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All in the Name of Campaign Reform

By James Bopp Jr.
Friday, August 29, 1997; Page A23


The Senate Governmental Affairs Committee, under its supposed authority to investigate "illegal and improper activities in connection with the 1996 Federal election campaigns," recently issued 26 subpoenas to a broad spectrum of citizens' groups and unions. The committee acceded to the demands of the Democrats on the panel for subpoenas for such conservative groups as the National Right to Life Committee, the Christian Coalition and the Heritage Foundation. In an obvious tit-for-tat, the Republicans insisted on subpoenas for the National Education Association, the Sierra Club and Emily's List, among others.

The public policy agendas of these groups vary greatly and often conflict. The varying voices of citizens' groups and unions play a vital and indispensable role in our representative democracy. The committee subpoenas pose a substantial threat to the free speech and free association rights of these groups and invade their right of privacy by demanding confidential communications that are essential to their educational and lobbying activities and issue advocacy.

The scope of these subpoenas is breathtaking, encompassing more than 10 million documents from the AFL-CIO alone. Documents are demanded in broad categories – any documents "related to any federal candidate, campaign, election, or publicly debated issue" over a two-year period. Furthermore, all communications with the Internal Revenue Service, Federal Election Commission and a long list of private organizations, regardless of subject matter, must be turned over.

The subpoenas specifically target internal documents regarding the groups' educational, legislative and political activities, including discussions regarding the allocation of funds among such projects, and any confidential polling results used to develop strategy for such activities. Finally, all confidential communications with the group's members, members of Congress and the press that mention a federal candidate or an incumbent member of Congress are demanded.

In providing these documents, the group must provide any draft of a document, additional copies if there are notations made by others and copies of the file folder the document was contained in.

The result of producing these documents would be to expose to the Senate committee, and ultimately to the public, confidential documents that discuss what position the group should take on an issue, its strategy in pursuing specific legislation, internal budget decisions on how it allocates its funds and private communications with sympathetic groups on how they can work together.

As the AFL-CIO explained in a letter to the committee, the subpoena "is a virtually unlimited search mission through almost every aspect of the AFL-CIO's operations . . . [T]he AFL-CIO is being subject to a top to bottom investigation of the type characteristic of a major criminal investigation merely because it has participated in various aspects of the political processes of the country."

All the more troubling is the fact that these documents would be turned over to politicians and their staff, whose political and legislative agendas are at odds with those of some of the subpoenaed groups and who can make the documents public at a hearing at their whim. This threat of public exposure of confidential documents by politicians seeking partisan political advantage – or even their private use of the information contained therein – imposes a chill on the future constitutionally protected activities of citizens' groups and unions.

In announcing their investigation of such organizations, committee Chairman Fred Thompson acknowledged that most of their activities "are presumably legal," and a committee investigator candidly explained to the New York Times that the subpoenas were "fishing expeditions," adding that both Democrats and Republicans were simply looking for material to embarrass the other side during the fall hearings.

The Supreme Court, however, has held that educational and lobbying activities and issue advocacy are at the heart of the right of citizens' groups and unions to participate in our democracy and at the core of First Amendment protections. These Bill of Rights protections apply just as much to congressional investigations as they do to federal and state laws and judicial proceedings. The subpoenas trample on these free speech and association rights.

One can only imagine the outrage that would have erupted across the land if the House Committee on Un-American Activities had issued identical subpoenas to organizations working lawfully to end the Vietnam War in the 1960s. But nowadays, once the words "campaign finance reform" are invoked, many otherwise sensible observers applaud even the most outrageous attempts by politicians to silence their political opponents.

Some members of the committee and its staff have, in effect, drafted a screenplay for the committee's fall hearings in which Thompson would find himself playing the role of Sen. Joe McCarthy.

It remains to be seen whether he will accept the part.

The writer is an Indiana lawyer who serves as general counsel for the National Right to Life Committee.


© Copyright 1997 The Washington Post Company

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