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Campaign reform as gag rule

Published April 11, 2004

What a laugh. The McCain-Feingold campaign finance reform law was supposed to limit the torrents of money flowing into political campaigns by eliminating large, unregulated contributions to political parties, known as soft money. Its passage in 2002 was to spell the end of big-money politics.


Since then, President Bush has raised nearly $160-million for his re-election bid. Donors may be following the hard money strictures of McCain-Feingold by giving in $2,000 chunks, but those contributions are often bundled by industry and business interests for maximum influence-buying impact. At the same time, Democrats, who are behind the eight ball on the hard-money front, have been establishing groups known as 527 committees to raise large donations for get-out-the-vote efforts and issue advertising that benefits Sen. John Kerry's White House bid.

None of this is a surprise. Money and politics can no more be separated from one another than could Eng and Chang, the original Siamese twins. This is why I support erasing all limits on individual contributions. As long as there is disclosure, voters can decide for themselves whether a politician has been bought and by whom.

But starry-eyed reformists eschew this approach, opting instead for reams of rules and regulations. Their efforts have transformed political participation into a complex legal minefield, requiring experts and lawyers to navigate.

What we have wrought is a regulatory gag on the First Amendment. Contributions to individual candidates and public advocacy groups are the functional equivalent of political speech. Donors give so others - either candidates or groups - will carry forth their shared ideas on how the country should be run. This surrogate speech should be at the very heart of First Amendment protection, but it has been sacrificed to a campaign finance reform scheme that doesn't work.

One of the more directly censorious provisions of the McCain-Feingold law bars issue advocacy groups, such as the National Rifle Association and People for the American Way, from mentioning the name of a federal candidate in a television or radio ad as elections draw near, unless those ads are paid for with hard money. In an opinion that the U.S. Supreme Court will one day come to regret, this provision was allowed to stand, but in a vigorous dissent, Justice Antonin Scalia called the ruling "a sad day for the freedom of speech."

Still, the damage done by the broadcast ban constitutes only a constitutional flesh wound compared to what is on the drawing board at the Federal Election Commission. In interpreting McCain-Feingold, the FEC has promulgated rules that would shut down a significant percentage of public interest activism.

Here, we are not just talking about 527s such as America Coming Together and the Media Fund, which were organized by independent Democratic supporters to raise the soft money that the Democratic Party no longer could. The FEC means to include all nonprofit organizations that speak to public issues and mention a candidate for federal office - even an incumbent.

If the Sierra Club wants to criticize President Bush's environmental record or if the National Right to Life Committee wants to sign up new voters in districts known to be antiabortion, the FEC would label them political committees and subject them to the same fundraising rules as groups formed to elect a candidate. That would mean reporting all contributions and expenditures to the FEC and not accepting contributions from foundations, corporations or unions. Also, individual contributions would be capped at $5,000.

This specter is so frightening that more than 600 nonprofit groups from across the ideological spectrum have joined together to file objections. Liz Towne, director of advocacy programs at the nonprofit Alliance for Justice, a group that helped organize the opposition, said that the proposed rules "would defund the public interest community" or effectively gag it.

As mentioned before, most Americans participate in the public arena not by standing on a soapbox in their local Hyde Park but by joining with others and pooling their money in support of an advocacy group. This grand American tradition, which should be fiercely protected by the First Amendment, is what the FEC is endangering.

How will a small, local nonprofit figure out the burdensome reporting and money-raising requirements that normally attach to a high-powered political committee? It won't, it will be quiet and idle instead. According to Towne, her group is fielding an unprecedented number of calls by nonprofits that have dropped plans to do voter registration drives because they don't want to risk running afoul of FEC rules.

The FEC will hold public hearings on the proposed rules April 14 and 15 (the public comment period ended Friday), and a final determination is expected by the middle of May.

What the commission is suggesting goes far beyond what Congress envisioned in McCain-Feingold. Essentially, the commission wants to put the entirety of issue advocacy under its supervision and control. The impulse follows the reformists' playbook of tightening regulations on an ever widening circle of groups until all are subject to uniform money-raising limits. They see this form of speech-communism as a way of salvaging democracy. And too bad about free speech. It just got in the way.

[Last modified April 11, 2004, 01:14:13]

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