Part II: Who says Right and Left can’t agree?

Yesterday’s post, “Who says Right and Left can’t agree?” regarding the newly expansive D.C. federal appeals court ruling on the McCain-Feingold campaign finance law elicited critical comments from leading legal experts from Right and Left.

Today I received the following email from the former chair of the Federal Election Commission, Brad Smith. Smith is characterized as of the Right, and Bob Bauer identifies himself as of the Left (aside from being Barack Obama’s campaign law counsel). Note Smith’s opening paragraph.

Email Received 6/17/08

Hi Bruce,

I just got back from vacation late last night, so I haven't read the opinion. Bauer's probably got it right, and I haven't even read his post.

Here's the long, legal dilemma - what the reformers want, and apparently the Court agrees, is a standard that has no limits other than the act of coordination and a communication "relative to" a federal election. The FEC now will probably give them a ruling based on something perhaps, like the PASO standard (does the ad "promote, attack, support or oppose" a candidate) plus the fact of coordination. The problem is, that standard is possibly unconstitutionally vague except as applied to political parties, and probably overbroad as well. Alleging "coordination" is very easy. Consider virtually every group that might make independent expenditures in this presidential campaign - NRA, Sierra Club, RTL, Planned Parenthood, NAACP, etc. - virtually all will have had contact with Senator Obama or Senator McCain. So it is then easy to allege that their ads were "coordinated." You'll know the line: "We know they met, and now we know the groups are running ads praising the candidate or criticizing his opponent. We need an investigation!" And these investigations are very intrusive, necessarily demanding to know who met with whom, what they discussed, access to policy and strategy memos, etc.

But it goes further. With no "content" limit (other than the vague "PASO"), it will apply even to groups that don't do independent expenditures. Say the group I formed, the Center for Competitive Politics (are you familiar with CCP? You should be - www.campaignfreedom.org) meets with Senator McConnell to discuss deregulatory reform of campaign finance. We then write an article and issue a press release praising McConnell for taking the lead in defending free speech; we've not got a communication that "promotes" or "supports" him, and we've got at least some coordination of our activity, and possibly direct discussions about a press release.

Anyway, that's the legal. Here's my comment: "The FEC now will probably pass a rule that the reformers have been asking for. After they do, that rule will almost certainly be challenged as unconstitutional. So this should drag on a few more years." By the way, the reformers may have indirectly helped the forces of freedom - I think they will lose the constitutional suit on the provision, and since the court of appeals has determined that's what the statute requires, it may get the entire provision of the statute struck.

Brad