Of Bright Lines and Fuzzy Arguments: McCain-Feingold Tries to Rein in Sham Issue Advocacy

Abstract

373 ON APRIL 2, 2001, by a vote of 59–41, the Senate passed the Bipartisan Campaign Reform Act of 2001 (the Act or McCain-Feingold).1 Among the most controversial and hotly debated provisions of McCain-Feingold is the regulation of “electioneering communications.” The Senate adopted two provisions, under Title II of the Act, that together prohibit for-profit corporations, labor unions, and nonprofit corporations and other special interest groups from spending money from their treasury funds on electioneering communications during federal elections.2 An electioneering communication is defined as (1) “any broadcast, cable, or satellite communication”;3 (2) that “refers to a clearly identified candidate”;4 (3) within 60 days of a general election or 30 days of a primary election;5 and (4) “is made to an audience that includes members of the electorate for such an election.”6 The first provision, known as the Snowe-Jeffords amendment, prohibits only for-profit corporations and labor unions from spending money on electioneering communications.7 The Snowe-Jeffords amendment provides an exception for nonprofit corporations and special interest groups and permits those organizations to engage in electioneering communications, so long as the communications are not paid for with funds provided by for-profit corporations or labor unions.8 However, it requires such nonprofit corporations and special interest groups to meet certain disclosure requirements if the organization has spent an aggregate of $10,000 or more on electioneering communications within the preceding calendar year from the date of the advertisement.9 In the final week of debate on McCain-Feingold, the Senate passed a second provision, known as the Wellstone amendment, amending Title II of McCain-Feingold.10 The Well-