527 Fisking

Last week I wrote about the “FEC Claws Further Into Your Mouth.” I should have added, the FEC claws further into your pocket. The costs of trying to comply with the McCain-Feingold so-called reforms of campaigns and campaign financing would be prohibitive for any but the well heeled, requiring very experienced and expensive lawyers.

The Swiftboat Veterans for Truth spent about $300,000 on attorney fees before throwing in the towel in order not to spend even more that takes away from its multimillion dollar donations to disabled vets. I spent parts of the past week trying to understand the details and interpretations of McCain-Feingold and, despite some fine websites on campaign law, I made the unusual admission for me -- who commonly works with obscure benefits laws -- that I would have to become an attorney and spend full-time at trying to understand the ins-and-outs of McCain-Feingold and the layers of other campaign finance laws that are called reforms.

Incumbent politicians like it, seeing the benefits of restricting challengers. Some newspapers like it, seeing their control strengthened over what views voters see. Some think tanks like it, either for consistency with their paranoia of anyone wealthy or because of hefty contributions via Soros fronts.

Others who understand the permutations of McCain-Feingold consider it an extreme intrusion on free speech. Bradley Smith served as chairman of the Federal Election Commission in 2004. Today he wrote in the Los Angeles Times:

In what other country can ordinary people have such a profound political effect? Certainly some didn't like what one group or the other had to say. But isn't the point of the 1st Amendment that we hear these messages and make up our own minds, without the government telling us whom to believe or silencing voices before we hear them?

If last week's fines have the desired effect, in future elections we will not hear from groups such as the Swifties or MoveOn. Instead, there will be issues not raised, points of view not heard. The funny thing is, we voters won't even know who is not getting to speak or what issues are not being raised. Politicians who want to "control their own campaigns" will find this to their advantage. But how this is an advantage for democracy, I'm not sure.

Bob Bauer contributes to the Campaign Finance Law Guide. He dissects the editorials in the New York Times and Washington Post about 527’s:

In the Times' vision, regulation is the natural order of things: political money must be controlled in amount. Controls on amount will also serve as quality controls—checks on too much "negativity" or "mudslinging" or "hard-edged activism" or "partisanship." These are the harms, the justification for government restrictions on speech and organizing.

It is worth noting that last week, the Times, in another editorial published Friday, thunderously denounced the Administration for using its subpoena power in criminal investigations to wrest from litigants leaked documents. "A Gag on Free Speech," New York Times (Dec. 15, 2006). Here was an outrage against the First Amendment: unprecedented, and most obviously a deplorable instance of prior restraint. The Times writes this improper exercise of power enables government "to deprive Americans of information they need to make informed judgments about their elected leaders’ policies and actions."

Of course, with its interest in leaked materials, the Times might well have a strong First Amendment complaint to register. It may be that the perceived offensiveness of the government’s behavior—when depriving Americans of access to political information—depends on where the critic stands in relation to the source and use of the information. As the Times shows, it is not disinterested inquiry.

The Washington Post this morning turns in a more measured performance on the issue. "Finally, 527s," Washington Post (Dec. 18, 2006) at A24. Also convinced of the need to regulate 527s, it appreciates that the law was "murky" and that the "lower" fines so infuriating to the Times were for that reason "appropriate."

But like the Times, the Post can’t quite pin down the wrongdoing at the center of all this enforcement activity. 527s are said to have been afforded so much freedom that it "allowed them to wield significant influence in the campaign." Influence—made by possible by too much "freedom"—cannot be a federal offense; it is certainly not a constitutional ground for restricting speech or association. The case against 527s is no stronger if we say that, because they exercise any influence over elections, they should have to "play by the same rules as other political organizations." There are all sorts of political organizations, defined as organizations seeking some sway over politics; and the very question before the FEC is which of them is engaged in activity that the government rightly, acting within constitutional bounds, can regulate in some considerable and effectively suppressive detail.

In another post, Bauer concludes the effect:

Organizations with strong views to express about public elected officials and candidates will now know better and think twice.

While vacationing in Arizona last month, I saw in the newspaper that Senator John McCain and wife just purchased a $3 or $4-million condo in Phoenix. So, I suppose that along with his Senatorial privileges and venues he can afford to “straight-talk.” Others without his advantages are disadvantaged in their free speech by McCain-Feingold. Its supporters like it that way.