Free-Speech Forces Win (Temporary?) Victory

Pro-Speech Minority Blocks McCain-Feingold, But Further Votes Likely

Sen. Mitch McConnell (R-KY). Wins Initial victory in defense of citizen groups.

National Right to Life (NRLC) and other groups fighting to protect the right to speak freely about the voting records and positions of politicians won an important victory in early October (1997), as a determined minority of senators led by Sen. Mitch McConnell (R-KY) and Republican Leader Trent Lott (R-MS) blocked the Mc Cain-Feingold "campaign reform" bill from advancing through the U.S. Senate.

But backers of the bill -- led by Sen. John McCain (R-AZ), Senate Democratic Leader Tom Daschle (D-SD), Sen. Russ Feingold (D-WI), and President Clinton -- vowed to push for more votes on the bill.

NRLC strongly opposes the McCain-Feingold bill because it contains multiple provisions that would severely restrict the right of citizen groups, such as NRLC, to communicate with the public about the voting records of members of Congress and the positions of candidates for Congress.

The bill is also opposed by many other organizations, including Christian Coalition and the American Civil Liberties Union, because of its multiple speech-restriction provisions.

For example, the bill effectively bans groups, other than political action committees (PACs), from communicating with a politician about a given issue and then communicating with the public in a way that is "of value" to the politician, by defining such speech as a form of "contribution" to a candidate. This wold apply, for example, to groups that send questionnaires to candidates to learn their positions on issues, and then use that information to inform the public.

The bill also effectively bans groups, other than PACs, from publishing complications of congressional voting records if those publications contain explicit or implicit commentary on the votes. Only material that present votes "in an educational manner" would be allowed.

Another provisions would make it unlawful for groups, other than PACs, to even utter the name of a member of Congress or candidate for Congress in a TV or radio ad, within 60 days of a primary or general election.

In a September 9 letter to senators, NRLC said, "Because this legislation would grossly infringe on the right of NRLC, its state affiliates, and its local chapters to communicate with the public regarding the actions and positions of officeholders and office seekers on pro-life issues, NRLC will include roll call votes on this legislation -- including any cloture votes -- in our 1997 'scorecard' of key votes."

On October 1, the American Civil Liberties Union (ACLU) sent senators a letter stating that the latest version of the bill "still cuts to the core of the First Amendment ... These unprecedented restrictions would effectively silence issue advocacy by the countless hundreds and thousands of groups that add to the political debate in America."

Lott, McConnell Block Bill

The Senate took up and debated the bill intermittently for two weeks in late September and early October. Republican Leader Lott immediately complicated the efforts of the bill’s backers by offering an amendment to require that labor unions receive permission from union members before their dues are used for "political" purposes. This so-called "paycheck protection" amendment was unacceptable to most of the Senates’s 45 Democrats, but they were unable to muster the votes to set it aside.

Sen. Trent Lott (R-MS) helped to lead the fight for First Amendment Rights.

Moreover, Sen. McConnell made it clear that if necessary he would lead a filibuster against the bill, making it impossible for backers to bring the measure to a final vote without first mustering the votes of 60 senators (out of 100) - a process called "invoking cloture."

The Senate voted three times -- on October 7, 8 and 9 -- on whether to invoke cloture on the bill. On October 7, 53 senators voted for cloture. On October 8 and 9, 52 senators voted for cloture. In each case, therefore, a majority of senators voted to advance the pernicious McCain-Feingold legislation, but fell short of the 60 votes necessary to overcome the opponents.

"Our side has prevailed on the first skirmish, but the war is far from over," said NRLC Legislative Director Douglas Johnson. "So long as the news media keep cheering them on, the lawmakers who wish to restrict our right to talk about their positions will keep forcing votes on ‘campaign reform’ this year and next year."

On these three roll calls, all 45 Democratic senators voted for cloture, in favor of advancing the bill. On the Oct. 7 roll call, they were joined by eight Republicans. However, on the Oct.8 and Oct. 9 roll calls, Sen. Tim liutchinson (R-AR) switched sides and voted with the opponents of the bill. Sen. Connie Mack (R-FL), an opponent of the bill, missed the Oct. 8 and Oct. 9 roll calls because of a health problem.

In an Oct. 8 statement on the Senate floor, Sen. Hutchinson said he had voted for cloture on Oct. 7 because he wanted to advance certain changes in current campaign finance laws, but that he would no longer vote for cloture on the current version of the bill, which, he said, "contains provisions that threaten free speech and pose constitutional problems, especially in the area of issue advocacy. These groups, regardless of their affiliation, deserve to be a part of the political process and we cannot in any way place a chill on their right of free expression and their ability to criticize public officials."

"Reform" Endorsed by NARAL

A report in the Boston Globe (Oct. 7) credited NRLC with a leading role in opposing the legislation, noting, "The committee’s lobbyists lead a coalition of advocacy groups working against the McCain-Feingold bill," adding, "No group had fought the issue as vigorously as the antiabortion movement." The Globe quoted NRLC’s Douglas Johnson as saying the bill "would cripple the pro-life movement."

Notably, Kate Michelman, president of the National Abortion and Reproductive Rights Action League (NARAL), told the Globe, "We are watching very carefully to make sure that prochoice Americans are not silenced, but we have yet to feel terribly threatened by anything that has been discussed so far We think some reform is needed. There is too much money being spent in campaigns."

Catholic Daughters Neutral

On September 17, the national leadership of the Catholic Daughters of the Americas (CDA) sent a memo to that group’s state leaders, stating that "in view of the U.S. Catholic Bishops’ decision late last week not to issue a statement supporting or opposing Campaign Finance Reform, CDA as an organization will not support or oppose the McCain-Feingold bill or any other bills on this subject currently before Congress."

Some weeks earlier, the National CDA office had sent out copies of a petition to Congress endorsing the McCain-Feingold bill but the Sept. 17 memo effectively rescinded that action, and said that any filled-out petitions sent in to the CDA office will not be submitted to Congress.

Common Cause Ads

In mid-October, Common Cause and Campaign for America, two special interest groups that lobby in support of restrictions on political speech -- began running radio ads in Kansas, Nebraska, Indiana, and Colorado, criticizing senators for voting to block the McCain-Feingold bill. NRLC’s Douglas Johnson pointed out to the Washington Post that if the bill were enacted, the Common Cause ads would be unlawful unless run by a PAC, arguably at any time of the year and certainly within 60 days of an election.

Johnson noted that the House and Senate voted on whether to override President Clinton’s veto of the Partial-Birth Abortion Ban Act in September, 1996, fewer than 60 days before the general election, and that pro-life groups would have been prohibited from running ads to support the bill if the McCain-Feingold provisions had been law.

The Campaign for America is funded by wealthy investment banker Jerome Kohlberg, formerly a big donor to Democratic causes. In recent weeks, Kohlberg spent about $100,000 on newspaper ads ion 10 states that named individual senators, according to the Post.

This article originally appeared in National Right to Life's Chapter Newsletter, November/December 1997.

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Posted 14 Sep 2000.