[Congressional Record Volume 144, Number 73 (Tuesday, June 9, 1998)]
[Extensions of Remarks]
[Pages E1075-E1077]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  AMERICANS DON'T NEED SPEECH NANNIES

                                 ______
                                 

                             HON. TOM DeLAY

                                of texas

                    in the house of representatives

                         Tuesday, June 9, 1998

  Mr. DeLAY. Mr. Speaker, I submit to the Record Douglas Johnson's 
insightful and valuable analysis of campaign regulation proposals and 
their impact on freedom of speech. I hope my colleagues will examine it 
prior to supporting so-called campaign ``reform'' measures.

           [From National Right to Life News, Sept. 30, 1997]

                Do American Voters Need Speech Nannies?

                          (By Douglas Johnson)

       Many incumbent members of Congress are eager to provide 
     America's voters with a new government service--a federal law 
     to protect them from messages about politicians that may 
     ``manipulate'' simple-minded voters, especially those 
     communications that are ``negative'' in tone, or that will 
     result in ``unhealthy'' debate.
       Yes, if Senator John McCain, Senator Russ Feingold, Common 
     Cause, and their allies get their way, federal legislators, 
     political appointees, and FEC career speech regulators will 
     become the political speech nannies for the rest of us. They 
     will do their utmost to shield their fellow citizens from an 
     excess of information and claims about politicians--
     conflicting messages that may confuse and befuddle them, or 
     even trick them into voting for the ``wrong'' candidates.
       If you do not regard yourself as being in need of such a 
     service from your government, then maybe it's time for you to 
     take a closer look at the McCain-Feingold bill. The latest 
     revision, currently on the Senate floor, contains speech-
     nanny provisions that are even stronger than those found in 
     earlier versions, and astonishing in their brazenness.
       In recent days, the media have reported that the new bill 
     would restrict broadcast ads that mention candidates within 
     60 days of an election. However, the bill actually contains 
     multiple speech restrictions that sweep far more broadly than 
     the 60-day provision.
       The other, less publicized provisions encompass both print 
     and broadcast communications--and apply year around. The bill 
     would generally prohibit unions and corporations--including 
     issue-advocacy groups such as National Right to Life, the 
     ACLU, or the Sierra Club--from paying for communications to 
     the public at any time of the year that federal regulators 
     consider to be ``for the purpose of influencing a federal 
     election,'' if the sponsoring organization is deemed to have 
     any of ten broad categories of links (direct or indirect, 
     actual or presumed) to a candidate, including the mere 
     sharing of professional vendors. ``Candidate'' includes 
     all incumbent members of Congress, unless they have 
     announced their retirement, starting the day after any 
     election.


                 And ``Exception'' That Proves the Rule

       Sen. McCain has made much of what he calls an ``exception'' 
     which he claims would protect the right to disseminate 
     certain printed information about the voting records of 
     Members of Congress and the positions of candidates, 
     including so-called ``voter-guides.''
       Actually, however, the so-called ``exception'' amounts to 
     an elaborate set of ``speech specifications,'' spelling out 
     what type of information on politicians' votes and positions

[[Page E1076]]

     the Congress would deign to permit. Among other 
     specifications, such printed material would be verboten 
     unless it is solely presented ``in an educational manner,'' 
     which is federal speech-regulation jargon meaning ``no 
     explicit or implicit value judgments allowed.'' The bill also 
     contains an additional requirement that the communication 
     must not contain ``words that in context can have no 
     reasonable meaning other than to urge the election or defeat 
     of one or more clearly identified candidates.''
       This so-called ``exception'' would really operate as a ban 
     on the sort of congressional voting ``scorecards'' and voter 
     guides that are commonly disseminated by many issue-oriented 
     citizen groups and unions. Typically, such materials reflect 
     a viewpoint on the issues covered by the scorecard or voter 
     guide. This viewpoint may be evident, for example, in the 
     selection of issues and the way that they are characterized, 
     through ``positive'' or ``negative'' rates of ``grades,'' and 
     through explicit commentary.
       Such commentary is not an ``abuse'' or ``evasion'' of 
     federal law. Rather, it is fully protected by the First 
     Amendment, which is not a ``loophole'' but, among other 
     things, the nation's paramount ``election law.''
       Under the so-called ``exception,'' however, a citizens' 
     group such as NRLC, Inc., could not at any time of the year 
     issue a brochure that contains the value-laden statement, 
     ``On May 20, 1997, Senator Russ Feingold voted to allow the 
     brutal partial-birth abortion procedure to remain legal,'' 
     without risk of facing an FEC investigation for engaging in 
     advocacy against and ``candidate.'' In addition, for 60 days 
     before the primary or general election, NRLC, Inc., could not 
     run an ad on the radio or TV that said simply, ``Senator 
     Russ Feingold voted against the Partial-Birth Abortion Ban 
     Act, H.R. 1122, on May 20, 1997.''
       Isn't this really ``incumbent protection,'' big time? One 
     of the few disadvantages of being an incumbent is the 
     possibility of being called upon to defend one's actual votes 
     on any of hundreds of issues. But the incumbents will have to 
     do a lot less such defending, if the McCain-Feingold speech 
     restrictions were in effect.
       These restrictions would apply even to communications that 
     ask citizens to take action with respect to approaching votes 
     on critical issues in Congress. For example, prior to the 
     September, 1996 votes in the U.S. House and U.S. Senate on 
     whether to override President Clinton's veto of the Partial-
     Birth Abortion Ban Act, NRLC published brochures that asked 
     readers to contact specific members of Congress (i.e., 
     ``candidates'') who had previously voted against the bill in 
     order to urge them to switch sides and vote to override the 
     veto. Some did so. Other groups ran TV ads with similar 
     messages.


                          Only PACs Can Speak

       Under the bill, it would remain lawful for a Political 
     Action Committees (PAC) to utter the name or depict the 
     likeness of a candidate before an election, so long as the 
     PAC was able to avoid inadvertently violating the bill's 
     Byzantine provisions defining impermissible ``coordination,'' 
     which include such things as merely paying for ``the 
     professional services of any person that has provided or is 
     providing campaign-related services in the same election 
     cycle'' to a candidate who the PAC wishes to support. Running 
     afoul of these ``coordination'' rules automatically limits 
     the PAC's speech on behalf of a candidate to $5,000.
       A law that allows only PACs (and the news media) to speak 
     about politicians would silence countless citizens' groups 
     across the nation that do not have the resources to meet the 
     complex regulatory demands that are involved in operating a 
     PAC (e.g., hiring accountants and lawyers with expertise in 
     federal election law, filing complex reports, reporting the 
     names and occupations of donors to the government, etc.).
       Moreover, even groups that have connected PACs, such as 
     NRLC, would be able to engage in far less politician-specific 
     speech than now, which is precisely the goal of the speech-
     regulators. Current law places stringent rationing 
     restrictions on PACs. Such PACs may solicit and accept 
     donations only from individual members, donations are 
     limited to $5,000, and the names of all donors of over 
     $200 (under the bill, $50) must be reported to the 
     government, among other restrictions.
       However, the Supreme Court has held that such government 
     regulations may be applied only to communications that 
     contain explicit words urging a vote for or against a 
     candidate. The Court has held that ``issue advocacy''--
     meaning citizen groups' commentary on politicians and their 
     positions on issues--is core political expression and enjoys 
     the highest degree of immunity under the First Amendment.
       The Supreme Court's decisions do not allow this definition 
     to be adjusted by federal or state legislative bodies, 
     because that would allow precisely what is being attempted 
     now--government control of the content and the amount of 
     speech regarding the matters that are at the very core of the 
     First Amendment's protections.
       The Supreme Court did not adopt its narrow definition of 
     ``express advocacy'' based on some native misperception that 
     only messages that explicitly urge a ``vote for'' or ``vote 
     against'' a specific candidate would influence voters. 
     Rather, the Court explicitly recognized that many other types 
     of speech regarding the merits of the positions and votes of 
     candidates may sway voters (that's why they're called ``voter 
     guides''), but rejected limitations on such speech as alien 
     to the First Amendment.
       As the Court said in Buckley v. Valeo, ``As long as persons 
     and groups eschew expenditures that in express terms advocate 
     the election or defeat of a clearly identified candidate, 
     they are free to spend as much as they want to promote the 
     candidate and his views.'' [emphasis added] But under the 
     McCain-Feingold bill, they cannot ``spend as much as they 
     want to promote the candidate and his views''--or even 
     mention his name on the radio.


                      Controlling Political Debate

       Many of the arguments being offered to justify restrictions 
     on private speech about politicians seem to flow from a 
     preconception that certain political elites should define the 
     proper parameters for political discourse--by force of law.
       Burt Neuborne, legal director the Brennan Center for 
     Justice (an organization devoted to seeking the overruling of 
     Buckley v Valeo), displayed this elitist mindset at a 
     February 27 hearing before the House Judiciary Constitution 
     Subcommittee. Neuborne commended the panel's 
     chairman, Congressman Charles Canady (R-Fl.), ``for the 
     disciplined way the hearing has been run, and how 
     carefully you maintained the ground rules that allowed 
     real free speech to come out here. And I'm really saying 
     that the same idea has to be thought of in the electorial 
     process. * * * In a courtroom speech is controlled. In 
     this room speech is controlled, and the net result is good 
     speech.''
       Here, indeed, is a new vision of democracy--elections in 
     which the government sits on high as a judge, decreeing who 
     will speak, at what time, and for how long.
       Or consider the words of Sen. McCain himself, who explained 
     on September 26, ``These groups run ads that even the 
     candidates who benefit from them often disapprove of. 
     Further, these ads are almost always negative attacks on a 
     candidate and do little to further healthy political 
     debate.'' [emphasis added]
       Where does Sen. McCain think he gets the authority to 
     suppress commentary on politicians that he considers 
     ``negative'' or ``unhealthy''? And does he really imagine 
     that it is constitutionally relevant whether or not 
     candidates ``disapprove of'' the speech of citizens' groups?
       Even more haughty are the words of Congressman Scotty 
     Baesler (D-Ky.), who says that unless restrictions are placed 
     on independent communications, ``the candidate risks losing 
     control over the tone, clarity, and content of his or her own 
     campaign.``
       Whatever gave Mr. Baesler the outlandish notion that he has 
     authority to control the tone or content of the debate that 
     precedes an election? Elections are not the sole property of 
     the candidates. The right to seek to persuade fellow citizens 
     of what issues they should weigh heavily at election time is 
     as fundamental as the right to vote itself. As the U.S. Court 
     of Appeals for the Second Circuit put it in FEC v. CLITRIM--
     one of the innumerable federal court decisions striking down 
     various speech regulation schemes put forward by the Federal 
     Election Commission--``the right to speak out at election 
     time is one of the most zealously protected under the 
     Constitution.''


                          Protect the Dimwits?

       We are told that ads and voters guides put out by citizens' 
     groups influence elections''--but just what does that mean? 
     After all, none of the communications being debated--voter 
     guides, scorecards, TV ads--can ``influence elections'' at 
     all, except to the extent that they are given weight by 
     registered voters.
       Doesn't our constitutional system of government ultimately 
     rest on the general premise that these people--grownups, 
     American citizens--should be allowed to sort out the 
     competing political messages (including those presented by 
     the news media) without government-imposed filters or 
     government-imposed counterspeech?
       Restrictions on speech such as those contained in the 
     McCain-Feingold bill seem to grow out of a ``protect-the-
     dimwits'' mindset--a usually unspoken premise among many 
     members of certain political and media elites that we need 
     laws to protect the poor perplexed voters from being 
     manipulated by independent political voices.
       For example: in an August 19 interview on CNN, Alan Baron, 
     chief Democratic counsel for the campaign finance 
     investigation of Sen. Fred Thompson's Governmental Affairs 
     Committee, suggested that there is something improper or 
     illicit about the voter guides that the Christian Coalition 
     distributes by the millions. These leaflets typically 
     summarize the positions of two or more candidates on from 
     five to fifteen issues.
       These voter guides ``are manipulated,'' Mr. Baron 
     complained. ``Certain issues are emphasized in one election 
     and then deemphasized in another election. They are clearly 
     intended--based on everything I have discovered about them--
     they are intended to manipulate the voter into voting a 
     certain way, usually for very conservative Republican 
     candidates.''
       (This is pretty sinister stuff--``manipulating'' voters 
     into looking more favorably on certain types of candidates by 
     talking about their positions on certain issues and not other 
     issues. What will happen if the AFL-CIO, Handgun Control, the 
     Sierra Club, and the National Abortion and Reproductive

[[Page E1077]]

     Rights Action League--or, for that matter, the League of 
     Women Voters--find out about this trick?)
       Clearly, in Mr. Baron's eyes, the Christian Coalition voter 
     guides ``in context can have no reasonable meaning other than 
     to urge the election or defeat of one or more clearly 
     identified candidates,'' and are deficient in maintaining the 
     proper ``educational manner'' that would be required by law 
     under the McCain-Feingold bill.
       But mind you, when Mr. Baron says that the Christian 
     Coalition's voter guides ``manipulate voters,'' he does not 
     mean sophisticated voters such as himself. No, if a smart 
     Washington insider like Mr. Baron received a Christian 
     Coalition voter guide, he would decide whether or not the 
     issues discussed were the issues he considered salient, 
     compare the information presented there to the information 
     available from other sources, and reach his own judgment. 
     But there are so many other voters out there in the 
     hinterlands who Mr. Baron knows lack his powers of 
     discernment, and it is they who are in need of the speech 
     nannies that McCain-Feingold would provide.
       This is a very steep and slippery slope. Those who hold or 
     seek office are human, which means they don't like to be 
     criticized. If speech-regulating legislators can get the 
     courts to back off and use legal restrictions to reduce the 
     amount of unpleasant stimuli to which they are subjected--and 
     be applauded for their unselfish ``reform'' efforts to boot--
     we can expect that the scope and duration such restrictions 
     will rapidly expand in all directions.
       For example, Congressman Sam Farr (D-Ca.), author of the 
     ``campaign reform'' bill sponsored by the House Democratic 
     leadership, wrote that ``material that is written in such a 
     way that the recipient is left with the clear impression that 
     the material advocates support or defeat of a particular 
     political candidate or party--even without naming that 
     candidate or party--would constitute express advocacy and 
     would fall under the scope of campaign expenditure laws.` 
     (emphasis added)
       In the same vein, Senator Max Cleland (D-Ga.) recently 
     complained to the Associated Press about what he call 
     ``independent expenditure'' ads on TV that asked his 
     constituents to urge him to vote for the Partial-Birth 
     Abortion Ban Act, shortly before the Senate passed the bill 
     on May 20. (He didn't.) These ads demonstrated the need for 
     ``campaign reform'' legislation such as the McCain-Feingold 
     bill, Sen. Cleland fumed. Sen. Cleland is not up for re-
     election for 5\1/2\ years.
       On ABC This Week for September 28, George Will asked 
     Democratic National Committee General Chairman Roy Romer if 
     the National Right to Life Committee should be able to buy 
     pre-election newspaper ads that decry partial-birth 
     abortions, if the ads do not name a candidate. The Colorado 
     governor replied, ``I think you ought to separate that from 
     the time of the election. You've got twelve months during a 
     year.'' Only when challenged by an incredulous Will did Romer 
     graciously allow that ``if it doesn't mention the candidate's 
     name, you could probably leave it unregulated.''
       Rather than go down this path, we should heed the words of 
     the Supreme Court in Buckley v. Valeo: ``In the free society 
     ordained by our Constitution it is not the government, but 
     the people--individually as citizens and candidates and 
     collectively as associations and political committees--who 
     must retain control over the quantity and range of debate on 
     public issues in a political campaign.''
       In other words, let's respect our elected officials and the 
     demanding offices that they hold. But let's not be such 
     dimwits that we allow them to start telling us when, how, or 
     how much we can talk about their voting records.

     

                          ____________________