Thursday, February 22, 2001
Contact: James Bopp, Jr., General Counsel
phone 812-232-2434, fax 812-235-3685
jboppjr@abcs.com, madisoncenter@aol.com

James Madison Center Analysis: New McCain-Feingold Bill Contains Multiple Provisions That Violate First Amendment Rights of Average Citizens To Participate in Political Process

The latest version of the McCain-Feingold bill "is a broad-based and pernicious attack on the rights of average citizens to participate in the democratic process, thereby enhancing the power of already powerful wealthy individuals, millionaire candidates, and large news corporations," according to a detailed analysis of the bill released today by the James Madison Center for Free Speech.

The Madison Center is a public interest organization that defends the rights of citizens to participate in our democracy. The analysis was written by Madison Center General Counsel James Bopp, Jr., who has directed 52 cases challenging state and federal election laws on First Amendment grounds, with a 91% win rate on completed cases (including eight straight successful cases against the FEC). In a cover story in the February 17 issue of National Journal, Lawrence E. Gold, associate general counsel of the AFL-CIO, is quoted as saying, "The impact he [Mr. Bopp] is having on behalf of his clients is one of the most important, under-reported developments of national election law."

The Madison Center analysis rebuts claims by McCain-Feingold advocates that the bill would diminish the influence of "money" in politics without impeding free speech. The analysis directly contrasts various provisions of the bill with quotes from past decisions of the U.S. Supreme Court and other federal courts that have established broad First Amendment protection for communications regarding political figures, and concludes, "This bill shakes a fist at the First Amendment; if passed it is destined for a court-ordered funeral."

The analysis notes, "Average citizens must pool their resources to have an effect in the political sphere of issue advocacy, lobbying, and electoral activity. The wealthy and powerful have no such need. So ordinary people band together in ideological corporations, labor unions, and political parties to amplify their voices. . . . McCain-Feingold 2001, however, would suppress this ability, along with the foundational constitutional right to free speech."

The analysis examines in detail the provisions of the bill dealing with so-called "electioneering communications," through which extensive restrictions are triggered by the mere mentioning of a federal politician's name - restrictions that violate numerous federal court rulings.

Even more sweeping is the bill's definition of "coordinated activity," which places year-round restrictions on the right of groups to communicate with the public about the federal politicians, by any method (print, broadcast, telephone, etc.), even regarding upcoming votes in Congress. This expansive and vague definition would chill political speech by placing groups constantly at risk of expensive investigations if they express opinions about politicians. The analysis notes: "Particularly in Washington, D.C., the punishment is in the process. Any organization that does something that could be deemed 'of value' to a candidate can expect to be the subject of an FEC complaint and investigation to ferret out whether the activity was 'coordinated.' Thus, publicly praising an officeholder for her vote on a bill invites investigation by the FEC. Daring to tell constituents to get an incumbent to change his position on an upcoming vote could provoke an FEC investigation."

The Madison Center memo also proposes three reforms for consideration by Congress: increase limits for contributions to candidates and parties; establish tax credits for contributions of up to $250 per year to candidates, parties, or PACs; and address the "McCain disclosure loophole." The last refers to the episode in which Senator McCain's campaign (with McCain's authorization) transmitted an anonymous recorded telephone message, suggesting that George W. Bush had anti-Catholic associations, to tens of thousands of Michigan households prior to that state's presidential primary, while at the same time denying that it was responsible for these anonymous attacks.

The entire 32-page analysis is posted on the Madison Center website at www.jamesmadisoncenter.org in PDF format (requires Adobe Acrobat).  Click Here.  The document may also be obtained as an e-mail attachment by sending a request to madisoncenter@aol.com (please specific preference for PDF, WordPerfect or Microsoft Word).