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Campaign Finance Reform: Silencing Freedom...

Wednesday, July 11, 2001

Campaign finance reform-especially in the guise of S.27, the McCain-Feingold legislation that passed the Senate in April-is a direct killing attack on every individual American`s First Amendment right to use political speech to protect the entire Bill of Rights.

Campaign finance reform is not about big dollars influencing elections. It`s not about crooked politicians and a tainted process. It's not about corruption. It is about who will control information to the electorate; with the big media and incumbent politicians having a total lock on speech, ideas and political thought in America.

It is about a television/radio blackout of truth, opinions and beliefs of individual Americans who pool their power by choosing to belong to organizations such as NRA-which gives them the collective clout to reach millions of voters through paid issue advocacy.

In short, campaign finance reform would put the NRA out of business when it comes to impacting Federal elections and public policy.

If NRA cannot do its job in politics, then open season on the Second Amendment will follow.

Real understanding of any legislation is only found in the black letter of the law. After 11 days of debate, with scores of amendments considered and many accepted, the black letter of the McCain-Feingold Act demands:

  • That all violations of the legislation are criminal offenses calling for Federal prison sentences and steep fines. Such violations in S.27 run the gamut from numerous possible filing and paperwork errors--to placing television and radio "issue" advertisements that don`t meet a government standard--to having normal lobbying discussions construed as illegal campaign "coordination" activities. Any of this could mean prison terms for officials of organizations such as the NRA and their employees simply for attempting to exercise the groups` collective First Amendment rights.
  • A ban on broadcast, cable or satellite television and radio issue advertising by groups such as the NRA. The electronic media blackout would be enforced 60 days before a general election and 30 days before a primary election (or runoff) if the government determined that the advertising content "refers" to a Federal candidate.
  • Massive reporting and notification of "disbursements" and "expenditures" by lobbying organizations such as NRA. This requirement is so burdensome that during a hot political year thousands of reports would have to be filed--literally by the minute on the minute. For some issue organizations, the reporting requirements alone could be impossible to meet. Again, there is criminal liability for employees of such issue organizations who fail to prepare accurate reports on exacting deadline.
  • Meeting legal hurdles--under the guise of avoiding "coordination" with candidates--for organizations using corporate or member-donated funds. These new hurdles would make "independent expenditures" all but impossible--effectively killing the real power in grassroots political campaigns. If the government were to declare that door-to-door campaigning, phone banks, get-out-the-vote rallies or even posting yard signs were even vaguely "coordinated" with a candidate or political party, those activities could be declared illegal, making these expenditures subject to criminal prosecution.

These are just the more egregious parts of the legislation in terms of shutting grassroots lobby groups out of the electoral and political processes.

The fight against McCain-Feingold was led in the U.S. Senate by Kentucky Republican Mitch McConnell, who called the legislation a "target rich environment for challenge in court." Soon after Senate passage, Sen. McConnell met with a free speech coalition of which NRA is a member. Included are the American Civil Liberties Union, the Christian Coalition, the Business-Industry Political Action Committee, the U.S. Chamber of Commerce, the National Right to Life Committee, the National Ass`n of Manufacturers and the National Rural Letter Carriers Ass`n. This fast-growing confederation of groups is pooling talent and resources to fight McCain-Feingold on Capitol Hill and in the courts. Unions, such as the AFL-CIO, face the same harsh "issue advocacy" restrictions and oppose S.27.

Literally every nonprofit lobbying institution in the nation is affected in the same way. S.27 will silence all of the voices of all of the individuals who support virtually every cause during elections through organized "issue advocacy." With the potential opposition of every lobbying organization in the nation, how did McCain-Feingold ever see the light of day on the floor of the Senate?

S.27 will silence all of the voices of all of the individuals who support virtually every cause during elections through organized "issue advocacy."

First, John McCain (R-Ariz.) emerged from the last Presidential election as the candidate of choice for the national media. They are his following--his fawning constituency.

Given to savoring that power and a pulpit that reaches a majority of the nation, free of charge, every night and every morning, on the tube and in print, McCain has emerged as a media-styled super-power.

Which leads to the second reason campaign finance reform eclipsed everything in the Senate for nearly two weeks in March and April--the 50-50 split between Democrats and Republicans and the "power-sharing" agreement that resulted.

In the Senate, power-sharing means that nothing gets done without consensus. But in reality, the Democrats-who are far more aggressive-are often running things, especially if they can get the super-senator to swing their way.

McCain was led down a primrose path by a Senate Democratic leadership that is doing all it can to keep him beholden. In reality, it is pushing to derail President George W. Bush`s chance for a second term. And more importantly, it wants a Senate majority of radical Democrats. And that would prove an unprecedented threat to the Second Amendment. John McCain is its Judas goat-leading the sheep to slaughter.

McCain`s relationship with the Democratic leadership paid off when he demanded to bring his campaign finance bill directly to the floor. By doing so, McCain short-circuited the entire normal, deliberative hearing process. Not one word of testimony in the first Senate session of the 107th Congress was heard on campaign finance reform. Not one ordinary American appeared in support or opposition to this legislation. That blackout of public comment was McCain`s ace in the hole.

Groups that would have coalesced to fight this legislation simply didn`t have the time to energize their troops. The flurry of confusing "reform" amendments made oppressive bill language even worse. The final bill that emerged, after a 59-41 roll call vote April 2, is as dangerous an affront to liberty as anyone could imagine.

For all lobbying organizations, what this legislation actually does must be viewed in the worst sense of practice and enforcement. For the NRA, imagine New York Senator Chuck Schumer as U.S. Attorney General in a future administration, with the power to prosecute his choice of victims with hordes of lawyers at his disposal. Keep in mind that every violation in McCain-Feingold is a Federal crime, many with five-year-prison terms and heavy fines.

Take for example the question of "coordination." Under current law, a nonprofit lobby such as NRA`s Institute for Legislative Action can spend an unlimited amount of money in a political campaign for grassroots mailings to members; advertising directed at the public in general (issue advocacy); operating phone trees, or organizing volunteers, etc. NRA-ILA bears the costs of virtually all grassroots work from its headquarters and in the field.

The unregulated funds that pay for these activities under McCain-Feingold are called "soft money," which is nothing more than funds donated to NRA-ILA by individual Americans--mostly members--who support the NRA`s preservation of the Second Amendment.

"Hard money," on the other hand, is the Federally regulated money that comprises direct contributions and in-kind contributions to candidates or parties. For organizations such as NRA-ILA, contributions can total no more than $5,000 per election, and must be given through its political action committee (PAC), the NRA Political Victory Fund. The same goes with in-kind contributions-services that are done in direct cooperation with a candidate, committee or party. And "hard money" must be raised separately and only from individual donors who are limited to how much they can give a PAC.

The line between a coordinated campaign with hard money limits and an independent expenditure campaign under existing law is very clear. Organizations such as NRA follow the law assiduously, because it is unambiguous.

McCain-Feingold redefines all of the rules and all of the definitions with respect to "coordination"-with the effect being that it would be virtually impossible to avoid crossing the line.

A lobbyist who does his or her job and meets with a candidate on key issues could be charged with "coordination." Say, the lobbyist talks to a member of Congress about Project Exile-enforcing the armed violent felon provision of Federal firearms law-and the incumbent candidate embraces the concept in his campaign: That would be taken as "coordination."

The standard for what constitutes "coordination" is impossible to meet. A normal independent expenditure, say, a get-out-the-vote rally with NRA President Charlton Heston, Executive Vice President Wayne LaPierre and NRA-ILA Executive Director Jim Baker, could be construed as coordinated with a candidate if any one of the three had talked to the candidate or anybody connected with the candidate--or even with somebody with the candidate`s national party. That would mean that every NRA activity remotely connected to that rally could not exceed a total cost of $5,000--and then only if NRA`s PAC had not already given regulated cash or hard money. All the spending over and above that $5,000 maximum would be illegal.

Under the McCain-Feingold Act, the folks who wrote the checks, and Mr. Heston, Mr. LaPierre and Mr. Baker--as officers of the NRA--would be open to prosecution. How could you prove an NRA member mailing in support of a friendly Federal candidate was not coordinated if the standard were, "at the request or suggestion of, or pursuant to any general or particular understanding with, such candidate, the candidate`s authorized political committee, or their agents, or a political party committee or its agents?" That covers the political universe, and would kill grassroots electoral participation.

This is clearly an attack on the First Amendment right of association. The McCain-Feingold outright ban on issue advertising on any television or radio medium is just as crazy.

As introduced in January, McCain-Feingold exempted groups such as NRA-ILA and PACs. It was divide and conquer. The notion among "reform" strategists was to take a step at a time--exempt groups such as NRA now, and come back for them later.

That thinking was shattered when Sen. Paul Wellstone (D-Minn.) roared in with an amendment placing issue advocacy groups and PACs squarely under the heel of McCain-Feingold`s all-smothering strictures.

Specifically mentioning NRA, Wellstone told the Senate that "perhaps over $100 million was spent by independent groups trying to influence Federal elections with sham ads during the 2000 cycle ... More than 70 percent of these sham electioneering ads sponsored by groups are attack ads that denigrate a candidate`s image or character as opposed to 2 percent, the good news, of the candidate-sponsored ads" (emphasis added).

"Any group, any organization, any individual can finance any kind of ad they want" (emphasis added).

Nobody could misunderstand Wellstone or what he was talking about--silencing independent political voices he disagrees with. Wellstone`s words take what others argue as a "slippery slope" to the extreme. His amendment is the first step off a cliff.

Because the ban on broadcast ads is triggered by the phrase--"refers to a clearly identified candidate for Federal office"--McCain-Feingold is so dangerously all-inclusive that virtually any advertisement or communication aired by any issue advocacy group during the 30- and 60-day campaign blackout periods would be banned.

An NRA ad, run in New York, that presents a purely intellectual treatment of the Second Amendment--without any specific reference to a candidate--in an election where gun control is an issue, could easily be construed as "referring" to a candidate. The NRA is for the Second Amendment--candidate Chuck Schumer wants to get rid of it. Blackout.

An ad for Eddie Eagle, in an election where "gun safety" is an issue, could be construed as obliquely "referring" to a candidate. NRA is for gun safety. So is candidate X. Blackout.

You can`t think of an ad that NRA could run that an anti-firearms-rights administration wouldn`t ban. And who decides? Some Federal bureaucrat. And running an unapproved ad could mean criminal prosecution and heavy fines under the Brave New World of John McCain and Russ Feingold (D-Wisc.).

Except for the criminal penalties, the crushing McCain-Feingold stricture on expenditure of funds that affect political speech is identical in concept and intent to Federal campaign spending laws that the United States Supreme Court declared unconstitutional in 1976.

That case--Buckley v. Valeo (424 U.S. at 1)--has been cited in at least 20 lower court decisions upholding the principle that money spent in the exercise of free political speech is essential to free speech itself. Buckley declared that laws regulating money spent for "issue advocacy" served to "prohibit all individuals who are neither candidates nor owners of institutional press facilities, from voicing their views" (emphasis added). The language struck down by Buckley was virtually identical to McCain-Feingold.

So where is the media? Where are those who piously practice their part of the First Amendment? The big boys among them love McCain-Feingold. Destruction of someone else`s free speech is more power to them.

The print media love it, because the ban on broadcast issue ads will simply mean more ad revenue in their pockets. And the network news--which considers its function as "gatekeeper" of all information--loves it because they are specifically exempted from S.27. What they really want is to be the only broadcast influence on voters during elections.

Senator Phil Gramm (R-Texas) warned of other consequences of McCain-Feingold on the American political process: "If we limit the power of people to spend their money, we strengthen the power of people who exert influence in other ways. We don`t reduce power. We don`t reduce whatever corruptive influence may exist among the people who want to influence government. We simply take power away from some people and, by the very nature of the system, we give it to somebody else."

McCain-Feingold was a sneak attack, and that only works once.

House Majority Whip Tom DeLay thinks it can be stopped, and the Texas Republican Congressman will be tireless in his opposition. The dynamic in the House is entirely different from the "power-sharing" of the Senate. And the House rules are much more difficult to short-circuit.

Still, the big-media spin machine keeps repeating the mantra that campaign finance reform has passed the House in previous sessions, but, in truth, it moved with the total assurance that it would die in the then Republican-dominated Senate. For some who voted for the concept in the past, it was a throw-away vote for the benefit of "progressive" supporters. Now--with a real vote--the outcome could be different.

And the House is beginning to hear from the very grassroots voters McCain-Feingold would silence. When the e-mail, snail-mail and telephone calls really begin to arrive in staggering numbers, the political atmosphere in the House will change. But only then.

The irony of ironies--in the mess that John McCain has personally dumped on the American people--is that in McCain`s own view he admits that what he wants to fix may not actually be broken, referring to what he calls "the abundant evidence of at least the appearance of corruption." Appearance ain`t good enough.

In his opening statement for the long floor debate McCain said, "Do I believe that any law will prove effective over time?

"No, I do not.

"Were we to pass this legislation today, I am sure that at some time in the future, hopefully many years from now, we will need to address some new circumvention."

The system isn`t broken, and John McCain`s fix will only serve to destroy it.


The NRA Political Victory Fund (NRA-PVF) is NRA's political action committee. The NRA-PVF ranks political candidates — irrespective of party affiliation — based on voting records, public statements and their responses to an NRA-PVF questionnaire.