FEC Makes Correct Call on "527s"
By Brad Smith Posted in User Blogs — Comments (30) / Email this page » / Leave a comment »
Kudos today to the Federal Election Commission, which has decided to defend its 2004 decision not to regulate all so-called "527" committees,. I won't try to recreate the whole story here, but a summary and some commentary and links are below the fold...One long term objective of the so-called "campaign finance `reform'" movement is to regulate all political speech on the vague grounds that it might "influence" an election. The Courts have resisted this approach as unconstitutionally vague - though they read the First Amendment as allowing some such regulation - more than I and most conservatives would like - it is not a blank check.
In the McCain-Feingold bill, passed in 2003, Congress limited so-called "soft money" contributions to political parties. Critics of the legislation pointed out that the main effect of that effort would be that soft money would go to "outside" groups, i.e. groups of citizens other than the political parties. To combat this, the "reformers" included in the law a provision regulating what they called "electioneering communications," that is, broadcast ads within 30 days of a primary or 60 days of an election, paid for by a corporation (even a non-profit membership group) or any corporate or union general treasury funds. Many people believed that this was unconstitutional, but the Supreme Court upheld it in McConnell v. FEC.
Just as predicted, after McCain-Feingold was passed "soft money" migrated from the political parties to "outside groups," 527s such as Americans Coming Together and Swift Boat Veterans for Truth. The Democrats planned for this and were well-prepared for the shift. Rather than play under the new rules, however, Republican strategists decided in the fall of 2003 to try to use regulation to silence liberal speakers and groups, while threatening conservatives who wanted to give to 527 organizations. Thus they argued that all independent 527 activity was illegal under McCain-Feingold, a patently absurd proposition to anyone familiar with the law or it legislative history. Eventually recognizing that absurdity, "reformers," including Senators McCain and Feingold, began to claim that, "well, 527 activity was always illegal, the FEC just hadn't enforced the law properly." This argument was able to gain some traction, in large part because well-financed "reform" groups had spent so many years and tens of millions of dollars spreading the idea that the FEC won't enforce the law, and because the GOP political leadership pushed the notion, a) to cover its failure to be ready for "527" warfare; and b) because they saw a corresponding short term advantage to trying to shut down liberal "527" groups.
The argument for regulating all 527s is basically the traditional argument of the liberal "reformers" - their commentary and activities might influence an election, and so must be regulated. But that's a policy judgement, not what the statute actually provides, or what the Supreme Court has allowed.
In 2004 the FEC, held hearings and concluded, quite correctly, that it lacked the authority to regulate 527s merely on the grounds that they were 527s. Rather, they can only be regulated if they engage in certain activity proscribed by the law, as interpreted by the courts.
The House sponsors of McCain-Feingold, Congressmen Shays and Meehan, sued in federal court, arguing that having opened a rule-making, the FEC had not adequately justified its decision not to issue a rule regulating all 527s. In a somewhat mixed up opinion, a federal judge denied the Shays-Meehan claim that the FEC must regulate all 527s, but did require the FEC to better justify its decision not to do so. In today's decision the FEC announced its intention to do just that - rather than pass a dubious rule regulating all 527s, it will again explain its decision not to regulate.
For those of you unfamiliar with the whole 527 debate, and why it is both bad policy and bad GOP politics, see here.
Basically, regulating all 527s as political committees is taking the hated 30/60 day brownout and applying it year round.
The 5th Circuit's recent decision in Center for Individual Freedom v. Carmouche supports the FEC's reading of the statute, as does scholarly commentary on the issue from the Associate Dean at the University of Minnesota School of Law, and Professor Allison Hayward of George Mason University School of Law.
Meanwhile, the Center for Competitive Politics, for whom I am a spokesperson, has issued the following statement:
May 31, 2006
Media Contact: Bradley A. Smith (614) 236-6317
FEC Makes the Right Decision on 527s
Arlington, Va. - "Today the FEC wisely decided to stand by its decision not to issue unprecedented regulations that would turn thousands of citizens organizations into highly regulated `political committees,'" said Bradley A. Smith, former Chairman of the Federal Election Commission and Senior Advisor to the Center for Competitive Politics ("CCP"). Smith was commenting on the FEC's decision to rewrite the explanation for its bipartisan 2004 decision not to assert jurisdiction over all so-called "527" organizations, rather than draft new rules vastly expanding the scope of federal regulation. The FEC's announcement was in response to the March 29, 2006 order of U.S. District Judge Emmet G. Sullivan, denying the requests of plaintiffs Christopher Shays and Martin Meehan, and Bush-Cheney 2004, that the court order the FEC to promulgate a new rule, but also ordering the FEC to better explain its reasoning for not regulating all 527s.
"The FEC's original decision not to treat all 527 organizations as political committees was correct," said Smith. "The Commission now just needs to better explain why 527 organizations were not reached by BCRA, which should be easy to do. BCRA opponents and sponsors alike agreed at the time that BCRA would create a vacuum to be filled by outside organizations," Smith said.
"Congress is actively considering 527 proposals for a reason" added Smith, who also teaches law at Capital University Law School in Columbus, Ohio, "This is because the independent activity of 527 organizations is not illegal." In its opinion in McConnell v. FEC, upholding the McCain-Feingold campaign finance law, the Supreme Court rejected the notion that the law regulated all 527s, writing, "BCRA imposes numerous restrictions on the fundraising abilities of political parties, of which the soft-money ban is only the most prominent. Interest groups, however, remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications)." 540 U.S. 93, 187-188 (2003)(emphasis added). No one should have been surprised that this is precisely what happened in the election cycle of 2004.
The Center for Competitive Politics is a non-profit organization founded in 2005 by Smith and Stephen M. Hoersting, a campaign finance attorney and former General Counsel to the National Republican Senatorial Committee. CCP's mission, through legal briefs, studies, historical and constitutional analyses, and media communication, is to educate the public on the actual effects of money in politics, and the results of a more free and competitive electoral process.
901 North Glebe Road, Suite 900, Arlington, Virginia 22203
www.campaignfreedom.org
And Club for Growth and Swift Boat Veterans for Truth and Progress for America ("Ashley" ad), and the Christian Civic League of Maine and more conservative voices than you or I could begin to name. It's very hard to think that free speech should only apply to conservatives and not to the liberal groups, too. So the question you've got to ask yourself is, "Am I so eager to get George Soros I'm willing to censor myself and my friends?" Meanwhile, see the link in the main post about 527s and why efforts to shut them out are not only bad policy, but bad GOP politics.
Maybe, just maybe, the 60-day brown-out period can be killed entirely the next time a challenge goes up to the USSC.
in the heart of CFR life will be good.
That the liberals are getting millions more than the dems. Fenton Communications spins these things out like they are cheap reality TV shows and the money available to these people is just astounding. My guess is that Democratic 527's have Republican 527's outfunded by at least 3-1
Liberals are getting more than the Republicans.
assault in recent years on freedom of speech. Let us just work harder to raise more money for our guys, and get rid of as much government regulation of political speech as we can.
what the Court's reasoning could be on permitting CFR. Government acts causing prior restraint on speech is reviewed with strict scrutiny.
Does anybody know what the vote was on this, AND what the primary legal reasoning was?????????
Any help on this would be much appreciated. Now, back to the Contracts portion of the multi-state.
But I don't think the right has anything remotely close to Fenton Communications to coordinate the messages of all the 527's like the left has. You would need to create the PR agency, then get the access to the kind of money they have first. Then you can start creating the 527's to coordinate the message like MoveOn, Code Pink, Cindy Sheehan, Veterans for Peace, etc. etc. etc. all performances managed by Fenton with the message sharpened and coordinated ... I just don't see that ever happening because of the more diverse spectrum of opinion on the Republican side.
Still my opinion that 527s hurt the Republicans a lot more than they help them. Are there any foundations the size of the Heinz foundation or the Tides foundation or any backers like George Sorros behind any of the Republican 527's? Tides is a good one because it is designed to keep the donor anonymous. You can send Tides your money and whisper in their ear where you want it to go and they will donate it for you in their name so your name doesn't go on the books of the recipient. In fact, that is their entire reason for existance. I don't see the Republicans doing anything that sneaky ... the Democrats would want to appoint a special prosecuter.
in the box with Roe. While the reasoning isn't the same, the quality of it is.
Decision on the part that they upheld was 5/4. Ms. Justice O'Connor was one of the 5, both Kennedy (yep) and Rehnquist were of the 4. Bottom line, if SCOTUS rehears CFR with the current line-up I think you can look for a 5/4 and the end of CFR.
The liberal 527s have had more luck raising money because the Republicans have discouraged conservatives from giving to 527s. First, Republicans told donors back in 2004 that it was illegal, and people would go to jail. They literally said that. Now for two years they have continued to discourage conservatives from giving to 527s, and sued in court to force the FEC to regulate them (what this case is about).
It tends to discourage giving when you tell people something is illegal or disreputable, and put the power of the White House and the RNC behind it. In other words, conservatives are being outraised largely because the GOP has decided it would rather try to silence all 527s than live with and use them. Imagine how much more money the Democratic Party would raise than the Republican Party if Bush-Cheney sued to prohibit Party fundraising, and told conservatives not to give to the party.
and their paltry $17MM that beat Kerry.
The Dem leaning 527's spent about $100MM more than the Rep leaning groups. For that $100MM they got:
- Bush in the WH for four more years.
- More Rep's in the Senate.
- More Rep's in the House.
- More Rep governors.
Pretty good investment, huh?
Since then, the guys who put up most of the money have funded AirAmerica to the tune of millions and have about 1% market share in the few cities they are in.
to every problem; "Throw money at it"
Even better if it's your money!
Why spend your $1m on improving the public schools when you can turn around and spend it on TV ads for $500m in new government spending?
they don't spend their money any better than they spend ours.
...and fuzzy economics that's all the rage in our schools of late?
But consistent with their flawed philosophy and worldview.
Kennedy has a much bigger originalist streak than most give him credit for. He's not the best, in my opinion, but if he had to be classified, I think we'd align him more with Scalia than with Breyer. And that's a good thing.
...and, IIRC, libs have reps beat 3-2 or so. Not that large a difference that the First Amendment should be sacrificed on the altar of short-sighted political expediency.
"We" passed CFR resulting in 527's, but "we" say don't contribute to a 527-it's EVIL, now the FEC says "we" were right the first time with CFR and is supporting 527s, but "we" are using the evil 527s as our first point of attack for fundraising letters?
I'm very confused.
"We're going to fight back against the far-left "527" committees that have been viciously attacking our values."
Good luck. You're a little behind in the game.
We're doing fine. While we didn't pour as much money into 527s as the Democrats did, don't forget that a few wealthy donors can really skew the numbers.
Further, I'd say that the Swifties were more effective than any other 527 in 2004, wouldn't you?
more hard money than Republicans did. Then Republicans learned how to collect hard money than Dems. So the Dems then started collecting more soft money than Reps. And Reps learned how to collect soft money, and started collecting more soft money than the Dems. This happened before CFR, and Reps figured they could get "good guy points" for giving up an advantage they had over Dems. But Dems had already figured out how to turn CFR on its head to once again get a money advantage over Reps. Reps might not like it, but its time to learn a new game, and frankly, its their own damn fault for agreeing to abridgement of 1st Amendment rights anyway. If they stop changing the rules of the game, and just play the game, they will win. (And the Dems will whine, but so long as we don't let their whining change the rules, everything will be okay.)
Because by law 501(c)3 organizations have a very limited ability to contribute to political campaigns. The upper legal limit is something like 5%, but prudent lawyers recommend you steer clear of anything that smells of electioneering. As someone who has been Officer and/or BoD of a number of such organizations, this is something with which I am intimately familar.
In other words, if you can't really outlaw soft money because people will always find loopholes, let's try to beat them at their own game.
If Congress was stupid enough to pass it, and the President was even more stupid in signing it, we have no obligation to protect them from their own stupidity.
Not that that was what the wrote in a long, intricate, and contradictory opinion.
but its a bit more positive than that. As in: every time we have put our nose to the grindstone, we have beaten them; this time won't be any different.
Indeed the Swifties were successful in spite of the cheap shots thrown their way by the RNC, that is when they were even acknowledged at all by them. The RNC is real proud of their success without even mentioning the Swifties. Ask any guy on the street what turned the tide in April 2004 and they'll tell you it's so obvious - the Swiftboat Veterans of course! Truth, determination and persistence work. Look at the RNC's lovely election pattern statistics and you won't see the Swifties anywhere on the page.
They can contribute from 15-20% of total expenses. If your mission is education, you can get a lot of money into the system. As far as raw numbers go, I was getting the figures from a site called "Stealth PAC" that seemed reputable.
With moveon.org and however many of these "organizations" that Sorros/Heinz/Tides can fund and Fenton Communications can manage?