“Campaign Reform” Suppresses Free Speech

It seems increasingly obvious that the so-called “campaign reform” bills before the US Congress are squarely aimed at cutting the pro-life movement off at the knees. The Shays-Meehan bill (HR419) will effectively suppress most of the activities of the pro-life movement that have made it an influence in the United States.

To understand the basic mechanism of the damage that will be done by this bill, we must understand the difference between issue advocacy and express advocacy. Issue advocacy is commonly known as lobbying. The pro-life movement is a perfect example of issue advocacy. Our issue is the ultimate protection of the unborn child. Anything that we do in speech or in print that promotes this ultimate goal is issue advocacy. The First Amendment guarantees freedom of speech and hence guarantees every citizen the right to discuss such issues.

Express Advocacy has been clearly defined on many occasions by the US Supreme Court in cases such as: FEC v. Massachusetts Citizens for Life 1986 and Buckley v. Valeo 1976. The Court has stated that it extends only to communications “containing express words of advocacy of election or defeat, such as….vote for, elect, support, cast your ballot for, Smith for Congress, Vote Against, defeat, reject.” The Supreme Court calls express advocacy a “bright line.” It has stated that it cannot be removed or changed by an act of congress, because it is basically rooted in the First Amendment itself.

Let’s take two candidates. One favors a ban on Partial-Birth abortion, the other opposes. If a particular pro-life group publicizes the fact that the one candidate opposes such a ban, this can influence some people’s votes for or against this candidate. The Federal Election Commission’s argument has been that such an effort would be express advocacy. The Supreme Court, however, has repeatedly struck this kind of reasoning down, ruling that such candidate-specific issue advocacy enjoys the highest degree of First Amendment protection. The court has specifically rejected the idea that such a communication should be evaluated on a third party’s judgment regarding the motivation or intent of the communication, or on the basis of somebody’s judgment about how the message was understood by some who receive it. Nevertheless, such reasoning permeates the Shays-Meehan bill.

Using such subjective judgment, relating to the “intent” of some communication, this bill would generally prohibit pro-life groups from paying for communications to the public at any time of the year when a federal regulator might judge it to be “for the purpose of influencing a federal election.”

A pro-life group typically will publish, prior to an election in its newsletter, the results of candidate surveys. These typically involve a listing of candidates, their voting records and a series of questions which candidates answer. Such newsletters are not considered by the Supreme Court to be express advocacy. Shays-Meehan, if adopted and enforced, would completely wipe out a pro-life group’s ability to publish such records of political candidates.

The Supreme Court has said, “So long as persons and groups avoid 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 Shays-Meehan, however, they are not free to do this. In fact, a typical pro-life group may not pay for an ad that even mentions the candidate’s name on the radio or TV for sixty days before a primary or a general election.

But for sixty days? Actually, it extends through any time of the year. Such a publication dealing with voting records or positions of candidates would be an illegal corporate campaign expenditure at any time of the year, unless a complex of interlocking conditions would be met – conditions simply impossible for the overwhelming majority of pro-life groups to meet.

Political Action Committees would still be allowed some latitude, but the Supreme Court has enumerated at length the very substantial limitations and burdens that apply to raising and spending political action committee funds under the Federal Election Campaign Act. PAC restrictions on fundraising and expenditures would be tightened still further. The effect on PAC’s would sharply reduce any type of commentary by them on candidates. Issue Advocacy, e.g. campaigning for a Partial-Birth abortion ban, would be literally impossible under Shays-Meehan, even if no candidate’s name would be mentioned. The reason is the bill says that “anything of value, provided by a person…for the purpose of influencing a federal election…is express advocacy.” Therefore, merely taking out an ad discussing partial-birth abortion could be construed by the pro-abortion candidate to be of value to the pro-life candidate and hence a violation of federal law.

Shays-Meehan sharply forbids “coordination with a candidate.” If a pro-life group called a senatorial candidate within sixty days of election to ask him when his birthday was, that would be a violation of federal law, because it would be communication with the candidate and that is forbidden by Shays-Meehan.

A section of this bill would also force Right to Life groups to forfeit their right to freely associate with legitimate providers of services if the candidate also was using the provider. This would include: professional services, polling, media advice, fundraising, campaign research, direct mail, etc., even though there was no connection between the candidate’s use and the pro-life group’s use of such a provider.

Summary

Shays-Meehan would obliterate the distinction between issue advocacy and express advocacy. It would effectively nullify the rights of pro-life groups to communicate to the public any information about candidates’ activities, statements and votes. The people who are still allowed to publicize such actions would be political parties and candidates, the sharply limited and regulated PAC’s and all of the liberal media. It wouldn’t just handicap the pro-life movement. It would go a long way toward completely destroying any influence that our groups have in the public arena. Clearly, the pro-life movement is squarely in its crosshairs.

 

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