WASHINGTON, April 1 (UPI) -- The sponsors of the 1974 Federal Election Campaign Act argued their proposed reforms would end, or at least limit, the corrupting influence of money in U.S. politics.
The act, which was sold to the public as a way to prevent the financial excesses and illegalities of the 1972 Nixon re-election campaign from reoccurring, changed the way federal campaigns raise and spend money.
It set down a disclosure regime for campaign contributions, set limits on the amount and types of money that could be raised and spent by federal campaigns, established a mechanism to publicly finance the general election presidential contest and, to oversee the system, established the Federal Election Commission to both regulate and enforce the new law.
The United States Supreme Court's 1976 decision in Buckley vs. Valeo struck down two major parts of the 1974 law. First, it removed the mandatory spending limits that had been placed on all federal races.
Second, it threw out the limit imposed on independent spending on behalf of federal candidates as well as the provision to limit how much money a candidate can contribute to his or her own campaign, ruling that they were in violation of the First Amendment's protection of free speech.
At the time, the court said restrictions "on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money."
American politics being every bit as dynamic as the society as a whole, the practioners of the electoral arts, backed up by streams of lawyers, found ways to get around the new structure under the protective cover of the First Amendment.
One of the innovations occurred thanks to the creation of two classes of campaign donations: "hard" and "soft" money.
The hard money, the type of donations covered under the 1974 Act, remained subject to limits, making it harder to raise from a limited pool of sources.
Anything that was not "hard money" was labeled "soft," having few restrictions on its raising, its spending and its reporting.
The Buckley decision limited expenditures "for the purpose of influencing any election for federal office," meaning that contributions for party-building activities, voter education, state and local elections and a host of other political activities -- including the sponsorship of radio and television ads targeted at a particular candidate but not expressly advocating their election or defeat -- could be funded with soft money.
In the 25 years between the adoption of the act and the election of George W. Bush as president, critics of the system claimed the corrupting influence of money in politics had grown worse and set out to place restrictions on soft money as well.
The Bipartisan Campaign Reform Act, also known as McCain-Feingold, set in place a system that regulates and restricts many forms of previously unregulated political activity -- a system the United States Supreme Court largely confirmed as constitutional in its decision in McConnell vs. FEC.
The BCRA abolished soft money for national party committees, placed numerous restrictions on the fundraising activities of federal officeholders and restricted broadcast advertisements mentioning a federal candidate paid for with corporate or labor union funds within 30 days of a primary election or 60 days of a general election.
The affected organizations are still permitted to engage in such activity, several election law attorneys say, but must now finance them through so-called hard money.
Free speech advocates, not to mention many election professionals, found the decision disturbing, arguing that the McConnell decision meant that political speech no longer enjoyed the same umbrella of protection the First Amendment provides to pornography, hip-hop music, newspaper editorial pages and the burning of the American flag.
While the decision clearly applies to political parties, is it not clear that it applies to the kind of political organizations known as 527s.
According to one analysis being promulgated by a coalition of non-partisan political groups, the Supreme Court's McConnell decision "clearly stated that the law's limits on unregulated corporate, union and large individual contributions apply to political parties and not interest groups."
In McConnell, the court held that the "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 (get out the vote) activities, mailings and broadcast advertising" other than communications that expressly advocate the election or defeat of a candidate for federal office.
Which, as was the case before the BCRA became law, is where the rubber hits the proverbial road.
On Wednesday, the Republican National Committee and the Bush-Cheney '04 campaign filed a complaint against a number of third-party 527 organizations and the Kerry presidential campaign, alleging they have engaged in unlawful coordination of campaign activities (illegal under the old system and illegal in the post-McCain-Feingold universe), charging that they have used soft money to advocate for or against the election of a candidate for federal office.
The Republicans want the FEC to sanction the Kerry campaign and, effectively, order the left-wing 527s groups like the Media Fund, Americans Coming Together and MoveOn.org to cease their activities or shut down.
The RNC's chief legal counsel, Jill Holtzman Vogel, told reporters that Kerry, the Democrats' probable presidential nominee, "is now the beneficiary of the single largest conspiracy to violate campaign finance laws in history."
The complaint is part of a larger effort, generally pushed by the GOP, to see the McCain-Feingold restrictions expanded to include the 527 groups. In a rule-making matter currently under consideration, the FEC is being asked to regulate and potentially prosecute organizations that engage in political activity but are not currently considered federal political committees.
The rise of the 527 organizations, mostly working to the benefit of Democrats seeking federal office and liberal causes in general, was predicted, some might even say contemplated, while the McCain-Feingold law was being debated in Congress.
And, even though they have perpetuated the kind of advertising the sponsors of McCain-Feingold sought to eradicate, at least in the case of the Media Fund, ACT and MoveOn.org -- electioneering communications thinly veiled as issue advocacy ads -- few outside the formal GOP structure are suggesting they are in violation of the law.
In fact, during the legislative debate on BCRA, no one was seriously arguing that the soft money restrictions were meant to apply to groups like 527s.
Even if the FEC decides to act to expand the scope of the regulations to include 527s, it is unlikely that it could act in time to influence the ongoing presidential campaign because of the already existing windows on when soft money ads must cease relative to a primary or general election contest.
This does not mean, however, that the Republican complaint is completely without merit. The commission may decide, though veteran FEC watchers believe it unlikely, that 527 organizations should in fact come under the scope of its authority.
On the one hand, there is plenty of legislative and judicial history suggesting the authors of McCain-Feingold, as mentioned, intended for this to be the case.
On the other hand, federal regulatory bodies are notorious for self-appointed crusades that exceed the scope of authority Congress intended, and the FEC is a prime offender. McCain himself, testifying before the U.S. Senate Committee on Rules and Administration, said on March 10, 2004, "(T)hese groups should not be permitted to shirk their obligation, including those under the campaign finance laws. As Sen. Feingold pointed out, they're not in violation of BCRA, they're in violation of federal election law of 1974."
Feingold, in the same hearing said, "The FEC must not bless a new circumvention of the election laws so soon after we closed the last loophole it created. ... It is my hope that the FEC will act in a way that protects the integrity of those laws from efforts to puncture them with loopholes in their very first election after the enactment" of McCain-Feingold.
It is also the case that, should any of these advocacy radio and television spots air in states inside the 30-day primary window, the FEC is free to act and sanction based on a complaint, including sending it to the United States Department of Justice for further action if they determine the violation was willful rather than accidental.
Then there is the matter of coordination. The courts have issued some odd rulings over the last ten years as to what constitutes coordination, an issue that McCain-Feingold tries to bring back down to earth.
One element of potential coordination identified by the Republicans involves what they say are efforts between "the Kerry campaign and the soft money 527s through their personnel and structure, and by their actions as exemplified by the coordinated television buys."
The RNC points to the way in which the Kerry campaign and the left-wing 527s -- the Media Fund and MoveOn.org -- have been targeting the same 17 political swing states with television ads evoking similar messages.
Furthering their case, the GOP says, is that the veteran Democrat political operative who is currently the spokesman for two of the organizations identified by name in the Republican's complaint was until recently Kerry's campaign manager.
That fact alone does not demonstrate coordination. Jim Jordan, in a statement, dismissed the allegation as nonsense, calling it an attempt by the GOP to silence its critics.
Whether it is or not is something for the FEC to determine, should it choose to pursue the matter.
In the end, however, the rise of the 527s and the attendant complaints about their activities should demonstrate clearly that, like the 1974 Federal Election Campaign Act, McCain-Feingold solved few problems and created even more. As long as the Supreme Court continues to recognize that political activity and, in some cases money, remain protected by the First Amendment, there is little that pro-regulation politicians can do besides move the bar around and put some more hurdles in the way of unbridled electoral activity.
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