Free Speech in the Twilight Zone

Posted on November 14, 2002

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On Nov. 6, AMERICANS became less free to speak out than at any time in our nation`s modern history, losing a large measure of their right to exercise collective paid political speech. On that date, John McCain`s dream of political thought control--the Bipartisan Campaign Reform Act of 2002 (BCRA)--took effect. And when it did, American liberty entered the Twilight Zone.
by JAMES 0. E. NORELL


This is a bad news, good news story. The bad news is that Americans are facing an Orwellian nightmare--a bottomless pit of regulation and rules, all designed to cut off collective free speech. The good news is that NRA and a host of others are working hard to uphold the U.S. Constitution through court challenges all the way to the U.S. Supreme Court. (See Below)

The reality of the nightmare of the Bipartisan Campaign Reform Act came to pass through a massive and often confusing series of regulations issued by the Federal Election Commission (FEC) interpreting and expanding the provisions of what had become known as McCain-Feingold.

Under these edicts--some of which rewrite or go far beyond the statute--paid political speech broadcast through any electronic medium is banned under a total blackout 30 days before a federal primary or party caucus and 60 days before a general election if such speech "refers to a clearly identified candidate" and if it might be seen or heard by 50,000 people in a state or congressional district.

Any organization violating the ban--even making reference to a candidate`s name in connection with the popular name of federal legislation--try, McCain-Feingold--could be convicted of a criminal act.


Electioneering Communications

THE OPERATIVE WORDS here are "electioneering communications." That`s the language that constitutes a federal crime, if it`s not used in a federally prescribed way.

Meeting the criteria of "electioneering communications" are any words that "refer to a clearly identified candidate." The regulations include even an oblique reference by title--"the president" or "the senator."

In fact, in its proposed rulemaking, the commission proffered, then ultimately rejected, a rule "that would have exempted a communication that refers to a bill or law by its popular name where that name happens to include the name of a federal candidate, if the popular name is the sole reference made to a federal candidate."

In its explanation, the commission said there was no way to establish an "objective standard," explaining in its best Orwellian prose:

"The commission is persuaded that communications that mention a candidate`s name only as part of a popular name of a bill can nevertheless be crafted in a manner that could reasonably be understood to promote, support, attack or oppose a candidate. Furthermore, this type of exemption is not necessary because communications can easily discuss proposed or pending legislation without including a federal candidate`s name by using a variety of other means of identifying the legislation. In addition, the commission recognizes that there are valid concerns as to which names to include in a bills popular name, which are not necessarily resolved by the mechanical use of the name of only the original sponsors. Nor would this approach adequately address the names of the sponsors of amendments to the legislation. Consequently, the final rules do not include an exemption for such communications."

In practice, here`s what that means. U.S. Sen. Charles Schumer, D-N.Y., is a federal officeholder. If he announces he is running for reelection and thus becomes a federal candidate, and if he introduces a firearms ban, the big national media can call it the "Schumer Bill," or the "Schumer Legislation." That`s what will be in the public`s mind. That`s what they will be hearing, seeing and reading.

For his part, Schumer, if he wants, could even call it the "Chuck Schumer Loves All Gun Owners Act." But the National Rifle Association would commit a criminal act if it runs a purely grassroots lobbying ad 30 days before the New York primary or 60 days before the general election calling the legislation by the same name that the national media call it!

The millionaire-salaried pundits working for media conglomerates--Dan Rather, Peter Jennings, Tom Brokaw--are free to use Schumer`s name. Yet Wayne LaPierre or Charlton Heston cannot even say, "oppose the Schumer Bill" in a paid broadcast that reaches 50,000 New Yorkers without committing a crime.

This is a ban on a major aspect of grassroots lobbying and has nothing to do with purely political activity. It has nothing to do with directly exhorting the public to vote for or against a candidate.


John McCain`s Twilight Zone

UNDER THE NEW law and expanded rules, there are certain entities permitted to purchase time for broadcast messages deemed "electioneering communication." Political action committees (PACs)--like the NRAs Political Victory Fund--are permitted to make "electioneering communications" that support or attack federal candidates. But PACs are subject to all sorts of other strict federal regulations. Funding from an affiliated organization cannot be used. Further, PACs have to give the names and addresses of contributors over $200 (that`s an aggregate total per year).

As an aside, there is a major exception to the contributor disclosure, granted under two FEC Advisory Opinions in 1996 that "allowed the Socialist Workers Party to withhold the identities of its contributors and persons to whom it had disbursed funds because of a reasonable probability that the compelled disclosure of the party`s contributors` names would subject them to threats, harassment or reprisals from either government officials or private parties."

So the NRA-PVF has to cough up the names and addresses of contributors who give it more than $200, while the Socialist Workers Party`s funding sources are sealed.

Additionally, the commission boldly took powers never even intended by Congress--powers to regulate what state and local candidates are permitted to say in their paid political advertising.


Regulating State and Local Candidates

IN GRANTING AN "exemption" for ads run by state and local candidates, the commission made an exception: ". . . this exemption covers public communications by state and local candidates that do not promote, support, attack, or oppose federal candidates." But what about a candidate running with a strong pro-firearms rights message in upstate New York with ads attacking Chuck Schumer or Hillary Clinton? What about a local candidate mentioning a federal candidate for failure to attend to local issues?

All of this paid speech is subject to the overview and control of federal authorities. The FEC says such communications "must be paid for with federal funds meeting the limits, prohibitions and reporting requirements of the act The reporting obligations of state and local candidates making communications promoting, supporting, attacking or opposing federal candidates are governed by a number of provisions depending on the exact nature of the communications and the persons making them."

For running an ad that meets the definition of "electioneering communication," Americans running for public office in purely state and local elections are now subject to masses of red tape and regulation of the federal government. The failure of these state and local candidates to jump through these federal hoops could be construed as a criminal act. Any way you look at it, this is federal control of state and local candidates` political speech.

Yet nothing in the Constitution gives the federal government this kind of power over state and local elections.


The Big Media Exception

OF COURSE, THE biggest exceptions of all are media corporations. They are utterly free to say whatever they want, whenever they want--which, by the way, is the way it ought to be.

But that is the way it ought to be for the rest of America, too--for all citizens.

The draconian regulations issued Nov. 6--with still more to come--paint a reality far worse even than that predicted by visionaries like NRA Executive Vice President Wayne LaPierre and others who opposed McCain-Feingold when it was rammed through Congress.

On top of the clear constitutional questions, BCRA has produced a bureaucratic nightmare. The law requires the Federal Communications Commission to create an electronic database available on its Web site to provide potential airtime buyers critical information needed to stay within the law, such as which individual broadcast outlets are capable of reaching audiences of 50,000 and upward--the trigger as to whether a paid program or commercial might be prosecutable.

The FCC informed the FEC that "this undertaking could be extraordinarily complex and will require the expenditure of substantial resources in terms of time, money and personnel." The FCC said the database might not be in place by the next election cycle (or beyond), though the information required is supposed to serve as an "affirmative defense" against prosecution.

The FCC wrote that there are 8,450 FM radio stations, 4,811 AM stations, 1,712 full-power analog television stations, 516 digital television stations and 10,500 cable systems, and several satellite providers--all of which must be measured and catalogued as to potential audience numbers by congressional district and state.

This alone is an almost impossible undertaking. Consider the merging of state lines and congressional districts with broadcast reach. In the meantime, without those figures as an affirmative defense, the FEC suggests time buyers are on their own to prove their innocence, using three suggested methods, all of which could be subject to challenge. Remember, the FCC database may not be available for years.

"The commission encourages, but does not require, persons who believe their communication will reach fewer than 50,000 persons in a particular congressional district or state, to confirm this before the communication is transmitted by checking the FCC Web site, or if the Web site does not so indicate, obtaining a written statement from the broadcast station or network, cable system or satellite system, or otherwise determining that the communication will not be aired on any broadcast station, radio station, or cable system in any MA (metropolitan area) in the specified district or state. Otherwise, violations might occur."

Would you bet your life on that? Your career?

In none of this is there a presumption of innocence. Quite the opposite. The net result might well be that an organization would simply be unwilling to take the risk, which would go far to assure that citizens, lobbies and unions are totally silenced.

Further, the FEC`s interim final rules on the FCC Database on Electioneering Communications also raise the specter of Big Brother, announcing"... BCRA amends the Communications Act of 1934 to require broadcast licensees to maintain certain records regarding requests to purchase broadcast time for the purpose of communicating a message of a political nature`

So if a buyer for an organization`s infomercial or even a political broadcast that would fall under the rubric of "electioneering communication" makes a request for time, there would be a paper trail.

If this law stands, it could be the beginning of the end of freedom in our nation. Logically, if free speech goes, the power to protect the rest of the Bill of Rights is lost as well.


NRA Presses Campaign Finance Lawsuit

NOV. 4 WAS THE DAY that the National Rifle Association, along with 80 other organizations and individuals participating in a consolidated challenge, filed briefs to have the law struck down as violating provisions of the U.S. Constitution.

Among those groups joining with NRA are organizations as varied as the AFL CIO, the American Civil Liberties Union and the National Association of Broadcasters. The case--McConnell v. FEC derives its name from U.S. Sen. Mitch McConnell, who was the opposition floor leader who fought long and hard to defeat the bill in the U.S. Senate.

The case--first brought by NRA--is in the United States District Court for the District of Columbia and is headed to the U.S. Supreme Court on a fast track mandated by the law itself.

For its part in the consolidated challenge, NRA legal expertise has been brought to hear on the question of the ban on paid, broadcast political speech--specifically the 30-day and 60-day advocacy advertising preelection blackout.

At Issue, for NRA are the sections of BCRA and the ensuing regulations that outlaw any reference "to a clearly identified federal candidate." The regulations even expand the specific list of words that would constitute a federal criminal violation if uttered on radio, television, cable or Internet Web cast in productions paid for by organizations like NRA.

Words such as "congressman, president, vice president" would serve as proof that any broadcast be construed as "electioneering." If, in an hour program on the fallacies of gun control, anyone were to mention the name Al Gore, even in a context of legislation, the commission speech police could move for prosecution.

In past years, NRA has heavily invested in broadcast campaigns designed to educate the general public on various aspects of the continuing battle over firearms rights. These efforts have been in the form of paid spot messages. More recently, in the form of self-paying "infomercials," the paid broadcasts have been highly successful.

In addition, NRA, in past years, has placed advertising to counter specific legislative dangers.

All of this access to the public by NRA is now endangered by the BCRA free speech gag law. For example, in one of NRA`s infomercials, President Charlton Heston is shown raising a Lancaster flintlock saying, "From my cold dead hands . . . Mister Gore." The words "Mister Gore" could easily make this broadcast illegal if paid for by NRA.

David Thompson, one of NRA`s lead trial attorneys, told America`s 1st Freedom:

"The First Amendment says that Congress shall pass no law infringing the freedom of speech. That means what it says. If obscenity on the Internet is protected, then certainly core political speech--like saying Al Gore wants to take our guns away--is protected."

Commenting on NRA`s constitutional challenge, Thompson said, "Where we are really strong is that the NRA is the quintessential voluntary membership organization that reflects the American tradition of ordinary citizens banding together to make their voices heard. And now more than ever, that`s really important. Ordinary people cannot buy a TV ad without pooling their resources. I think that`s going to resonate with the court."

When proponents of the free speech gag law, like John McCain and his friends in the media, keep talking about "leveling the playing field," clearly with this law they are sweeping the field clean of most of their natural opponents. In fact, in recent weeks McCain and Sen. Russ Feingold, his Democratic enabler, have introduced legislation to give federal candidates like themselves free airtime to expound their views--free time that would be used during the mandated blackout for groups like NRA.

"Candidates and politicians have far more access to free media," Thompson continued. "Especially anti-gun politicians have far more public broadcast access than does the NRA."

In his "declaration" filed with the court, NRA Executive Vice President Wayne LaPierre made the case succinctly.

"The Second Amendment and the NRA are at the center of a culture war LaPierre said. "The Bipartisan Campaign Finance Reform Act effectively cedes the entire battlefield in this cultural war to the broadcast media corporations and politicians. It allows federal candidates and the big media conglomerates to say whatever they want about the NRA in the months before an election and shields them from any effective response by prohibiting the NRA from tittering the name of its attackers . . ."

In the past, the U.S. Supreme Court has staunchly upheld political free speech--especially the kind exercised by the NRA.

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