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Don’t Let Shays, Meehan Try to Close Reform ‘Loopholes’

Two years ago, when I was asked to testify before the House Administration Committee on what became the Bipartisan Campaign Reform Act of 2002 (Shays-Meehan/McCain-Feingold), my testimony began:

“Congress should take time to read the bills — and to understand them and their consequences. I am reminded of the situation a number of years ago when Jim Jones took his People’s Temple from San Francisco to Guyana — and got hundreds of people one day to drink poisonous Kool-Aid in a mass suicide. I’ve always wondered why someone didn’t look up and say, ‘Hey, what’s in this Kool-Aid?’ That’s what the House of Representatives must do — the Members of this body must say, ‘What’s in this campaign finance Kool-Aid?’”

Unfortunately, Congress failed to ask that question before passing the bill. Many Members who voted in favor of BCRA are just now learning the actual contents and implications of the law — and are appalled. Rep. Christopher Shays (R-Conn.), Sen. John McCain (R-Ariz.) and other authors of the law dismiss anyone who communicates the awful new realities of BCRA as “just those people who don’t believe in the bill.”

Not only have BCRA’s architects been sly about their legislation, Shays and Rep. Marty Meehan (D-Mass.) have now asked a federal court to overturn the Federal Election Commission’s newly promulgated regulations on, among other things, “coordinated expenditures,” in hopes of making BCRA’s prohibitions and restrictions even worse.

The FEC in early February defined “coordinated expenditures” as those made for a public communication (radio, TV, print advertisements, direct mail or telephone calls to 500 or more people) in the “state or district” of a federal officeholder or candidate by someone other than a candidate or political party (citizens’ groups and unions) within 120 days of a primary or general election at the “request” or “suggestion” of a federal candidate or political party or agent of either or using a common vendor or former employee of a candidate or after “substantial discussion” or material involvement with the federal candidate, party or agent. And that’s the simple explanation.

Any such expenditure becomes an in-kind “contribution” to a candidate or political party subject to the BCRA limits and prohibitions. Which means that any incorporated citizens organization (NARAL Pro-Choice America, National Rifle Association, Sierra Club, etc.) or labor union that makes expenditures lobbying Congress through public advocacy will be guilty of illegal campaign contributions if their communication is deemed by the FEC to be coordinated.

Yet Shays and Meehan argue that the regulations don’t go far enough.

The regulations now apply only to public communications made in the 120 days preceding a primary or a general election. Although that covers two-thirds of every election year, in the odd-numbered years, citizens and citizens’ organizations may engage in lobbying activities and grassroots organizing without having to worry about going to jail for inadvertently making illegal campaign contributions. Shays and Meehan want to eliminate the 120-day window and make all public communications subject to government enforcement, regardless of when in the Congressional session — or the election cycle — they occur.

The FEC’s regulations also include a “content standard” to provide a “bright line” test so citizens can know in advance what speech will bring their communications within the definition. Any reference to a federal officeholder or candidate, merely using the officeholder’s name in the title to legislation which bears his or her name, meets this “content standard.” References to “Shays-Meehan” or “McCain-Feingold” or “Sarbanes-Oxley” are sufficient mention of a candidate to sweep the communication into the coordination trap.

But Shays and Meehan in their lawsuit say the content standard creates “huge loopholes” because communications that “don’t refer to a political party or any identified federal candidate” aren’t covered. “Such advertisements and communications, by emphasizing issues and playing upon themes of concern to a candidate, may influence the outcome of an election even without mentioning a candidate or party by name.”

And, they argue, an agent of a candidate or officeholder should be anyone with “apparent authority” to act on his or her behalf — whether the “agent” has actual authority, express or implied — to do so.

Shays and Meehan want “coordination” to cover any communication, made at any time, saying anything about a public issue (it need not even mention a candidate) after contacts with just about any person who may be somehow connected to a federal officeholder, subjecting the spender and officeholder to criminal prosecution.

Don’t take my word for it. Read their lawsuit. And then ask if they are really serious about their latest cup of campaign finance

Cleta Mitchell is a political law attorney and partner in the law firm Foley & Lardner in Washington.

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