violate the Constitution.

The Supreme Court in Buckley v. Valeo well understood the risks that overly broad campaign finance regulations could pose to electoral democracy. The Court said, "[discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution." 424 U.S. at 14. The Court recognized that "the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest." 424 U.S. at 43. If any discussion of a candidate in the context of discussion of an issue rendered the speaker subject to campaign finance controls, the consequences for free discussion would be intolerable and speakers would be compelled "to hedge and trim," Id., quoting Thomas v. Collins, 323 U.S. 516, 535 (1945).

The Court fashioned the express advocacy doctrine to safeguard issue advocacy from campaign finance controls, even though such discussion might influence the outcome of an election. The doctrine provides a hard, bright-line, objective test that protects political speech and association by focusing solely on the content of the speaker's words, not the motive in the speaker's mind or the impact of the speaker's opinions, or the proximity to an election, or the phase of the moon. The doctrine marks the boundary of permissible regulation and frees issue advocacy from any permissible restraint.

The Buckley Court could not have been more clear about the need for that bright line test which focuses solely on the speaker's words and which is now an integral part of settled First Amendment doctrine. It was designed to protect issue discussion and advocacy by allowing independent groups of citizens to comment on and criticize the performance of elected officials without becoming ensnared in the federal campaign finance laws. And it permits issue discussion to go forward at the time that it is most vital in a democracy: during an election season.

Although not as sweeping as other proposals, we believe that the Snowe-Jeffords amendment restricting issue advocacy should be opposed for the reasons stated above.

Specific Problems with the Shays-Meehan Substitute

It is our understanding the Sen. Tom Daschle (D, SD) and Sen. Robert Torricelli (D, NJ) will offer the House passed version of Shays-Meehan, H..R. 417. We urge Senators to vote against this measure. Shays-Meehan has a chilling affect on issue group speech that is essential in a democracy. H.R. 417 contains the harshest and most unconstitutional controls on issue advocacy groups.

• This bill contains a permanent year-round restriction on issue advocacy achieved through redefining express advocacy in an unconstitutionally vague and over-broad manner. The Supreme Court has held that only express advocacy, narrowly defined, can be subject to campaign finance controls. The key to the existing definition of express advocacy is the inclusion of an explicit directive to vote for or vote against a candidate. Minus the explicit directive or so-called "bright-line" test, what will constitute express advocacy will be in the eye of the beholder, in this case the Federal Election Commission (FEC). Few non-profit issue groups will want to risk their tax status or incur legal expenses to engage in speech that could be interpreted by the FEC to have an influence on the outcome of an election.
  
• It requires a two-month black-out on all television and radio issue advertising before the primary and general elections. The bill's statutory limitations on issue advocacy would force groups that now engage in issue advocacy -- 501(c)(3)s and 501(c)(4)s -- to create new institutional entities - PACs -- in order to "legally" speak within 60 days before an election. Groups would also be forced to disclose or identify all contributors to the new PAC. For organizations like the ACLU, this will mean individuals will stop contributing rather than risk publicity about their gift. The opportunities that donors now have to contribute anonymously to our efforts to highlight issues during elections would be eliminated. (This is a special concern for groups that advocate unpopular or divisive causes. See NAACP v. Alabama 357 U.S. 449(1958).) For many non-profits, being forced to establish PACs entails a significant and costly burden, one that can change the very character of the organization. Separate accounting procedures, new legal compliance costs and separate administrative processes would be imposed on these groups -- a high price to exercise their First Amendment rights to comment on candidate records. It is very likely that some groups will remain silent rather than risk violating this new requirement or absorbing the attendant cost of compliance. The only entities that will be able to characterize a candidate's record on radio and television during this 60-day period will be the candidates, PACs and the media. Yet, the period when non-PAC issue groups are locked out is the very time when everyone it paying attention! Further, members of Congress need only wait until the last 60 days before an election (as it often does now) to vote for legislation or engage in controversial behavior, so that their actions are beyond the reach of public comment and, therefore, effectively immune from citizen criticism.
  
• Shays-Meehan contains a misleading exception for candidate voting records. The voting records that would be permitted under this new statute would be stripped of any advocacy-like commentary. For example, depending on its wording, the ACLU might be banned from distributing a voting guide that highlights members of Congress who have a 100 percent ACLU voting records as members of an "ACLU Honor Role." Unless the ACLU chose to create a PAC to publish such guides, we would be barred by this statute even though we do not expressly advocate the election or defeat of a candidate. Courts have clearly held that such a result is an unacceptable or unconstitutional restraint on issue-oriented speech.
• It redefines "expenditure," "contribution" and "coordination with a candidate" so that heretofore legal and constitutionally protected activities of issue advocacy groups would become illegal. Let's say, for example, that the ACLU decided to place an ad lauding, by name, Representatives or Senators for the effective advocacy of constitutional campaign finance reform. That ad would be counted as express advocacy on behalf of the named Congresspersons under H.R. 417 and would be effectively prohibited. If the ACLU checked with key congressional offices to determine when this reform measure was coming to the floor so the placement of the ad would be timely - that would be an "expenditure" counted as a "contribution" to the named officials and it would be deemed "coordinated with the candidate." An expanded definition of coordination chills legal and appropriate issue group-candidate discussion.

If these very same restrictions outlined above were imposed on the media, we would have a national First Amendment crisis of huge proportions. Yet, newspapers such as the Washington Post, the New York Times, the Los Angeles Times and other media outlets relentlessly editorialize in favor of Shays-Meehan -- a proposal that blatantly chills free speech rights of others, but not their own. Let's suppose Congress constrained editorial boards in a similar fashion. Any time news outlets ran an editorial -- 60 days before an election or otherwise -- that mentioned the name of a candidate, the law now required them to disclose the author of the editorial, the amount of money spent to distribute the editorial and the names of the owners of the newspaper to the FEC, or risk prosecution. The media powerhouses would engage in a frenzy of protest, and you could count on the ACLU challenging such restraints on free speech. Yet, the press has as much if not more influence on the outcome of elections as all issue advocacy groups combined. Some voters are more likely go to the polls with their newspaper's candidate endorsements wrapped under their arm than carrying other issue group literature into the voting booth.

The Shays-Meehan bill contains misguided and unconstitutional restrictions on issue group speech and only works to further empower the media to influence the outcome of elections. None of the proposals seek to regulate the ability of the media -- print, electronic, broadcast or cable -- to exercise its enormous power to direct news coverage and editorialize in favor or against candidates. This would be clearly unconstitutional. It is equally unconstitutional to effectively chill and eliminate citizen group advocacy. It is scandalous that Congress would muzzle issue groups in such a fashion.

Finally, the ACLU has to be especially watchful of the Federal Elections Commission because it is a federal agency whose primary purpose is to monitor political speech. If Congress gives the FEC the authority to decide what constitutes "true" issue advocacy versus "sham" issue advocacy, the FEC is then empowered to become "Big Brother" of the worst kind. Already, it has been, far too often, an agency in the business of investigating and prosecuting political speech. The FEC would have to develop a huge apparatus that would be in the full-time business of determining which communications are considered unlawful "electioneering" by citizens and non-profit groups. Further, Shays-Meehan contains harsh penalties for failure to comply with the new laws.

Restrictions on the First Amendment Rights of Legal Permanent Residents (LPRs)

Lawful permanent residents are stakeholders in our society. They send their children to our schools, pay taxes on their worldwide income, and like citizens, must register for the draft and serve if the draft is re-instituted. In fact, nearly 20,000 lawful permanent residents now serve voluntarily in the military. By no stretch of the imagination is their money "foreign money." Lawful permanent residents must reside in the U.S. or they forfeit their green cards and right to remain. Moreover, the courts have repeatedly held that non-citizens in the United States have First Amendment rights, and this should include the right to make campaign contributions.

The Shays-Meehan campaign finance bill was amended to bar campaign contributions and expenditures from lawful permanent residents. It virtually guarantees that candidates and their campaign organizations will discriminate against new Americans because it threatens them with substantial penalties if they accept a donation they "should have known" came from a non-citizen. We urge you to reject any amendment to the McCain-Feingold bill that would bar such contributions.

Internet Political Speech Restrictions

We urge the Senate to support an amendment by Senator Robert Bennett (R, UT) that would prohibit the FEC from imposing restrictions on Internet commentary on candidates and their positions on issues. Attached is an ACLU press release that illustrates the draconian nature of FEC restrictions on free expression on the Internet.

Our Proposed Solutions

The ACLU believes that there is a less drastic and constitutionally offensive way to achieve reform: public financing.

If you believe that the public policy process is distorted by candidates' growing dependence on large contributions then you should help qualified candidates mount competitive campaigns - especially if they lack personal wealth or cannot privately raise large sums of money. Difficult questions have to be resolved about how to deal with soft money and independent expenditures. Some of these outcomes are constrained by constitutionally based court decisions.

But notwithstanding the nay-sayers who say public financing is dead on arrival, we should remember that we once had a system where private citizens and political parties printed their own ballots. It later became clear that to protect the integrity of the electoral process ballots had to be printed and paid for by the government. For the same reason the public treasury pays for voting machines, polling booths and registrars and the salaries of elected officials. In conclusion, we take it as a fundamental premise that elections are a public not a private process - a process at the very heart of democracy. If we are fed up with a system that allows too much private influence and personal and corporate wealth to prevail then we should complete the task by making public elections publicly financed.

Sincerely,
Laura W. Murphy
Director, Washington Office

Gregory Nojeim
Legislative Counsel

Joel Gora
Professor of Law,
Brooklyn Law School And Counsel to the ACLU

cc: Members of the United States Senate