The Wellstone Amendment to McCain-Feingold
Regulating Sham 'Issue Ads' is Constitutional
WASHINGTON - 04.02.01 | The Wellstone amendment to McCain-Feingold campaign finance legislation S. 27 (which passed earlier this week by a vote of 51-46) addressing the proliferation of sham . issue ads. , like the Snowe-Jeffords provision, is constitutional. The Wellstone provision tackles sham issue ads that are really designed to support or oppose congressional and presidential candidates, distinct from true issue ads such as the famous . Harry and Louise. ads opposing President Clinton's health care plan.
* The Wellstone Sham Issue Ad Provision
The Wellstone provision and Snowe-Jeffords measure together end the wholesale evasion of federal limitations on campaign contributions through the financing of phony issue ads. The two measures preserve the First Amendment right of free speech, but ensure that all advertising by special interests designed to influence an election is subjected to reasonable contribution limitations and that the sponsors of such ads are fully disclosed.
The Wellstone/Snowe-Jeffords provisions:
Define an electioneering communication as an advertisement which refers to a clearly identified federal candidate and is broadcast within 60 days of a general election or within 30 days of a primary election to an audience that includes voters in that election;
Ban funding of electioneering messages with special interest funds;
Require disclosure of electioneering communications above $10,000 and identification of donors of $1,000 or more.
Do not cover individuals, PACs funded with individual contributions, or mail and phone banks that, for example, conduct push-polling.
The Wellstone provision simply extends the Snowe-Jeffords ban on for-profit corporations and organized labor from funding sham issue ads to also cover electioneering by other interest groups, such as the NRA, the Sierra Club, the Christian Coalition and others. Specifically, the Wellstone amendment adds a new section under title II of S. 27 that would apply the ban on using soft money for electioneering communications to those groups specifically exempted under Sec. 203 of the bill: not-for-profit 501(c)(4) and 527 groups.
* Why Wellstone Is Constitutional
The Wellstone provision uses the same test of whether an issue ad is a true or sham one (with some additional targeting) as the Snow-Jeffords language contained within the McCain-Feingold bill, and which is constitutional. In fact, the additional Wellstone targeting language makes it more likely to survive a constitutional challenge. In the event of constitutional problems, however, the Wellstone amendment is fully severable from the rest of McCain-Feingold.
The Snow-Jeffords and the Wellstone test is a . bright line. test -- it is perfectly obvious, on its face, whether an ad falls under the . sham. definition. Thus there will be no "chilling effect" on protected speech . a concern raised by the Supreme Court in the Buckley decision . because a group would be uncertain if an issue ad they intended to run would be protected or not. 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.
* Constitutional Scholars Agree
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:
"The 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."
If one believes that the Wellstone amendment covers certain groups unconstitutionally, then one must also believe that the current Shays-Meehan bill and the version that was passed in the House of Representatives, and the 1997 version (and all previous versions) of McCain-Feingold are also unconstitutional . they cover the same groups as the Snowe-Jeffords and Wellstone provisions.
In September of 1999, Don Simon, then Executive Vice-President and General Counsel of Common Cause argued in a memo to all House members that Shays-Meehan is fully constitutional.
As Public Citizen has pointed out, the ban on soft money and addressing the phony issue ad loophole go together, hand in glove. Unless Congress takes steps to reclassify sham issue ads as campaign ads, the McCain-Feingold ban soft money will be much less effective in reducing the role of big money in politics. Special interest groups will spend huge amounts of corporate and other cash on political ads while concealing the identities of those paying for the ads. The political parties will send big givers to associated interest groups, or even initiate the proliferation of their own "separate" issue ad operations.
The Wellstone provision fixes this abuse of the way America finances its elections. Not only is it good policy, it is constitutional as well.
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