September 26, 2006
By Michael E. Toner and Robert F. Bauer, Special to Roll Call

Observing the Restricted Speech Zone

For the second consecutive election cycle, the McCain­Feingold campaign finance law will prohibit certain political ads from running during the last 60 days before Congressional elections. These are ads that refer to a federal candidate, are paid for out of a corporation or union’s general treasury funds and are broadcast to the candidate’s voters. Nothing more than the mere mention of a candidate is required for the ban to apply. No corporation is too small, or its purposes so educational or charitable, that it is excused from this law.

This broadcast ban has proved distasteful to the left and the right, which have built an extraordinary alliance against its extension to even constitutionally protected “grass­roots lobbying” on issues. It also is less a concern for “big business” or “big labor” than it is the cause of many nonprofit organizations — ones dedicated to social welfare, educational or charitable purposes — who have joined together, across ideological lines, to defend their advocacy programs.

In Massachusetts Citizens for Life v. Federal Election Commission, the Supreme Court rejected a regulatory attack on a nonprofit’s use of bake­sale proceeds to publish an election­year newsletter that rated candidates on abortion rights. “Groups such as MCFL,” the court declared, “do not pose that danger of corruption” that supports restricting their use of general funds for advocacy. But the court was unwilling to follow the logic of its own position, instead leaving the MCFL as the special case. McCain­Feingold’s ban worsens the situation for nonprofit, ideological advocacy.

Consider a nonprofit organized to advance a program of economic justice and worried about the minimum wage. May it run an ad noting that Congressman X so far has failed to support an increase and urging him to do so? Not out of its general funds from now to Nov. 7, when the officeholder may, in fact, be acutely attentive to the message. And the same is true for a 501(c)(3) charity devoted to health care or the promotion of children’s literacy or international human rights. In this time of debate over war and peace, an ad run in the last 60 days before an election appealing to a Member of Congress to “stay the course” or to “bring our troops home” could well violate federal election law and result in severe legal penalties. A bipartisan effort to exempt such grass­roots lobbying communications from the advertising ban has so far failed to move the FEC.

The FEC could not agree on a carefully drawn proposal to exempt from the restriction ads that speak to issues but without supporting or opposing any candidate for federal office. The proposed exemption was timed to last only a year before the FEC decided whether to make it permanent, but the agency split and the proposal died.

As a result, corporate and union issue ads of all kinds and on all subjects, whether funded by for­profits or nonprofits, will be treated as “sham” advertising and prohibited. Supporters of the law have conceded that this advertising prohibition in the last 60 days before an election restricts speech on issues. But they typically minimize the harm, insisting that only a few of these “genuine” issue ads run immediately before elections and that they may still be run without the names of candidates or if paid for by political action committees.

The Supreme Court recently rejected this view. After all, the right to petition the government does not expire 60 days before an election. Evidently in the expectation that the FEC would solve this problem, all nine justices pointedly noted that the FEC could act to protect this speech. But the FEC has declined to do so.

News editorials barely noted this event. Reform organizations rejoiced. Few others in the country might have cared. This is how major damage to the cause of free speech can come about in Washington, D.C. One of the authors helped bring the case to the FEC, and the other was among the commissioners who supported it. Like the coalition members who are united on this issue, we have little else, politically, in common. But like those members, we believe that the interest in free and vigorous speech overcomes traditional ideological divisions.

We hope the FEC reconsiders its decision and protects issue speech in the future. Vigorous public debate of the issues of the day depends on it.

Michael E. Toner is chairman of the Federal Election Commission. Robert F. Bauer is chairman of the Political Group at Perkins Coie.

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