Jeff Johnson, CNSNews.com
Thursday, April 4, 2002

On April 27, 1988, Margaret McIntyre anonymously distributed leaflets opposing a school tax levy to be considered in a referendum in Westerville, Ohio.

She was later charged with violating section 3599.09 (A) of the Ohio Code, which prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.

Eventually, the U.S. Supreme Court found the Ohio law violated the First Amendment's protection of free speech.

"The freedom to publish anonymously is protected by the First Amendment, and extends beyond the literary realm to the advocacy of political causes," the ruling said.

The court found that the law was an unconstitutional "regulation of core political speech ... speech designed to influence the voters in an election."

So why does the new campaign finance law signed last month by President Bush outlaw anonymous political speech by private citizens? Opponents of the law, who argue the measure violates the Constitution, are increasingly asking that question.

'Conveniently Ignoring' High Court Rulings

One of those asking the question is campaign finance attorney Cleta Mitchell, with the Washington law form of Foley and Lardner.

Mitchell's firm is representing National Rifle Association in its lawsuit to strike down the Bipartisan Campaign Reform Act (BCRA). She said supporters of the new law were conveniently ignoring the McIntyre decision.

"Speech which the Supreme Court has said is not subject to government regulation, this new law says, 'Oh, yes it is,'" she explained.

"The Supreme Court said, essentially, that anonymous political speech goes back to the very beginning of our country with the publishing of the Federalist Papers," Mitchell added.

Under the BCRA, if NRA or any other group wants to engage in issue advocacy advertising that includes the name of a federal candidate within 60 days of a general election, that group would have to disclose the names and address of all its members and publish that list on the Internet.

'A Right to Speak' and a Right to Privacy

"People have a right to speak without the government forcing the disclosure of their identities," Mitchell said. "That chills their ability to freely associate with others of like mind."

She says she finds it particularly interesting that the BCRA limits issues advocacy groups such as her client from using the names of federal candidates only during the 60 days before a general election.

"That's when Congress does a great deal of its work, and that's when a gag rule is imposed on citizens' groups from participating in the process." Mitchell added that the ban would allow incumbent legislators to introduce and support otherwise controversial legislation, knowing that issue advocacy groups could not expose their actions to constituents.

"If Congress wants to promise to adjourn, and not be in session 60 days before an election this might make some sense," she concluded.

Disclosure Defended

The Bipartisan Campaign Reform Act signed into law by President Bush last month contains new restrictions on the political speech of non-profit issue advocacy groups, including requirements to disclose, under certain circumstances, the names of people who contribute to those groups.

The Supreme Court's 1976 decision in Buckley vs. Valeo upheld the constitutionality of limiting contributions to political candidates and parties, and of requiring candidates and parties to disclose the identities and other personal information about their donors.

BCRA would expand those contribution limits and disclosure requirements to any group that buys broadcast advertising containing the name of a federal candidate, in the media market where that candidate is running, for 60 days before a general election or 30 days before a primary or special or runoff election.

As CNSNews.com previously reported, attorney Trevor Potter, former chairman of the Federal Election Commission and campaign finance adviser to Sen. John McCain, R-Ariz. - a lead co-sponsor of the BCRA - claimed the First Amendment allows the government to impose such restrictions on political speech.

"What the court has said in 'Buckley' is that people who engage in political speech do have to disclose their identities. If you contribute you disclose who you are. If you make an independent expenditure you are required to report that and it is a matter of public record."

Potter claims the BCRA only broadens the law to include "campaign advertising" that was escaping disclosure through a loophole.

"All this does is move the line of what spending is disclosed. It doesn't change the constitutional doctrine that says that you can require disclosure of political speech," he said.

But opponents of the law argue the Supreme Court took a different view of political speech by private citizens, compared with that of candidates and political parties, in the more-recent McIntyre vs. Ohio Elections Commission case.

BRCA Backers 'Intervene' in Court Actions

Six members of Congress, all supporters of the BRCA, "intervened" Tuesday in the lawsuit filed by NRA and a similar suit filed by Sen. Mitch McConnell, R-Ky.

The group includes Reps. Martin Meehan, D-Mass., and Christopher Shays, R-Conn., along with Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., the original sponsors of the bill.

Sens. Jim Jeffords, I-Vt., and Olympia Snowe, R-Maine, who sponsored the amendment that bans issue advocacy advertising without disclosure, are also included in the group.

A statement issued by the group says it "will show that the provisions challenged by the plaintiff[s] are constitutional."

The interveners also claim the restriction on political speech imposed by the BCRA "affirmatively promotes and enhances core First Amendment values."

"The [BCRA] ensures that candidates, parties, and citizens have robust opportunities their fundamental rights of expression and association," the statement concludes.

No date has been set for the U.S. District Court for the District of Columbia to hear the lawsuits. Regardless of which side wins at that level, the case is expected to be appealed to the U.S. Supreme Court.

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