Testimony of ACLU President Nadine Strossen Before the House Judiciary Subcommittee on the Constitutional Issues of Campaign Finance Reform Legislation

AMERICAN CIVIL LIBERTIES UNION Statement on the Constitutional Issues
Raised by Recent Campaign Finance Legislation
Restricting Freedom of Speech

Before the House Committee on the Judiciary
Subcommittee on the Constitution

Presented by Nadine Strossen,
President of the American Civil Liberties Union

June 12, 2001

Good afternoon. Chairman Chabot, Members of the Committee, my name is Nadine Strossen, and I am the President of the American Civil Liberties Union. I am also a Professor of Law at New York Law School, where I teach Constitutional Law. I am here on behalf of the American Civil Liberties Union, a non-profit corporation that is devoted to the advancement of civil rights and civil liberties. For over 80 years, the ACLU has been a nation-wide, non-profit, non-partisan membership organization of over 300,000 members devoted to protecting and advancing the rights and the principles of freedom and individual liberty set forth in the Bill of Rights and the Constitution. The ACLU and the ACLU Foundation are 501 (c)4 and 501 (c)3 respectively. We take no federal funds and we are financed through individual gifts, membership dues and/or foundation grants.

For almost 30 years, the ACLU has been at the forefront of the effort to insure that campaign finance reform is consistent with the free speech and democratic values embodied in the First Amendment to the Constitution. For that entire period of time, we have insisted that campaign finance laws must serve two vital goals: protecting freedom of political speech and association and expanding political opportunity and participation. Unfortunately, the McCain-Feingold bill (S. 27, the Bipartisan Campaign Reform Act of 2001) recently passed by the Senate, and its Shays-Meehan counterpart (H.R. 380, the Bipartisan Campaign Reform Act of 2001) introduced in the House earlier this year, are fundamentally inconsistent with these goals. Rather, they are destructive distractions from the serious business of meaningful campaign finance reform which entails easing, not tightening, the legislative controls on the financing of our political campaigns.

Contrary to what many think, the ACLU supports a comprehensive program of public financing of federal campaigns, consistent with the First Amendment. Meaningful campaign finance reform would develop comprehensive programs for providing public resources, benefits and support for all qualified federal political candidates. Because 25 years of experience have shown that limits on political funding simply won't work, constitutionally or practically, it is time to seek a more First Amendment-friendly way to expand political opportunity. As the ACLU has long argued, public financing for all qualified candidates is an option that provides the necessary support for candidacies without the imposition of burdensome and unconstitutional limits and restraints. But instead of being able to press this positive agenda, we must use our time today instead to condemn the ill-conceived provisions of McCain-Feingold and Shays-Meehan that are non-remedies to our national campaign finance problems and are wholly at odds with the essence of the First Amendment.

Simply put, these bills are a recipe for political repression because they egregiously violate longstanding rights of free speech and freedom of association in several ways:

(1) These bills unconstitutionally stifle issue advocacy. They drive a wedge between the people and their elected representatives by throttling the various advocacy groups and political parties that amplify the voices of average citizens. These bills achieve these egregious results by obliterating the clear and clear constitutional dividing lines, established by 25 years of judicial precedent -- between "express advocacy" of electoral outcomes, which can be regulated, and issue advocacy involving electoral candidates and incumbent politicians, which cannot be subject to regulatory controls.

(2) These bills penalize constitutionally protected contacts that groups and individuals may have with candidates and elected officials. They would suppress effective criticism of government by significant organized entities -- labor unions, not-for-profit corporations, and business corporations -- with one exception: media corporations and conglomerates would be exempt from the bills' Draconian controls.

(3) These bills severely threaten the continued vitality of our political parties. Parties are not merely vehicles that help amplify the voices of their party representatives, they are also issue groups that engage in voter registration, voter education, issue and platform development and the like. The assertion that corporate and union contributions have a "corrupting influence, and that somehow is an adequate justification for the ban of such contributions to political parties is not supported by First Amendment jurisprudence.

These three major flaws in the bills will be addressed in turn. But in the meantime, this Committee should make no mistake about the radical agenda that these bills promote and about the drastic departure from settled First Amendment doctrine that they represent. It is the ACLU's hope that the Subcommittee on the Constitution will educate its colleagues in the House of Representatives about the grave constitutional defects contained in McCain-Feingold and Shays-Meehan.

I. These Bills Unconstitutionally Constrain Robust Citizen Speech (Issue Advocacy) Prior to Elections

As Virginia Woolf stated, "If we don't believe in freedom of expression for people we despise, we don't believe in it at all." Apparently, the supporters of McCain-Feingold and Shays-Meehan must despise any form of issue advocacy -- especially that which is critical of candidates -- that has the audacity to discuss the actions or proposals of public officials and candidates for public office, or even mention their name, because they have gone to such lengths to suppress it.

With minor differences in phrasing and coverage, the primary target of both bills is so-called "electioneering communications." An electioneering communication is any cable or satellite communication that refers to a clearly identified federal candidate and is made within 60 days of a general, special or runoff election or 30 days of a primary, convention or caucus, and is made to an audience that includes members of the electorate. It must be remembered that up to now such a communication has been absolutely free of any government regulation (unless it came within the Supreme Court's bright line test that it "expressly advocated" the election or defeat of such a candidate). Now, the mere mention of a candidate triggers the statute. Once that happens the consequences are extreme: non-profit corporations, labor unions and trade associations are barred by the legislation from making such communications; individuals and associations may make them but are then subject to burdensome registration, reporting and disclosure requirements.

(The distinction between broadcast communication media and other media bears no relevance to the only recognized justification for campaign finance limitations or prohibitions, namely, the concern with corruption. The legislative goal is transparent: blatant censorship of what incumbents feel is the most effective medium of communication used to criticize them. But suppressing speech in one medium while permitting it in another is not a lesser form of censorship, just a different form.).

These prohibitions and restraints are accomplished in the Senate bill (S. 27) by creating this new legal category -- labeled "electioneering communication" -- and simply declaring that any communication that meets the new criteria comes within that new category. The House bill (H.R. 380) achieves the same result by a constitutional sleight of hand that gerrymanders the established boundary lines of the "express advocacy" doctrine by simply declaring, wholly in the face of clearly established law, that any broadcast mention of a federal candidate within the time and temporal stipulations comes within that definition. (The House bill also unconstitutionally and dramatically expands the definition of "express advocacy" by having it include any communication in any medium at any time of the year "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." No direct link to electoral advocacy is required.). These new unconstitutional definitions bring with them the whole panoply of FECA regulations and restrictions, applicable to any individual or organization that comes within the new overbroad and vague guidelines.

Each bill has a "sham" safe harbor for issue advocacy. The Senate bill allows certain non-profits to make "electioneering communications" if they are not "targeted" to voters in the State where the "referred to" candidate is up for election. In other words, you can't criticize the McCain-Feingold bill in Arizona or Wisconsin if either sponsor is up for election; and perhaps in the entire country when Senator McCain is running for President. Under this "safe harbor" a group can urge citizens in Colorado to write a letter to a Senator from California, but if they urge people to write their own Senator -- who happens to be an incumbent up for reelection -- they could go to jail. The House bill would permit issue organizations to publish and disseminate voting record and guides only if they are "cleansed" of their editorial content.

These bills in effect silence issue advocacy by requiring accelerated and expanded disclosure of the funding of such advocacy, by penalizing issue advocacy as a prohibited contribution if it is "coordinated" in the loosest sense of that term with a federal candidate. They also ban issue advocacy all but completely if it is sponsored by a labor union, a corporation (including such non-profit corporations organized to advance a particular cause like the ACLU or the National Right to Life Committee or Planned Parenthood unless they are willing to obey the government's stringent new rules) or other similar organized entity. Even an individual or organization that receives financial support from prohibited sources such as corporations, unions, or wealthy individuals, are barred from engaging in "electioneering communications."

These bills would impose these limitations on communications about issues regardless of whether the communication "expressly advocates" the election or defeat of a particular candidate. Nor is there any requirement of even showing a partisan purpose or intent. Instead, during 60 days before a primary or 30 days before a general election, any such communication is subject to the new controls simply by identifying any person who is a federal candidate, which will often be an incumbent politician.

During the floor debate of the McCain-Feingold bill, a majority of the Senate realized that the restrictions on issue advocacy discussed above would probably be struck down by the courts on constitutional grounds. Thus, they adopted the Specter Amendment, which would be a year-round ban on 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 candidates." This vague and over-broad "back-up" to Snowe-Jeffords is also unconstitutional. If the ACLU finances a broadcast ad criticizing a Democrat for supporting the constitutional amendment banning flag desecration, is it automatically telling voters that they should support the Democratic candidate's Republican opponent? Absolutely not! Congress cannot, and should not attempt to design a statute to ban or suppress issue groups criticism or praise of them by name or likeness. Whether such ban is year round or before every single primary and general election, such proposals are nothing more than attempt to stifle free speech.

A. These Issue Advocacy Restrictions Would Have Adverse, Real-Life Consequences

Had these provisions been law during the 2000 elections, for example, they would have effectively silenced messages from issue organizations across the entire political spectrum. The NAACP ads -- financed by a sole anonymous donor -- vigorously highlighting Governor Bush's failure to endorse hate crimes legislation is a classic example of robust and uninhibited public debate about the qualifications and actions of political officials. By the same token, when New York Mayor Rudy Giuliani was a candidate for the United States Senate, any broadcast criticism of his record on police brutality as mayor of New York undertaken by the New York Civil Liberties Union would have subjected that organization to the risk of severe legal sanctions and punishment under these proposals. These bills would have prevented the National Right to Life Committee from questioning the constitutionality of the McCain-Feingold bill during all the months when Senator McCain was a candidate for the Republican presidential nomination. The Supreme Court in cases from New York Times Co. v. Sullivan, 376 U.S. 254 (1964) through Buckley v. Valeo, 424 U.S. 1 (1976) to California Democratic Party v. Jones, 120 S.Ct. 2402 (2000) have repeatedly protected full and vigorous debate during an election season. The provisions of the pending bills would silence that debate.

Second, the ban on "electioneering communications" or the ipse dixit treatment of them as "express advocacy" would also stifle legislative advocacy on pending bills. The blackout periods coincide with crucial legislative periods, including the months of September and October as well as months during the Spring. During Presidential years, the blackout periods would include the entire presidential primary season, conceivably right up through the August national nominating conventions. For example, had this provision been law in 2000, for most of the year it would have been illegal for the ACLU or the National Right to Life Committee to criticize the "McCain-Feingold" bill as an example of unconstitutional campaign finance legislation or to urge elected officials to oppose that bill. The only time the blackout ban would be lifted would be in August, when many Americans are on vacation!

During the 106th Congress, for example, the ACLU identified at least ten major controversial bills that it worked on which were debated in either chamber of the Congress or in committee meetings within 60 days prior to the November 2000 general election. The various legislative issues cover an enormous range of critical issues, including freedom of speech (imposing internet filtering in schools and libraries), reproductive rights (restricting abortion in international family planning; attempting to define "human being" in the "born alive" bill and prohibiting funding of "morning-after pill" to minors on school premises), hate crimes (expanding the federal hate crimes law), privacy (restricting law enforcement use of electronic surveillance and enhancing privacy protections for individuals and preventing fraudulent misuse of Social Security numbers), criminal justice (providing grants to states to process backlog of DNA evidence), and secret evidence (making it harder for the INS to use secret evidence to deport immigrants or to deny them asylum). This pattern of legislating close to primary and general elections is repeated during the waning days of every legislative session. For example, Congress is always in a race to enact appropriations bills before the beginning of the federal fiscal year on October 1st. These bills, with their innumerable social policy amendments, are prime examples of legislation that will undoubtedly be debated in the last 60 days before a general election. Under the proposed campaign finance bills, Congress -- merely by adjusting the calendar -- could make controversial legislation immune from citizen criticism if such criticism dared to mention bill sponsors or supporters by name.

B. Why These Limitations Run Afoul of the First Amendment

Under the reasoning of Buckley v. Valeo and all the cases which have followed suit, the funding of any public speech that falls short of such "express advocacy" is wholly immune from campaign finance laws. Speech which comments on, criticizes or praises, applauds or condemns the public records and actions of public officials and political candidates -- even though it mentions and discusses candidates, and even though it occurs during an election year or even an election season -- is entirely protected by the First Amendment.

The Court made that crystal clear in Buckley when it fashioned the express advocacy doctrine. That doctrine holds that the FECA can constitutionally regulate only "communications that in express terms advocate the election or defeat of a clearly identified candidate," and include "explicit words of advocacy of election or defeat" 424 U.S. at 44, 45. The Court developed that doctrine because it was greatly concerned that giving a broad scope to FECA, and allowing it to control the funding of all discussion of policy and issues that even mentioned a public official or political candidate, would improperly deter and penalize vital criticism of government because speakers would fear running afoul of the FECA's prohibitions. "The distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical operation. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and government actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest." Id. at 42-43. If any reference to a candidate in the context of advocacy of an issue rendered the speech or the speaker subject to campaign finance controls, the consequences for the First Amendment would be intolerable.

Issue advocacy is freed from government control through a number of other doctrines the courts have recognized as well. First, the constitutional right to engage in unfettered issue advocacy is not limited to individuals or cause organizations. Business corporations and unions can speak publicly and without limit on anything short of express advocacy of a candidate's election. See First National Bank of Boston v. Bellotti 435 U. S. 765 (1978). (Of course, media corporations can speak publicly and without limitation on any subject, including editorial endorsements of the election or defeat of candidates, i.e. "express advocacy," see Mills v. Alabama, 384 U.S. 214 (1966).)

Contributions to issue advocacy campaigns cannot be limited in any way, either. See Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). Finally, issue advocacy may not even be subject to registration and disclosure. See McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Buckley v. Valeo, 519 F.2d 821, 843-44 (1975) (holding unconstitutional a portion of the FECA which required reporting and disclosure by issue organizations that publicized any voting record or other information "referring to a candidate.") The rationale for these principles is not just that these various groups have a right to speak, but also that the public has a right to know and a need to hear what they have to say. This freedom is essential to fostering an informed electorate capable of governing its own affairs.

Thus, no limits, no forced disclosure, no forms, no filings, no controls should inhibit any individual's or group's ability to support or oppose a tax cut, to argue for more or less regulation of tobacco, to support or oppose abortion, flag burning, campaign finance reform and to discuss the stands of candidates on those issues. That freedom must be preserved whether the speaker is a political party, an issue organization, a labor union, a corporation, a foundation, a newspaper or an individual. That is all protected "issue advocacy," and the money that funds it is all, in effect, "soft money." Those who advocate government controls on what they call "sham" or "phony" or "so-called" issue ads, and those who advocate outlawing or severely restricting "soft money" should realize how broad their proposals would sweep and how much First Amendment law they would run afoul of.

Finally, it is no answer to these principled objections that these flawed bills would permit certain non-profit organizations to sponsor "electioneering communications" if they in effect created a Political Action Committee to fund those messages and disclosed the identities of their significant contributors and supporters. Under governing constitutional case law, groups like the ACLU and others cannot be made to jump through the government's hoops in order to criticize the government's policies and those who make them. In addition, most non-profits would be unwilling to risk their tax status or incur legal expenses by engaging in what the IRS might view as partisan communications. Moreover, the groups would still be barred from using organizational or institutional resources for any such communications. They would have to rely solely on individual supporters, whose names would have to be disclosed, with the concomitant threat to the right of privacy and the right to contribute anonymously to controversial organizations that was upheld in landmark cases such as NAACP v. Alabama, 357 U.S. 449 (1958). This holding guaranteed the opportunities that donors now have to contribute anonymously -- a real concern when a cause is unpopular or divisive.

II. The Bills Chill and Unconstitutionally Regulate Citizen and Issue Group Contact with Candidates and Elected Officials

The second systemic defect in these bill is their grossly expanded concept of coordinated activity between politicians and citizens groups. Such "coordination" then taints and disables any later commentary by that citizen group about that politician. By treating all but the most insignificant contacts between candidates and citizens as potential campaign "coordination," the bills render any subsequent action which impacts those politicians as a regulated or prohibited "contribution" or "expenditure" to those candidates' campaigns. These provisions violate established principles of freedom of speech and association.

Under existing law, contact coordination between a candidate or campaign and an outside group can be regulated as coordinated activity only where the group takes some public action at the request or suggestion of the candidate or his representatives, i.e., where the candidate is the driving force behind the outside group's action. See Federal Election Commission v. Christian Coalition 52 F. Supp. 2d 45 (D. D.C. 1999). Under Shays-Meehan, however, the definition of coordination is expanded in dramatic ways with severe consequences, thereby prohibiting certain kinds of contact with candidates. A coordinated activity can be found whenever a group or individual provides "anything of value in connection with a Federal candidate's election" where that person or group has interacted with the candidate then or in the past in a number of ways. These include, for example, instances which the outside person or group has "previously participated in discussions" with the candidate or their representative, "about the candidate's campaign strategy...including a discussion about...message..."

The Shays-Meehan bill thus imposes a year-round prohibition on all communications that are deemed "of value" to a federal candidate. The bill wrongly asserts that issue groups are "coordinating" if they merely discuss elements of the lawmaker's message with the lawmaker or his or her staff anytime during a two-year election cycle. For example, if a veteran's group suggests to a candidate how best to talk about the flag amendment in order to win the hearts and minds of voters, the group then can't run ads in Senator McCain's state praising him for protecting the flag. (The final version of the McCain-Feingold bill, though narrower than the Shays-Meehan approach, still deems as coordination any communication made by any person or group -- whether or not is constitutes express advocacy -- made "in connection with a candidate's" election or "pursuant to any general... understanding with" with a candidate.)

Once such so-called coordination is established it can trigger a total ban on issuing any communication to the public relating to the candidate by deeming such communication as an illegal corporate contribution (or subjecting it to burdensome regulation if made by an individual). These rules can act as a continuing prior restraint, which bars the individual or group from engaging in core First Amendment speech for the lawmaker's entire term of office. Even if such an organization has a connected PAC, it can no longer engage in any independent expenditure affecting the lawmaker because by merely speaking to the candidate or his or her staff it may have engaged in illegal "coordination." Here again, the bills attempt to impose another gag rule on issue advocacy organizations.

Translated into the way in which citizen advocacy groups work, this means that a group cannot urge a candidate to make a particular proposal a part of the candidate's platform if the group subsequently plans to engage in independent advocacy on that issue. Likewise, a group like the National Rifle Association could not discuss a gun control vote or position with a Representative or Senator if the NRA will subsequently produce a box score that praises or criticizes that official. Similar to the ban on "coordination" of "electioneering activity" resulting in a long blackout period when an outside group or individual can be blocked from broadcasting information about a candidate, the ban on coordination of "anything of value" can operate month in and month out throughout the entire two- or six-year term of office of the pertinent politician. That is why the AFL-CIO, among other groups, is so concerned about the treacherous sweep of the anti-coordination rules. See "Futile Labor: Why Are The Unions Against McCain-Feingold?" The New Republic, March 12, 2001, pp. 14-16.

Thus, these coordination rules will wreak havoc on the ability of the representatives of unions, corporations, non-profits and even citizen groups to interact in important ways with elected representatives for fear that the taint of coordination will silence the voices of those groups in the future. The First Amendment is designed to encourage and foster such face-to-face discussions of government and politics, see Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), not to drive a wedge between the people and their elected representatives.

III. The Bills Unconstitutionally Interfere with the First Amendment Rights of Political Parties

In addition to their disruptive and unconstitutional effect on issue groups and issue advocacy, these bills also would have a disruptive -- if not destructive -- effect on national political parties in America by outlawing certain sources of funding that support party issue advocacy work. If the constraints embodied in these proposals become law, parties will have to rely solely on hard money contributions for their continued existence. The justification for these limitations are the very similar ones used to restrict issue advocacy and, in fact, make it virtually impossible for parties to continue to engage in issue advocacy work such as grassroots educational activity, platform development, candidate recruitment and get-out-the-vote efforts.

A. The Bills Represent a Three-Pronged Attack on Political Parties

First, the bills completely eliminate all "soft money" funding for all national political parties and all of their constituent committees and component parts. This means that no corporate, union or large individual contributions would be permitted. Further, current federal law would be repealed, because these bills impose restrictions on the ability of national parties to share money with state and local parties. The bills regulate all state and local political parties and ban them from raising or spending soft money for any "Federal election activity" that has any bearing on a federal election. Under these bills, all of the funding for the bulk of party issue advocacy