'We refuse to sacrifice the First Amendment in a desperate attempt to adopt reform legislation.' (American Civil Liberties Union)(The ACLU Vs. Public Citizen: A Debate on Campaign Finance)(Cover Story)

In early October, as the Senate demonstrated that it was deadlocked on campaign-finance reform, many politicians openly expressed their glee. The response of the American Civil Liberties Union, however, was much more measured. While we welcomed the apparent defeat of the much-touted McCain-Feingold legislation because it so flagrantly violates the First Amendment, we called upon Congress to begin considering campaign-finance reform that--unlike McCain-Feingold--would be effective and constitutional.

The solution we advocate is the establishment of a system of public financing that would include vouchers for political advertising, mailing privileges for qualified candidates, and tax credits for political contributions. This approach, which the ACLU has advocated for more than a decade, would establish an adequate floor of campaign resources, rather than attempting to impose an artificial and unconstitutional ceiling on campaign contributions and spending--the McCain-Feingold approach.

Recent experience has shown that if an adequate floor of support is provided, there is no need to impose a ceiling. Consider, for example, the California Senate campaign in 1996, when the enormously wealthy Michael Huffington challenged Dianne Feinstein. Even though Huffington far outspent his opponent, Feinstein won election because, as an incumbent, she was able to raise enough money to ensure that her message was heard by the voters. Her burden came in raising so much money from private sources. Our proposals would help relieve that burden, thus increasing the viability of all ballot-qualified candidates without reducing the level of political discourse in this country. They would also guarantee that both incumbents and challengers would have the means to communicate their message to the American public. The American people should not be forced to forfeit our First Amendment rights to contribute to political causes and to criticize candidates as a condition of meaningful reform.

We refuse to sacrifice the First Amendment in a desperate attempt to adopt reform legislation that we believe will be ineffective and unconstitutional. That is why we joined an unusual coalition against McCain-Feingold that included Senator Mitch McConnell, Republican of Kentucky, and organizations like the National Right to Life Committee, which we fiercely oppose on most issues. It made for strange bedfellows, but we're used to that. We participated in a similar coalition to combat the Clinton Administration's counterterrorism proposals that were such an affront to civil liberties.

We're not naive. We recognize that many pundits and observers are openly skeptical of the passionate First Amendment arguments made by Senator McConnell and his colleagues on campaign finance. And it is true: Senator McConnell's First Amendment record is mixed. Although he opposed a constitutional amendment to ban flag desecration, he supported the Communications Decency Act, the Internet censorship measure later struck down by the Supreme Court in Reno v. ACLU.

But we full, intend to hold McConnell and other Republicans--and Democrats--accountable for their selective view of constitutional law. It is interesting to note that before we began working with Senator McConnell on campaign finance, he actually supported efforts to amend the Constitution to ban flag burning. Sometimes our "unusual coalitions" can help educate members of all political persuasions about the principles underlying our arguments.

The ACLU takes its nonpartisanship very seriously. We do not oppose candidates or nominees, but instead choose to work with individuals and organizations on an issue-by-issue basis. Earlier this year, for example, we applauded Senator McConnell in the morning for a statement he made on campaign finance. Later that same day, we criticized him harshly for introducing legislation that would ban federal affirmative-action programs for women and minorities.

When it comes to campaign finance. Senator McConnell and the ACLU agree that McCain-Feingold has myriad First Amendment problems. We believe that key provisions of the legislation would effectively ban issue advocacy or speech relating to issues and the policy positions taken by candidates and elected officials. Issue advocacy can be as simple as a statement like "Senator Doe's position on school vouchers is grievously misguided." Or it can be as involved as a multimillion-dollar campaign of broadcast and print advertisements that spread the same message. Any group or individual can engage in issue advocacy. Under current law, a message stops being considered "issue advocacy" if it is accompanied by "express advocacy" or actual statements advocating the election or defeat of a clearly identified candidate for office. An example of express advocacy: "Senator Doe's position on school vouchers is grievously misguided, and anyone who cares about the separation of church and state should vote against him in November."

While issue advocacy can leave the impression that a listener should support or oppose a particular candidate, such messages cannot--under current law--be treated (and therefore regulated) as express advocacy by the Federal Elections Commission. The question of what constitutes issue advocacy--as distinct from express advocacy--became more heated during the 1996 elections, when groups across the political spectrum engaged in intense issue-advocacy campaigns. Many members of Congress felt they lost control of their campaigns because of the unregulated and undisclosed advertising from issue groups. Their concern that elections are "out of control" seems to be the driving force in current efforts to regulate issue advocacy. Because of this loss of control, some federal lawmakers believe that a candidate's interest in controlling his or her election should trump the rights of citizens to speak out during campaigns. Many members of Congress believe that issue advocacy became far too political and powerful during the last election cycle. They assert that these issue ads are really a subterfuge for express advocacy.

Some believe that all communications that could influence the outcome of elections should be regulated by statute. We couldn't disagree more. Following are some of the provisions of the McCain-Feingold bill that would unconstitutionally limit robust citizen speech. These include:

* A permanent, year-round restriction on issue advocacy. The bill would achieve this by redefining express advocacy in an unconstitutionally vague and watered-down manner. The key to the existing definition of express advocacy is the inclusion of an explicit directive to vote for or against a candidate. Minus the explicit directive--or so-called bright-line test--what constitutes express advocacy would be in the eye of the beholder (in this case, the Federal Election Commission).

* A two-month blackout on all television and radio issue advertising before primary and general elections. The only individuals and groups that would be able to characterize a candidate's record on radio and television during this sixty-day period would be the candidates, PACs, and the media.

* A misleading "exception" for candidate voting records. The voting records that would be permitted under this new statute would be stripped of any advocacy-like commentary. For example, depending on its wording, the ACLU (as a 501(c)(4) corporation) might be banned from distributing a voting guide that highlighted members of Congress who have a 100 percent ACLU voting record as members of an "ACLU Honor Roll." Unless the ACLU chose to create a PAC to publish such guides, we would be barred by McCain-Feingold even though we do not expressly advocate the election or defeat of a candidate.

* Redefining "expenditure," "contribution," and "coordination with a candidate" so that legal and constitutionally protected activities of issue-advocacy groups would become illegal. If the ACLU decided to take out an advertisement lauding--by name--certain Senators for their effective advocacy of constitutional campaign-finance reform, this ad would be counted as express advocacy on behalf of the named Senators and therefore prohibited.

Congress is threatening to erect a Byzantine set of laws that would pose a formidable barrier to citizen speech. This barrier would be like a barbed-wire fence: Individuals or groups would not try to scale it unless they were willing to become ensnared in a complicated set of laws whose penalties would inflict serious pain.

All of those barbs violate the First Amendment. Attempts to regulate and require disclosure of issue advocacy through statute and through FEC regulation have repeatedly been declared unconstitutional by the Supreme Court and lower federal courts. The Court has always viewed issue advocacy as a form of speech that deserves the highest degree of protection under the First Amendment. Not only has the Court been supportive of issue advocacy, the justices have stated that they are untroubled by the fact that issue advertisements may influence the outcome of an election.

In Buckley v. Valeo, the justices stated: "The 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 often 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."

Although questions and debate about political speech date back to the beginnings of our nation, the issue came to a head for the ACLU when, in 1972, three senior citizens spent thousands of dollars to purchase an advertisement in The New York Times that condemned the secret bombings of Cambodia by the United States. The advertisement also called for the impeachment of President Nixon and printed an honor roll of those members of Congress who had opposed the bombings Those mentioned included Senator George McGovern.

The ad was a classic example of speech protected by the First Amendment, but it violated a federal campaign-finance law, which effectively barred such expenditures on the ground that they could influence the upcoming Presidential election by criticizing President Nixon and applauding one of his possible opponents, Senator McGovern. On the basis of this law, the federal government sued the three, seeking to stop them from publishing such ads, and wrote a letter to the Times threatening the paper with criminal prosecution if it published such an ad again.

Later in 1972, the government sought to stop the ACLU from publishing an ad criticizing President Nixon on the issue of school desegregation. We had to go to court to defend our right to purchase an advertisement criticizing the President. The court swiftly struck down the law as unconstitutional. The Court has done this before and it will do so again. In September, the justices let stand a lower-court ruling allowing issue ads in Maine. All of this is to underscore what everyone on Capitol Hill knows: McCain-Feingold and similar proposals are doomed to fail in the courts.

We recognize that our proposals have no chance of winning passage in this Congress.

ut we see hopeful portents of change: A tremendous variety of legislation is now being written and introduced, including more public-financing proposals Our proposed public-financing system would effectively undercut the influence of private money. And it would pass constitutional muster. While testifying last spring before a House subcommittee, ACLU executive director Ira Glasser made a pitch for public financing. His testimony met with silence from the members of the Committee.

There is little interest in Congress in generating a serious public debate about public financing of elections. Instead, we get a lot of public posturing about reform. and proposals like McCain-Feingold, that are likely to be both ineffective and struck down as unconstitutional by the United States Supreme Court. Individuals who continue to support measures like McCain-Feingold do a disservice to genuine campaign reform. So long as bills like McCain-Feingold are allowed to masquerade as reform, neither Congress nor the President will get serious about public financing. McCain-Feingold is, in this sense, not a step toward reform, but an obstacle to it.

Laura W. Murphy is the director of the ACLU's Washington National Office.