Posted November 3, 2006 by Scott Thomas and Trevor Potter

Changing the Terms in the Debate in an Effort to Change the Outcome

Opponents of the Bipartisan Campaign Reform Act (BCRA) are taking a new tack – changing their language in hopes of changing their luck in court and in the court of public opinion.

On opinion pages and in courts across the country, opponents of BCRA (also known as “the McCain-Feingold law”) are taking what the Supreme Court recognized as “sham issue ads” and attempting to repackage them as “grassroots lobbying.”  The periods prior to the primary and general elections when the law requires corporations and unions to use money from individuals (instead of general  treasury funds) to pay for radio and TV ads that mention federal candidates by name are being misleadingly and inaccurately labeled  as ”blackout periods” when free speech is “banned” or “suspended.”

This concerted push to change the public debate by changing the terminology is nothing new in politics – after all, one man’s “estate tax” is another man’s “death tax.”  But this effort to muddy the language should not obscure the truth about the sham issue ad provisions in BCRA.   

The electioneering communication provision in BCRA was crafted carefully to assure that every American—including artificial legal entities such as corporations and unions-- would remain free to engage in robust grassroots lobbying of Congress,  if they chose to do so.  Even during the 30 days before a primary or 60 days before a general election, corporations and unions can run hard-edged ads that argue for passage or defeat of a particular bill and urge the targeted audience to “contact Congress immediately.”  The Senate or House switchboard numbers can be provided so that the citizen who calls will be routed to his or her elected representative.  In other words, if a corporation or union really wants to fire up citizens in connection with a legislative issue using radio and TV, and thereby wants to bring pressure to bear on a particular Member, it can be done on radio and television with treasury funds right up to the day of the election. Petitioning the government for grievances can continue.  Free speech is not “blacked out.”

The reality, of course, is that almost no true “grassroots lobbying” is done on radio and television in the period right before an election. Ask any trade association, membership organization, or other lobbying group how they lobby Congress, and they will talk about mailings to their supporters, emails to Congress, phone call “patch-throughs” to congressional offices, “astro-turf” lobbying, and good old fashioned visits to congressional offices and contacts by leading supporters. NONE of these are covered by the “electioneering communication” provisions.  Lobbyists generally do not use radio and tv ad campaigns, because they are not efficient lobbying tools: they are outrageously expensive and too diffuse for the purpose at hand.  They are useful in a broad scale attempt to change voter attitudes about candidates—not in the narrow casting needed to move or stop legislation. The famous “Harry and Louise” ads—about the only visible national radio and TV ad campaign on a legislative issue in the last decade, is the exception that proves the rule: they did not even mention specific members of Congress!

In addition to not being necessary to effective lobbying of Congress, crossing the line into pre-election radio and TV broadcast ads that mention particular candidates almost invariably leads to ads that implicitly criticize or praise the named candidate.  The FEC’s tortured history of trying to deal with the alternative “express advocacy” standard shows that a bright line test is needed to prevent election-oriented gamesmanship in the highly influential area of radio and TV advertising.

A recent proposal put forward at the FEC would have allowed the ad in question to “reference the position or record” of the named officeholder who is a candidate.  Thus, the ad would have been able to say, “Bill X will destroy America as we know it.  But Senator John Doe says he is for Bill X.  Let him know what you think.  Call (202)555-5555 right now!”  If the primary goal of a corporation or union sitting on millions of dollars of treasury funds was to defeat Senator Doe, such an ad would make sense to the advertiser.  After the election of Doe’s opponent, the sponsor of the ad could probably bank on a friendly reception.  That is the reality  Congress and the American people recognized by supporting the electioneering communication restriction in BCRA.  There may be a way to craft a “grassroots lobbying” exception to the statutory rule, but the proposal before the FEC was not it.  The wording was fraught with too much ambiguity and opportunity for abuse.

Contrary to the suggestion of some, the nonprofit sector does not fare worse than the business and labor organization world under the electioneering communication rules.  Even though incorporated, such nonprofits also can use treasury funds to run radio and TV ads that explicitly attack a pending bill, that say “Members who support this bill must hear from you,” and that urge the audience to “Call the Senate immediately at (202)224-3121.”  Moreover, just as an exception exists in the “express advocacy” area for certain non-profits that do not take corporate or union funds, a similar exception exists for such groups in the electioneering communication area.  This is the so-called “MCFL” exemption, created by the Supreme Court, to allow certain nonprofit issue organizations to run advertising—even overt election advertising—provided they do not take corporate and labor funds. Thus, the bright line rule actually is less onerous in the non-profit area, not more onerous.  While some non-profits do not have well-heeled PACs to pick up the slack if it is believed that a reference to a specific candidate is needed in a radio or TV ad just before an election, there are many other avenues to explore using newspaper and periodical advertising, mass mailing, phone banks, and Internet e-mail campaigns—none of which fall under the electioneering communication restriction.

The concern that BCRA addressed goes to the core of our political process.  Citizens do not want our elected officials to be beholden to corporations or unions that can amass huge treasuries in the business and labor relations fields and then use those funds to influence the outcome of elections. This is the reason that corporate and labor union federal campaign contributions and election activity have been largely prohibited for decades.  Those corporations and unions that have attempted to evade this ban and elect or defeat federal candidates have left an unpleasant trail.  One need only look at the overwhelming record developed in the Supreme Court case McConnell v. FEC—laying bare  the purpose and effect of  so-called “issue ads”--  to understand the Court’s rationale for upholding the electioneering communication rule. 

Some business, labor, and even nonprofit officials may not like the BCRA restrictions, but they understand them.  They know there are legitimate reasons for restraining the ability of  entities such as corporations and labor organizations seeking to ‘buy’ influence of elected officials.  Elected officials also know the corrosive effect of large-scale favors in the form of campaign support.  Unfortunately, there are some  opposed to the reform community who are not looking for balance. They are looking to shift the debate by changing the terminology and suggesting dark motives on the part of those who favor reasonable campaign constraints on entities able to amass large warchests.   We hope the debate stays focused on what Congress, the courts, and average citizens know:  government should not be for sale.