Campaign law fears proving well-founded
March 3, 2003

Some suggest that Sen. John McCain’s “Bipartisan Campaign Reform Act of 2002” represents a threat to free speech and the unfettered political discourse so necessary to the functioning of a free society. The Arizona Republican has dismissed them as cranks and extremists who are “lying” about what is in the legislation.

Yet anyone who has taken the time to read the regulations the Federal Election Commission is putting together to give effect to its strictures can only conclude that the fears of McCain’s critics have been well founded from the beginning.

These fears seem to me to be fully justified when one looks at recently promulgated rules on what are known as “coordinated public communications.” You and I will continue to have a constitutional right to express our views on public policy issues in McCain’s brave new world, but we’d better be careful lest what we say reaches too many people within 120 days of any primary or general election.

During this period any public communication that reaches 500 people in an area in which a candidate is running can be ruled a coordinated public communication if it is made by an individual or organization that has had a discussion with the candidate, any one associated with the candidate, or is in contact with or assisted by any of his agents or anyone associated with his political party or any vendor, employee or independent contractor who has been associated with the candidate, his campaign or political party.

The “communication” doesn’t have to urge the election or defeat of the candidate. All it has to do is mention either the candidate or the candidate’s party to cross the line. And if it does cross the line, fines and even jail time may result.

This is dangerous stuff. To see just how dangerous, consider the following possible scenario:

As next year’s primaries approach, a vacancy opens up on the U.S. Supreme Court. President Bush nominates a conservative. One of Sen. John Edward’s (D-N.C.) staffers suggests to Ralph Neas, head of People for the American Way, that a lot of senators’ feet will need to be held to the fire if the president’s choice is to be defeated.

Neas’s group swings into action and orders a television, advertising and direct mail campaign aimed at sinking the nominee. A firm that does or has done some work for the Democratic Party prepares the ads. The firm that buys the time to put the ads on the air is also purchasing time for one of the Democratic candidates for president.

The likelihood that all of these things could happen is quite high. The consultants in the firms doing work for advocacy groups often also do work for parties and candidates or employ people that have done such work in the past. Washington, after all, is a pretty small town and just about everyone has the kinds of connections McCain’s witch hunters will be empowered to look for under the new rules. In fact, finding a competent firm that hasn’t done this work might prove well nigh impossible.

As the ads run, the Federal Election Committee notices them, deems them “coordinated,” and declares that the money Neas is spending is an in-kind contribution to the Edwards campaign. This subjects Neas to criminal penalties. The IRS goes after his organization for blatantly illegal corporate contributions.

Sound bad? Well, it is, but if the authors of this legislation have it their way, it could be even worse.

Reps. Chris Shays (R-Conn.) and Marty Meehan (D-Mass.) want the courts to throw out these regulations -- not because they are too restrictive, but rather because they are “too narrow.” They want to eliminate the 120-day threshold so that the government can take action whenever a candidate of officeholder is mentioned.

Under their interpretation of the law they helped McCain write, it might not even be necessary to name the candidate or the party to find oneself on the wrong side of the feds.

Indeed they are asking the district court to rule that simply the discussion of an issue that might have some impact on the outcome of a race should trigger criminal penalties even if no actual candidates are named. If this isn’t designed to shut down public discussion of policy options nothing ever has been.

If the three-judge panel that has already heard arguments on the constitutionality of McCain’s pet law fails to knock it down, the First Amendment we learned about in school will cease to exist.

The sad fact is that neither Congress nor Bush stood up for the constitution when they had the chance. So now it is up to the courts.

Maybe that’s why judges are so darned important.