Wednesday, May 4, 2001 
Contact: James Bopp, Jr., General Counsel
phone 812-232-2434, fax 812-235-3685
jboppjr@abcs.com, madisoncenter@aol.com

James Madison Center Analysis: Senate-Passed McCain-Feingold Bill Contains Multiple Provisions That Violate First Amendment Rights of Average Citizens To Participate in Political Process

As amended in the U.S. Senate, the McCain-Feingold campaign finance "reform" bill (S. 27) as passed by the Senate remains "a broad-based and pernicious attack on the rights of average citizens to participate in the democratic process, thereby enhancing the power of already powerful wealthy individuals, millionaire candidates, and large news corporations," according to a detailed analysis of the Senate-passed bill released by the James Madison Center for Free Speech.

The analysis may be downloaded from the Madison Center website, www.jamesmadisoncenter.org, and is also available in various formats as an e-mail attachment (see below).

The analysis notes that during two weeks of debate, the Senate passed or defeated amendments to the bill with one polestar: increasing the power of incumbent politicians. For example, the Senate adopted amendments to increase contribution limits and impose television advertisement price controls, filling candidate campaign chests, but rejected an amendment that would have banned contributions from lobbyists while Congress is in session.

The Madison Center is a public interest organization that defends the rights of citizens to participate in our democracy. The analysis was written by Madison Center General Counsel James Bopp, Jr., who has directed 52 cases challenging state and federal election laws on First Amendment grounds, with a 91% win rate on completed cases (including eight straight successful cases against the FEC).

In a cover story in the February 17 issue of National Journal, Lawrence E. Gold, associate general counsel of the AFL-CIO, is quoted as saying, "The impact [Mr. Bopp] is having on behalf of his clients is one of the most important, under-reported developments of national election law."

The Madison Center analysis rebuts claims by McCain-Feingold advocates that the bill would diminish the influence of "money" in politics without impeding free speech. The analysis directly contrasts various provisions of the bill with quotes from past decisions of the U.S. Supreme Court and other federal courts that have established broad First Amendment protection for communications regarding political figures, and concludes, "This bill shakes a fist at the First Amendment; if passed it is destined for a court-ordered funeral."

Besides its attacks on free-speech rights, the bill would severely impede the right of free association, which also enjoys broad protection under the First Amendment. The analysis notes, "Average citizens must pool their resources to have an effect in the political sphere of issue advocacy, lobbying, and electoral activity. The wealthy and powerful have no such need. So ordinary people band together in ideological corporations, labor unions, and political parties to amplify their voices. . . . McCain-Feingold 2001, however, would suppress this ability, along with the foundational constitutional right to free speech."

The analysis examines in detail the provisions of the bill dealing with so-called "electioneering communications," through which extensive restrictions are triggered by the mere mentioning of a federal politician's name -- restrictions that violate numerous federal court rulings.

The bill's overbroad and sometimes vague language would chill political speech by placing groups constantly at risk of expensive investigations if they express opinions about politicians. The analysis notes: "Particularly in Washington, D.C., the punishment is in the process. Daring to tell constituents to get an incumbent to change his position on an upcoming vote could provoke an FEC investigation."

The entire 37-page analysis is available in WordPerfect, Microsoft Word, or PDF format by sending a request to MadisonCenter@aol.com (please specify preference for PDF, WordPerfect, or Microsoft Word). The PDF version of the document also may be downloaded from the James Madison Center.  Click Here.