Putting A Muzzle On The First Amendment By James O.E. Norell
Monday, September 24, 2001
Like to think your opinion counts? Under the guise of reforming election funding, Sen. John McCain and others are attempting to muzzle your voice concerning critical national issues--including the Second amendment. And with the mainstream media trumpeting his cause, the truth isn`t seeing the light of day. Until now.
by James O. E. Norell
Campaign finance reform, especially under the guise of S. 27--the McCain-Feingold legislation that passed the U.S. Senate in April--is a direct attack on every individual American`s First Amendment right to use political speech to protect the entire Bill of Rights.
Campaign finance reform is not about big dollars influencing elections. It`s not about crooked politicians and a tainted process. It`s not about corruption. It`s not about untoward influence. It`s not about fixing a broken system.
It is about who will control information to the electorate. It is about the big media and incumbent politicians having a total lock on speech, ideas and political thought in America. It is about a television/radio blackout of truth, opinions and beliefs of individual Americans who pool their power by choosing to belong to organizations like the NRA--organizations that give them the collective clout they need to reach millions of voters through paid issue advocacy.
In short, campaign finance reform as proposed could put the NRA out of business when it comes to influencing federal elections and public policy. If NRA cannot be your voice in politics, then open season on the Second Amendment will follow.
The Letter Of The Law
The truth in understanding any legislation is not in what the mainstream media claim, nor is it even in what its proponents claim. The truth is in the black letter of the law--and what the law really does.
After 11 days of debate, with scores of amendments considered and many accepted, the black letter of the McCain-Feingold Act demands:
That all violations of the legislation are criminal offenses calling for federal prison sentences and steep fines. Such violations in S. 27 run the gamut from numerous possible filing and paperwork errors, to placing television and radio "issue" advertisements that don`t meet a government standard, to having normal lobbying discussions construed as illegal campaign "coordination" activities. Any of these could mean prison terms for officials of organizations like the NRA and their employees simply for attempting to exercise the group`s collective First Amendment rights.
A ban on broadcast, cable, or satellite television and radio issue advertising by groups like the NRA. The electronic media blackout would be enforced 60 days before a general election and 30 days before a primary election (or runoff) if the government determined that the advertising content "refers" to a federal candidate.
Massive reporting and notification of "disbursements" and "expenditures" by lobbying organizations such as the NRA. This requirement is so burdensome that during a hot political year, thousands of reports would have to be filed--literally by the minute, on the minute. For some issue organizations, the reporting requirements alone could be impossible to meet. Again, there is criminal liability for employees of such issue organizations who fail to prepare accurate reports on exacting deadlines.
Meeting legal hurdles under the guise of avoiding "coordination" with candidates for organizations using corporate or member-donated funds. These new hurdles would make "independent expenditures" all-but-impossible--effectively killing the real power in grassroots political campaigns. If the government were to declare that door-to-door campaigning, phone banks, get-out-the-vote rallies or even posting yard signs were even vaguely "coordinated" with a candidate or political party, these activities could be declared illegal, making such expenditures subject to criminal prosecution.
These are just some of the more egregious parts of the legislation in terms of shutting you and the grassroots lobby groups you support out of the electoral and political processes.
Fighting For Freedom
The fight against McCain-Feingold was led in the Senate by Mitch McConnell (R-KY), who called the legislation a "target rich environment for challenge in court." Soon after Senate passage, Sen. McConnell met with a free speech coalition, of which NRA is a member. Included are the American Civil Liberties Union, the Christian Coalition, the Business-Industry Political Action Committee, the U.S. Chamber of Commerce, the National Right to Life Committee, the National Association of Manufacturers and the National Rural Letter Carriers Association. This fast-growing confederation of groups is pooling talent and resources to fight McCain-Feingold on Capitol Hill and in the courts. Unions, such as the AFL-CIO, face the same harsh "issue advocacy" restrictions and oppose S. 27.
Under the legislation, literally every non-profit lobbying institution in the nation is affected in the same way. S. 27 will silence all of the voices of all of the individuals who support virtually every cause during elections through organized "issue advocacy."
The "dirty" word used to describe unwanted influence is "special interest" groups. That`s an inaccurate characterization, said Wayne LaPierre, NRA Executive Vice President.
When considering any and all of the strictures of McCain-Feingold, keep in mind that every violation of McCain-Feingold is a federal crime, many with five-year prison terms and steep fines.
"The NRA`s 4 million members should be proud to be a special interest group," LaPierre said. "Our special interest? Saving the Second Amendment to the United States Constitution. Now we are called upon to save the First Amendment. That`s our special interest as well."
With the potential opposition of every lobbying organization in the nation, how did McCain-Feingold ever see the light of day on the floor of the Senate?
The Media`s Darling
First, Sen. John McCain, R-Ariz., emerged from the last presidential election as the candidate of choice for the national media. They are his following--his fawning constituency. The national media do not cover the issue of campaign finance reform; rather, they are active participants in it and devout partisans of McCain`s point of view.
Given to savoring that power and a pulpit that reaches a majority of the nation, free of charge, every night and every morning, on the tube and in print, McCain has emerged as a media-styled superpower.
That leads to the second reason campaign finance reform eclipsed everything in the Senate for nearly two weeks in March and April--the 50-50 split between Democrats and Republicans, and the "power sharing" agreement that resulted from the even split.
In the Senate, power sharing is supposed to mean that nothing gets done without consensus. But in reality, the Democrats, who are far more aggressive, are often running things--especially if they can get the super-senator to swing their way.
McCain`s relationship with the Democratic leadership paid off when he demanded to bring his campaign finance bill directly to the floor. By doing so, McCain short-circuited the entire, normal, deliberative hearing process. Not one word of testimony in the 1st Senate session of the 107th Congress was heard on campaign finance reform. Not one ordinary American appeared in support or opposition to this legislation.
So, John McCain, for all his talk about power to individual Americans, cut off the voices of the very people who would be affected by his legislation. And if his legislation is enacted into law, you and other ordinary Americans of every stripe will be equally blocked from using paid political speech to affect the electoral process.
In a sense, that precipitous action was McCain`s ace in the hole for passage. Groups that would have coalesced to fight this legislation simply didn`t have the time to energize their troops.
From Bad To Worse
A flurry of confusing "reform" amendments made the oppressive bill language even worse. The legislative battle was ever-changing, and every day--for the entire 11 days--it got worse and worse.
On April 2, when the roll call vote brought the final 59-41 passage, lawyers and those who can translate the law into plain English began the task of clearing the fog from S. 27 as amended. What emerged is as dangerous an affront to liberty as anyone could ever imagine.
For all lobbying organizations, what this legislation does must be viewed in the worst sense of practice and enforcement. For those interested in protecting firearms ownership rights, imagine New York Sen. Chuck Schumer as U.S. Attorney General in a future administration, with the power to prosecute his choice of victims with hordes of lawyers at his disposal. Just imagine what Janet Reno would have done with the power in this legislation.
When considering any and all of the strictures of McCain-Feingold, keep in mind that every violation of McCain-Feingold is a federal crime, many with five-year prison terms and steep fines.
Take for example the question of "coordination." Under current law, a non-profit lobby like the NRA`s Institute for Legislative Action can spend an unlimited amount of your donated money in an election campaign for grassroots mailings to members; advertising directed at the public in general (issue advocacy); operating phone trees, organizing volunteers, etc. ILA bears the cost of virtually all grassroots work from its headquarters and in the field.
Hard Sell On Soft Money
The funds that pay for these activities under McCain-Feingold are called "soft money." Recently that term has been given a decidedly shady spin, as if there is something inherently "evil" about it. Actually, it is just money donated to NRA-ILA by freedom-loving individual Americans--most of whom are NRA members--who support the Association`s dedication to preserving the Second Amendment.
"Hard money," on the other hand, is the federally regulated money that comprises direct contributions and in-kind contributions given to candidates or parties. Today, individuals can only contribute $1,000 to a primary candidate and $1,000 to a general election candidate. For organizations like NRA-ILA, contributions can total no more than $5,000 per election, and must be given through its political action committee (PAC), the NRA Political Victory Fund (PVF). The PVF raises funds only from NRA members under very restrictive limits. The same goes with in-kind contributions--services rendered in direct cooperation with a candidate, committee or party. And "hard money" must be raised separately and only from individual donors who are limited to how much they can give a PAC.
The line between a coordinated campaign with hard money limits and an independent expenditure campaign under existing law is very clear. Organizations like the NRA are careful to follow the law assiduously because it is unambiguous.
The McCain-Feingold legislation redefines all the rules and definitions with respect to "coordination," with the effect being that it would be virtually impossible to avoid crossing the line.
A lobbyist who does his or her job and meets with a candidate on key issues could be charged with "coordination." Say the lobbyist talks to a member of Congress about Project Exile--enforcing the armed, violent felon provision of federal firearms law--and the incumbent candidate embraces the concept in his campaign. That would be taken as "coordination."
The standard for what constitutes "coordination" is impossible to meet. A normal grassroots expenditure--for example, an NRA member get-out-the-vote rally with NRA President Charlton Heston, EVP Wayne LaPierre and ILA Executive Director Jim Baker--could be construed as "coordinated" with a candidate if either had talked to the candidate or anybody connected with the candidate, or even talked with somebody with the candidate`s national party. That would mean that every NRA activity remotely connected to that rally could not exceed a total cost of $5,000, and then only if NRA`s PAC had not already given regulated cash, or hard money. All the spending over and above that $5,000 maximum would be illegal. Under the McCain-Feingold Act, the folks who wrote the checks, and Heston, LaPierre and Baker, as officers of the NRA, would be open to prosecution.
In short, the "coordination" sections of McCain-Feingold would kill grassroots political efforts as we know them today. How could you prove an NRA member-mailing in support of a friendly federal candidate was not coordinated if the standard were, "at the request or suggestion of, or pursuant to any general or particular understanding with, such candidate, the candidate`s authorized political committee, or their agents, or a political party committee or its agents?" That covers the political universe.
Try this: An NRA lobbyist attends a Congressional reception in Washington. A minor official of the national Democratic Party tells him in passing that Sen. X is in trouble. With a politicized, activist Justice Department, that could be seen as being a "suggestion."
The result of this is to force everything that issue advocacy groups now do on behalf of their members into the tight spending confines of Political Action Committees. In the 1970s "campaign reform" created PACs. A few years ago, the "campaign reform" of the moment was to get rid of PACs. Today it is to box in political activities--cram them into the smallest space, segregated and totally contained and controlled. This clearly is an attack on the First Amendment right of association.
The McCain-Feingold outright ban on issue advertising on any television or radio medium is just as crazy.
As introduced in January, McCain-Feingold exempted groups like NRA-ILA and PACs. The idea was to divide and conquer. The notion among "reform" strategists was, "Don`t worry about NRA, Christian Coalition, Sierra Club et al just now. They are too powerful, too intimidating. Take this a step at a time; get them later when they could be targeted as `islands of corruption` that still need to be cleansed from the political scene."
That thinking was shattered when Sen. Paul Wellstone, D-Minn., roared in with an amendment placing issue advocacy groups and PACs squarely under the heel of McCain-Feingold`s all-smothering strictures. Oddly enough, among those who gave us the horrors of S. 27, Wellstone was the most honest and most forthright. Where others created a mist of obfuscation using sweet words about progressive reforms, Wellstone told it like he believed it was.
Specifically mentioning the NRA, Wellstone told the Senate that "perhaps over $100-million was spent by independent groups trying to influence federal elections with sham ads during the 2000 cycle . . . More than 70 percent of these sham electioneering ads sponsored by groups are attack ads that denigrate a candidate`s image or character as opposed to two percent, the good news, of the candidate-sponsored ads." (emphasis added.)
"These groups are accountable to virtually no one, to nobody . . . Any group, any organization, any individual can finance any kind of ad they want." (emphasis added.)
Nobody could misunderstand Wellstone or what he was talking about; silencing independent political voices like yours--voices with which he disagrees. Who on earth would determine what is "good news" free speech, or "sham" free speech?" Perhaps a political grand inquisitor?
Wellstone`s words take what others argue as a "slippery slope" to the extreme. His amendment is the first step off a cliff.
That message is clear. McCain-Feingold means to chill--no, freeze--the process by instilling a real fear of government prosecutorial aggression
Because the ban on broadcast ads is triggered by the phrase, "refers to a clearly identified candidate for federal office,"McCain-Feingold is so dangerously all-inclusive that virtually any advertisement or communication aired by any issue advocacy group during the 30- and 60-day campaign blackout period would be banned.
NRA Members In The Crosshairs
Take a look at any possible NRA-ILA ads designed to benefit members through influencing an election and note how they might be construed to "refer" to a candidate. An NRA ad, run in New York, that presents a purely intellectual treatment of the Second Amendment without any specific reference to a candidate, in an election where gun control is an issue, could easily be construed as "referring" to a candidate. The NRA is for the Second Amendment . . . candidate Chuck Schumer wants to get rid of it. Blackout.
An ad for NRA`s Eddie Eagle GunSafe(tm) Program in an election where "gun safety" is an issue could be construed as obliquely "referring" to a candidate. NRA is for gun safety. So is candidate x. Blackout.
It`s nearly impossible to think of an advertisement that NRA could run on behalf of its members that an anti-firearms-rights administration couldn`t ban. Who decides? Some federal bureaucrat.
And it`s not just a ban on issue advertising the American people should fear. There is an unprecedented raw power behind the ban--those harsh criminal penalties.
Under McCain-Feingold, some very good people who work for you at the NRA could be sent to prison just for getting your views on television! It`s what free speech has come to--go to jail for spending money to tell the truth to the American people.
And there are hundreds of legal, honest, honorable things NRA does every day that could mean criminal prosecution and heavy fines under the Brave New World of John McCain and Russ Feingold.
Tough Scare Tactics
The penalty section of S. 27 also delegates broad powers to the United States Sentencing Commission to create new "guidelines" to provide sentencing enhancements and to stress the "serious nature of such violations and the need for aggressive and appropriate law enforcement action to prevent such violations." Note that it doesn`t say "punish violations," it says "prevent violations."
That message is clear. McCain-Feingold means to chill--no, freeze--the process by instilling a real fear of government prosecutorial aggression.
Except for the criminal penalties, the crushing McCain-Feingold stricture on expenditure of funds that affect political speech is identical in concept and intent to federal campaign spending laws that the United States Supreme Court declared unconstitutional in 1976. That case--Buckley v. Valeo (424 U.S. at 1)--has been cited in at least 20 lower court decisions upholding the principle that money spent in the exercise of free political speech is essential to free speech itself. Buckley declared that laws regulating money spent for "issue advocacy" served to "prohibit all individuals who are neither candidates nor owners of institutional press facilities, from voicing their views." (emphasis added.) The language struck down by Buckley was virtually identical to McCain-Feingold.
So where are the media? Where are those who piously practice their part of the First Amendment freedom? Answer: The big boys among them love McCain-Feingold.
The print media love it because the ban on broadcast issue ads will simply mean more ad revenue in their pockets. And network news--which considers its function to be "gatekeeper" of all information in America--loves it because they are specifically exempted from S. 27. What they really want is to be the only influence on voters during elections, and that`s what McCain-Feingold gives them.
Ironically, in their symbiotic relationship with McCain, the silencing of "issue advocates" is so important to the prime-time talking-heads that the national networks have blacked out all mention of First Amendment violations that strike at their own network affiliates and independent broadcast licensees.
McCain-Feingold would require individual broadcasters to provide the lowest ad rates to candidates for federal office, thus giving up their own free speech. Candidates who agree not to use the name of the opposition candidates in their advertising would get the cut rate. Attack your opponent, lose the cheap ads. What if you are simply pointing out verified facts about your opponent, such as his voting record on a particular issue? No matter. Be nice, censor yourself and get a break.
It`s the carrot-and-the-stick mentality. The only problem is that McCain-Feingold uses a stolen stick and a stolen carrot. The "time" broadcasters sell for advertising is their most precious commodity. It is theirproperty. Neither John McCain, nor his chief co-sponsor Russ Feingold, D-Wisc., have the power under the U.S. Constitution to take that time and cut its cost for those candidates who, in turn, give up their own free speech by following the limitations.
This is a kind of Eminent Domain over radio and tv time--"quick take," but with no day in court. Why not tell printers they have to produce campaign literature at a special low rate, or demand that airlines cough up special rates for selected compliant politicians?
If Dan Rather, Peter Jennings and Tom Brokaw don`t care about their broadcaster`s bottom line or their First Amendment freedom, their advertisers and affiliates ought to care a lot. With them, just as with issue advocacy groups, money is also necessary to the exercise of a free press. From every angle but that of big broadcasting interests, the First Amendment guarantees of freedom of the press are under attack by McCain-Feingold.
In his eloquent closing statement on the final debate, Sen. McConnell said:
"Each of us at one point in the well of the Senate raised our right hand and swore to uphold the Constitution of the United States. On 21 occasions in the last 26 years, efforts to restrict issue advocacy by outside groups have been struck down . . . This bill is fatally unconstitutional. I hope Senators will uphold the oaths they have taken . . ."
Sen. Phil Gramm, R-Tex, warned of other consequences of McCain-Feingold on the American political process: "If we limit the power of people to spend their money, we strengthen the power of people who exert influence in other ways. We don`t reduce power. We don`t reduce whatever corruptive influence may exist among the people who want to influence government. We simply take power away from some people and, by the very nature of the system, we give it to somebody else."
McCain said, "Do I believe that any law will prove effective over time? No, I do not."
McCain-Feingold was a sneak attack in the Senate, and that only works once. House Majority Whip Tom DeLay, R-Tex, thinks it can be stopped.
Rep. DeLay said McCain-Feingold stepped on "the Bill of Rights, all over our freedom of speech, all over our freedom of association. It is not reform; it`s incumbent protection." The Texas congressman will be tireless in his opposition.
All that April fast-track juggernaut talk from the McCain/big media spin machine assumes that the chaotic "power sharing" of the Senate will be matched in the House. Actually the dynamic there is entirely different.
McCain was led down a path by a Senate Democratic leadership that is doing all it can to keep the super-senator beholden. They are pushing to derail President George W. Bush`s chance for a second term. More importantly, they want a Senate Majority of radical Democrats, who would prove an unprecedented threat to the Second Amendment. John McCain is their Judas goat--leading the sheep to slaughter.
The 50-50 dynamic and the self-inflating super-senator don`t exist in the House. And the House rules are much more difficult to short-circuit.
Still, the spin machine keeps repeating the mantra that campaign finance reform has passed the House in previous sessions. That`s true, but not in the same form as McCain-Feingold--and not so that anybody would notice. Previous House legislation passed with the full assurance that it would die in the then Republican-dominated Senate. For some who voted for the concept, it was a grandstand vote--a throw-away for the benefit of "progressive" supporters. Now, with a real vote, the outcome could be different.
As with any important issue, freedom-loving Americans should make their voices known to their members of Congress. When the e-mail, snail-mail and telephone calls really begin to arrive in staggering numbers, the political atmosphere in the House will change. But only then.
The irony of ironies in the mess that John McCain has personally dumped on the American people is that he admits what he wants to fix may not even be broken, referring to what he calls "the abundant evidence of at least the appearance of corruption." In this case, appearance just isn`t good enough.
In his opening statement for the long floor debate, McCain said, "Do I believe that any law will prove effective over time?"
"No, I do not."
"Were we to pass this legislation today, I am sure that at some time in the future, hopefully many years from now, we will need to address some new circumvention."
The system isn`t broken, and John McCain`s "fix" will only destroy it. And in doing so, your voice, and that of other like-minded American citizens, will be cut out of the political process.
U.S. Senate Roll Call Votes Title: S. 27 As Amended
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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.