The desire of supporters of campaign finance reform to "clean up politics" is laudable. However, the means chosen in The Bipartisan Campaign Reform Act of 2001, S. 27, 107th Cong. (2001), known as "McCain-Feingold," unfortunately run afoul of established free speech principles. In particular, provisions of McCain-Feingold unconstitutionally restrict the independent political speech of associations of all kinds, including for-profit and not-for-profit corporations, labor unions, trade associations, and unincorporated associations, as well as the political activities of individuals.

In an effort to shed light on the profound First Amendment issues at stake here, this paper focuses on the degree to which McCain-Feingold violates the rights of groups and individuals to state their views about political candidates and political issues, in close proximity to campaigns and otherwise. These are among the most clearly unconstitutional provisions of the bill. Other obviously self-serving provisions, such as the vast expansion of the rights of candidates (but not their critics) to buy media ad time for the "lowest-unit charge" those media command, are left to other fora.

I. What the Bill Does

A threshold problem with McCain-Feingold is its sheer complexity. Given that violating its provisions could involve criminal sanctions, this complexity creates its own set of constitutional issues. See generally Erznoznik v. Jacksonville, 422 U.S. 205, 217 (1975). Moreover, the bill's complexity makes it hard to explain, and consequently difficult to attack. Nonetheless, as confusing as McCain-Feingold may be, careful study of the bill is worthwhile. In fact, McCain-Feingold may just be one of the most far-reaching acts Congress has ever passed. If the restrictions on speech by private entities are sustained by the courts - which, for the reasons explained below, is almost impossible to imagine - McCain-Feingold would radically limit the ability of Americans to join with others to express their views about political candidates and political issues.

1. Banning "electioneering communications." McCain-Feingold restricts the rights of associations of all kinds, such as labor unions, corporations (profit and nonprofit alike), trade and member associations, as well as other groups, to state their views about political issues if a candidate is mentioned within two months of an election. Specifically, such entities are prohibited from making any "electioneering communications." These are defined as "any broadcast, cable, or satellite communication[s]" to "members of the electorate" that refer "to a clearly identified candidate for Federal office" made within 60 days of a general election or 30 days of a primary election. S. 27 § 201. This would cover any ad that uses a candidate's name or image.

2. Reporting requirements on individuals and PACs. The few entities not banned from running ads mentioning candidates within 60 days of an election, as well as individuals, are subjected to onerous disclosure requirements. Under McCain-Feingold, any individual or PAC spending more than $10,000 per year (in many markets, less than the cost of one TV ad) on ads must file reports with the Federal Election Commission (FEC). These reports must reveal every payment of more than $200 and must also disclose to whom the payment was made. What is worse, the reports must provide the name and address of every donor who gave that organization more than $1,000 during the year. The reporting obligation kicks in as soon as a contract is made to pay the monies, not when the $10,000 is spent. Of course, in the case of creating and running a TV ad, this could be months before any payment has been made.

3. Banning payments for "coordinated expenditures," as broadly defined. McCain-Feingold also forbids most associations from paying for "coordinated expenditures," a term of art that is broadly defined. Such activities are treated as forbidden contributions. The problem is that such expenditures include almost any independent activity potentially of value to a candidate. McCain-Feingold delegates to the FEC the task of further defining "coordination." However, the bill bars the FEC from defining coordination to mean collaboration, requiring coordination to be defined far more broadly. The plain intent of the bill is to bar independent activities that benefit candidates, even if there is no communication between the campaign and the independent entity.

II. Constitutional Analysis

The Supreme Court has consistently held that speech endorsing candidates "is at the core of our electoral process and of our First Amendment freedoms." Williams v. Rhodes, 393 U.S. 23, 32 (1968). The Court has similarly recognized that "debate on the qualifications of candidates [is] integral to the operation of the system of government established by the Constitution." Buckley, 424 U.S. at 14. In fact, as noted above, the First Amendment "has its fullest and most urgent application" to speech made during a campaign for public office. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).

Given the importance of the political speech at issue here, the restrictions on such independent speech in McCain-Feingold will be subject to the strictest scrutiny the Court employs. Specifically, the government will have to show that these restrictions are the least restrictive means possible to advance a compelling governmental interest. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 347 (1995). This is a stringent test, one that is rarely met. Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1986) ("strict scrutiny review is 'strict' in theory but usually 'fatal' in fact") (citation omitted).

The Supreme Court has consistently required the government to prove that the harms it seeks to combat are real and based on solid evidence of a problem. Mere speculation and conjecture are not enough. See, e.g., Ibanez v. Florida Dep't of Bus. & Professional Regulation, 512 U.S. 136, 143 (1994). Yet McCain-Feingold cites no record to justify these sweeping restrictions on independent expression. Although there has been much talk about "corruption," the bill and the legislative record reveal little solid evidence of any corruption flowing from independent speech. Certainly there is nothing in this 86-page bill to suggest so dangerous a situation as to warrant these unprecedented limits on political speech.

Indeed, in FEC v. Colorado Republican Federal Campaign Committee, 518 U.S. 604 (1996) (hereinafter "Colorado Republican"), currently pending for a second time before the U.S. Supreme Court, the FEC had more than a year and a half to show that politicians were corrupted by the prospect of receiving financial support from their political parties. Not only did the FEC fail to produce any evidence of such corruption, but the two politicians deposed in that case, former senators Paul Simon and Tim Wirth, each denied under oath that they had ever been subjected to corruption or untoward influence by the party with which they chose to associate. In fact, neither senator could identify any member of either party who had been corrupted by his or her party. Brief for Respondent at 6, Colorado Republican, (U.S. 2001) (No. 00-191). There is even less reason to believe that members of Congress are corrupted by their associations with independent entities, or by those entities' independently made judgments to undertake political communications.

This is not to deny that campaign contributors get the attention of politicians. Certainly they do. But Congress has not produced any such evidence with respect to independent political speech, which it must do to justify these sweeping restrictions on such speech.

Moreover, these restrictions do not satisfy the requirement that they be the least restrictive means possible of achieving their objective, for at least two reasons. Most importantly, restricting TV ads does nothing to stem the flow of money into politics or the ability of independent organizations to "do favors" for candidates. McCain-Feingold does not (and likely could not) limit direct mail, phone banks, or newspaper and magazine ads, which advocacy groups could still em-ploy. Accordingly, there is no evidentiary basis for believing that the bill would achieve its objective. Also, the breadth of the bill, sweeping up all kinds of communications and applying to all kinds of groups, makes it far too broad to pass muster as sufficiently narrowly tailored. See FEC v. Nat'l Conservative PAC, 470 U.S. 480, 498-99 (1984) (hereinafter "NCPAC").

A. The ban on ads mentioning candidates within 60 days of an election

McCain-Feingold would ban any political ad mentioning a candidate within 60 days of a campaign, whether run by nonprofit, ideological corporations such as the NRA, NARAL, and ACLU, by trade associations such as the AMA, by chambers of commerce, by labor unions, or by for-profit corporations. Such a blanket ban ignores the Supreme Court's protection of ads addressing political issues, which, the High Court has recognized, are inextricably bound up with candidates and campaigns. Specifically, in Buckley, 424 U.S. at 33, 80, the Supreme Court invalidated limits on independently funded speech made "relative to a clearly identified candidate," or "for the purpose of influencing the nomination or election of candidates for public office." The Court recognized the ephemeral differences between issue and candidate advocacy, saying that:

[T]he distinction between discussion of issues and candidates and advocacy of the election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. Id. at 42-43.

To protect this issue advocacy, the Court formulated a bright-line rule known as the "express advocacy" test. That test allows the government to regulate only communications that, in "explicit words" or by "express terms, advocate the defeat of a clearly identified candidate." Id. at 43, 44. Indeed, the Court gave examples of such "express terms" - "'vote for,' 'elect,' 'sup-port,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" Id. at n.52.

McCain-Feingold's ban on independent electioneering communications goes far beyond a ban on express advocacy. In so doing, the law clearly restricts the ability of a variety of associations to convey their political views on issues of public importance. In American politics, candidates, campaigns, and issues are inextricably bound up together. Bills that come to identify issues are even known by the names of politicians. This has always been the case. Our key labor laws are known as the Norris-LaGuardia Act, after Senators George Norris and Congressman Fiorello LaGuardia, and the Wagner Act, after Senator Robert Wagner. Our anti-trust law is called the Sherman Act, after Senator John Sherman. The restriction on federal abortion funding is known as the Hyde Amendment, after Congressman Henry Hyde. And, of course, the synonym for cam-paign finance reform is "McCain-Feingold."

To prohibit independent political communications that "refer to a clearly identified [federal] candidate" within 60 days of an election would dramatically hamper the ability of the affected entities to communicate clearly about issues important to them and to the public. Moreover, it is perverse to prohibit any communications about candidates during precisely the period when people are most paying attention, and when the messages are most likely to be meaningful. As the Supreme Court said in Buckley, "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Buckley, 424 U.S. at 14 (citation omitted).

Similarly, in Mills v. Alabama, 384 U.S. 214 (1966), the Court invalidated a state law proscribing electioneering and soliciting votes on election day. The Court concluded that "[i]t is difficult to conceive of a more obvious and flagrant abridgment of ... constitutionally" protected free speech rights than a law that silences independent political speech "at a time when it can be most effective." Id. at 219. That ban was for one day - this ban is for 60 days.

"So 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." Buckley, 424 U.S. at 43 n.50. The interest in combating corruption, real or perceived, is not sufficient to warrant limits on independent issue advocacy, even though these kinds of communications in theory can be abused to obtain improper benefits from candidates. Id. at 45. As the Supreme Court put it in another case:

Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors. But here the conduct proscribed is not contributions to the candidate, but independent expenditures in support of the candidate.... NCPAC, 470 U.S. at 497.

Indeed, the restrictions on independent electioneering communications are squarely precluded by NCPAC as well. There, the Supreme Court struck down a law making it a crime for any independent political committee to spend more than $1,000 to further the election of a candidate who accepted public funding. Id. at 501. The law applied to any organization that collected or spent any money to influence the nomination or election of a candidate to political office. Id. at 491-92.

Here, just as in NCPAC, any "exchange of political favors for uncoordinated expenditures remains a hypothetical possibility and nothing more." Id. at 498. Such a "hypothetical possibility" is patently insufficient to prohibit the NRA or the AFL-CIO, among others, from expressing their views on political issues within two months of an election, even if they happen to mention a candidate.

To the extent that Congress is here motivated by a desire to equalize voices, that is a forbidden justification as well. As the Supreme Court famously said in Buckley, 424 U.S. at 48-49 (citations omitted):

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure "the widest possible dissemination of information from diverse and antagonistic sources," and "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

Moreover, any such equalization effort is doomed to fail. Bradley Smith, Unfree Speech: The Folly of Campaign Finance Reform 196-99 (2001).

Some might claim that certain forms of associations, such as corporations and political parties, present unique dangers. With respect to nonprofit, ideological corporations, the Supreme Court considered and rejected that argument in NCPAC, denying that the "form of organization ... diminish[ed] their entitlement to First Amendment protection." NCPAC, 470 U.S. at 494. To the contrary, the Court said that "the First Amendment freedom of association is squarely implicated" where restrictions are placed on "mechanisms by which large numbers of individuals of modest means can join together in organizations which serve to amplify the voice of their adherents." Id. at 494 (citations and brackets omitted).

Nonprofit, ideological corporations, membership associations, and trade associations differ dramatically from traditional corporations organized for economic gain. Often, the resources such a nonprofit "has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace." FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 259 (1986) (hereinafter "MCFL"). "[I]ndividuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction." Id. at 261. "The concerns underlying the regulation of corporate political activity are simply absent with regard to" nonprofit, ideological corpora-tions. Id. at 263.

In short, many of the associations whose speech is limited by McCain-Feingold "have features more akin to voluntary business associations than business firms, and therefore should not bear burdens on independent spending because of their incorporated status." Id. at 263.

Even business firms, however, have important constitutional rights, which McCain-Feingold violates. First National Bank v. Bellotti, 435 U.S. 765, 777 (1978). In Bellotti, the Supreme Court recognized the First Amendment rights of business corporations to engage in issue advocacy (although the Court later upheld a restriction on express advocacy by for-profit corporations). However, by banning independent political speech that happens to allude to a candidate, McCain-Feingold falls outside the scope of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and directly transgresses the rule of Bellotti.

Similarly, the Court has held that independent speech by political parties enjoys broad First Amendment protection:

A political party's independent expression not only reflects its members' views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure. The independent expression of a political party's views is "core" First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees. Colorado Republican, 518 U.S. at 615-16 (citation omitted).

"To say that collective action in pooling [contributors'] resources to amplify their voices is not entitled to First Amendment protection would subordinate the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources." NCPAC, 480 U.S. at 495. Thus, the paradox of McCain-Feingold is that, although its proponents claim to want to empower the "little guy" against the "monied interests," they have adopted a scheme that, if implemented, is likely to have precisely the opposite effect. Such a scheme is bound to fail under the requirement that a limitation on speech be the least restrictive means of advancing the government's stated interest. In actuality, McCain-Feingold is likely to thwart the government's asserted interests.

B. The disclosure requirements imposed on individuals and PACs

The requirement that any individual or PAC spending $10,000 or more on independent ads mentioning a candidate within 60 days of an election disclose the identity of all donors, as well as much about other business dealings, violates established free association rights. As the Supreme Court said in McIntyre, 514 U.S. at 357, "anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression - at the hands of an intolerant society."

The tradition of anonymous political communication and activity stretches back even further than the use of the pseudonym "Publius" by James Madison, Alexander Hamilton, and John Jay to write the Federalist Papers. But that example should suffice to illustrate the value of anonymity in connection with political communications. To take more mundane, modern-day examples, one can well imagine Hollywood actors who prefer to keep private their donations to the NRA or the National Right to Life Committee, while employees of some corporations may want to keep private their donations to Public Citizen or NRDC. Buckley, 424 U.S. at 237 (Burger, C.J., concurring in part and dissenting in part) ("rank-and-file union members or rising junior executives may now think twice before making even modest contributions to a candidate who is disfavored by the union or management hierarchy").

Yet this bill would establish that the "price" of meaningful and effective contributions to political debate - which could well cost more than $10,000 - is making public one's list of donors. The Supreme Court has often rejected efforts at compelled disclosure, as in NAACP v. Alabama, 357 U.S. 449 (1958) (holding that implicit in the right of association is the right of privacy in that association); see also Gibson v. Florida Legislative Committee, 372 U.S. 539 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961); Bates v. Little Rock, 361 U.S. 516 (1960).

The fear of corruption may, as the Supreme Court suggested in Buckley, warrant requiring contributors to political campaigns to disclose their identities. Moreover, the need to guard against "end-runs" around contribution limits may well warrant some disclosures even on independently generated ads expressly advocating the election or defeat of a particular candidate. But McCain-Feingold extends this disclosure regime far beyond contributors to campaigns, exposing to public scrutiny virtually anyone who wants his or her voice to be effectively heard.

The potential for mischief is compounded by the notion that an expenditure is considered made, and therefore must be disclosed, within 24 hours after a commitment is made for that expenditure. As others have noted, this disclosure puts a candidate on notice (often months in advance) that an ad will be run mentioning him or her, giving the candidate a chance to respond. What is worse, the candidate is afforded an opportunity to use his or her power to try to suppress that communication either by pressuring the media outlet or the independent entity itself.

Individuals who want to express themselves on the issues of the day should not be forced to expose their every move to the public merely because they want to run an ad that mentions a candidate. Such a rule opens them to official retaliation and pressure, directly trenching on their rights of speech and association.

C. The expansion of the ban on coordinated activity to reach independent advocacy

To avoid evasions on the (constitutional) contribution limits, the Supreme Court has allowed restrictions on coordinated activity between unregulated independent entities and regulated entities such as political candidates. Buckley, 424 U.S. at 46-47. To illustrate, the objection to President Clinton's editing of Democratic National Committee ads run during the 1996 campaign was that the "soft money" raised by the party to pay for such ads was being put at the candidate's disposal, evading limits on the amounts that could be contributed to Mr. Clinton's 1996 reelection campaign.

Reacting to situations such as these, the McCain-Feingold bill broadly defines a "coordinated expenditure or disbursement" to mean "a payment made in concert or cooperation with, at the request or suggestion of, or pursuant to a general understanding with, such candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents." S. 27 § 214. The bill does not define "coordination" further. That task is delegated to the FEC, albeit with the injunction that the most natural reading of coordination - i.e., collaboration or agreement - shall not be required to establish coordination. Id. ("The regulation shall not require collaboration or agreement to establish coordination.") The bill also directs the FEC to consider whether the candidate and the independent entity are using the same vendor or whether payments for the communications are being directed by a former employee of the candidate.

Even without waiting for the FEC's implementing regulations, one can easily discern substantial First Amendment problems, most notably in the definition of coordination to mean more than "collaboration or agreement." How is an advocacy group to know when it is operating pursuant to a "general understanding" with the candidate? What if both read the same article in a political magazine such as the New Republic or the Weekly Standard suggesting certain tactics? Would it make a difference if the tactical suggestions come from the White House, or from a party?

McCain-Feingold's coordination provision would, in effect, force citizens and independent associations to choose between working with candidates on legislative matters or engaging in is-sue advocacy because doing both would invite legal exposure. For instance, assume that an asso-ciation representative were to meet with a candidate to discuss legislation that lay at the heart of the candidate's campaign, and then run an issue ad regarding the legislation. The candidate's op-ponent could then lodge a complaint alleging that the ad was a coordinated expenditure, which would be illegal if made by a corporation and would likely exceed the applicable contribution lim-its if made by other groups and individuals. Thus, under the expanded definition of coordination, litigation and the incessant filing of complaints could be used even more as a campaign tactic to embarrass and harass opponents.

American citizens should not be punished for working with their elected officials on issues of common importance. Unless an expenditure is made in direct collaboration with a political campaign to evade contribution limits, it should be considered an independent expenditure, outside the bounds of government regulation.

Indeed, in Colorado Republican, 518 U.S. at 622, the Supreme Court rejected the FEC's position that party expenditures were presumed, as a matter of law, to be coordinated with their candidates. Rather, the Court said, "[a]n agency's simply calling an independent expenditure a 'coordinated expenditure' cannot for constitutional purposes make it one.... [T]he government cannot foreclose the exercise of constitutional rights by mere labels." Id. There must be "actual coordination as a matter of fact." Id. at 617.

Due process and fundamental fairness require that individuals be given notice of what is required of them before they are subject to criminal prosecution. In FEC v. Christian Coalition, 52 F. Supp. 2d 45, 92 (D.D.C. 1999), a federal court explicitly defined coordination. It held that a communication:

becomes "coordinated" where the candidate or her agents can exercise control over, or where there has been substantial discussion or negotiation between the campaign and the spender over a communication's: (1) Contents; (2) timing; (3) location, mode, or intended audience (e.g., choice between newspaper or radio advertisement); or (4) "volume" (e.g., number of copies of printed materials or frequency of media spots). "Substantial discussion" or "negotiation" is such that the candidate and the spender emerge as partners or joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners.

The Supreme Court adopted its express advocacy test for a reason. Any attempt to ex-pand the definition of coordinated expenditure necessarily limits the political activities of independent advocacy groups, drawing them under the mantle of regulation. The First Amendment does not allow such an expansion.

Conclusion

If adopted by Congress and signed by the president, the provisions of McCain-Feingold discussed in this memo are likely to be invalidated on First Amendment grounds.