"We pray for you, Senator X"

[The Straight Story]

FEDERAL ELECTION COMMISSION
PUBLIC HEARING
ON
ELECTIONEERING COMMUNICATIONS

http://www.fec.gov/pdf/nprm/electioneering_comm/20020828trans.txt

(excerpt)

COMMISSIONER SMITH: Okay. Well, they
argue on page 5 that they disagree with an
exception for the Internet and the Commission
should leave open regulating communications over
the Internet. So I'll take that accordingly.

Now, also, in their written comments
Senator McCain and Feingold, and Shays and Meehan,
approvingly cite and include a comment by
Representative Shays made during the floor debate
in which Representative Shays indicated that if a
church regularly broadcast its services, the sermon
and any other comments made during that service 
would be subject to regulation by the FEC under the
Act.

And I'm wondering, you know, do you,
speaking for the Campaign and Media Legal Center,
agree with Representative Shays that this Act gives
us the authority regulate the content of church
services?


----
COMMISSIONER SMITH: I think that's a good
point because Representative Shays, in fact, did
make that point. But here's the problem I have:
The sponsors go on and they tell us that--and I'm
quoting from their testimony here--"Any proposed
exception that is subject to abuse or provides a
potential loophole through which an organization
can circumvent the clear intent of Congress in
enacting Title II would be inconsistent with the
Commission's statutory authority."

They go on to say that they are skeptical,
as the Vice Chairman noted, of any broad exception 
that covered a theoretical problem, in the absence
of strong evidence that such an exception would
present no opportunity for abuse.

Now, don't you think this could be abused?
Preachers could say in their comments, "We pray for
you, President George W. Bush, in your brave and
valiant fight in the war against terrorism. We
pray for our Senator, Senator X, in his, you know,
brave and valiant fight in the war against
terrorism."

Isn't there potential for abuse here? And
if so, doesn't that put us right out of what the
sponsors, and really you in your earlier comments
in response to Commissioner Sandstrom are saying we
can't do when you said, you know, avoid these kinds
of things without strong evidence?

Shays went on. He said it has to be
wholly unrelated to an election--wholly, no mixed
purpose--and does not in any way promote or support
a candidate, or oppose his opponent. So this would
go to almost all the exceptions we're talking
about. 

Basically, what I'm hearing here is every
time one of these alleged horror stories comes up,
the response is, well, you can exempt that. But
every time we propose an exemption, we're told you
cannot propose an exemption unless there's
absolutely no possibility for abuse. And I can't
figure out how to write this exemption to let
church services be unregulated by the FEC without
opening up a possibility for abuse.


MR. SHOR: Okay. Is there a question?

COMMISSIONER SMITH: Well, I'll move on.
We're short on time, so let me ask you, Professor
Malbin, a couple of quick questions here.