CLOSE THE SHAM ISSUE AD LOOPHOLE IN McCAIN-FEINGOLD
What does the amendment do? The Wellstone amendment would ensure that the sham issue ads run by interest groups fall under the same rules and prohibitions that McCain-Feingold rightly imposes on corporate and union sham issue ads. This would bring the scope of the sham issue ad ban in McCain-Feingold closer to that contained in Shays-Meehan. Specifically, the amendment adds a new section under title II of S. 27 that would apply the ban on using soft money for electioneering communication to those groups specifically exempted under Sec. 203 of the bill (501(c)(4) and 527 groups).
Why do special interest groups need to be covered? Fairness. Special interests should be required to follow the same rules as other groups (unions and corporations) when running sham issue ads. Limiting the ban just to corporations and labor will invite a shift in spending to non-profit groups in future elections, suggesting that in future years ñ even if this bill should pass Congress will be forced to revisit sham issue ad regulation to close yet another loophole in federal election law. Soft money is already being funneled through special interest groups. The Campaign Finance Institute Task Force on Disclosure estimated that perhaps over a $100 million was spent by independent groups trying to influence federal elections with sham issue ads during the 2000 cycle.
Is the Wellstone amendment constitutional?
The Wellstone amendment uses the same sham issue ad test (with some additional targeting) as the Snow-Jeffords language in the bill which is constitutional. The Snow-Jeffords test is a bright line test it is perfectly obvious on the face whether an ad falls under this definition. This means that there will be no chilling effect on protected speech a concern raised by the Supreme Court in the Buckley decision ñ because a group would be uncertain if an issue ad they intended to run would be covered or not. Also, the test is not overly broad. A comprehensive study conducted by the Brennan Center of ads run during the 1998 election found that only 2 genuine issue ads out of the hundreds run would have been inappropriately defined as a sham issue ad. A February 20, 1998 letter signed by 20 constitutional scholars, including a former legislative director of the ACLU, which analyzed the Snow-Jeffords provision on electioneering communication argued that even though the provision was written to exempt certain organizations from the ban on electioneering communication, such omission was not constitutionally necessary. The scholars noted that: ìThe careful crafting of the Snowe-Jeffords Amendment stands in stark contrast to the clumsy and sweeping prohibition that Congress originally drafted in FECA... Congress could, if it wished, apply the basic rules that currently govern electioneering to all spending that falls within this more realistic definition of electioneering. Congress could, for example, declare that only individuals and PACs (and the most grassroots of nonprofit corporations) could engage in electioneering that falls within this broadened definition. It could impose fund raising restrictions, prohibiting individuals from pooling large contributions toward such electioneering.î Finally, in the event of constitutional problems, the Wellstone amendment is fully severable.
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