Though it's not listed on the agenda as such, on Feb. 18 the Federal Election Commission plans to rule on the suspension of the First Amendment's guarantee of freedom of speech.
Not all speech, of course, just effective political speech. On that day, the FEC will take up an advisory opinion from its general counsel, Lawrence Norton, which argues that any communication that "promotes, supports, attacks or opposes" any candidate for federal office must be paid for by "hard money" -- that is, by small-dollar donations.
The effect of this opinion, should the commission accept it, will be twofold. First, it will confer a huge advantage on the Republicans in this year's presidential and congressional elections. Second, it will make it all but impossible for advocacy groups that have never participated in electoral activity, and are not even legally structured to do so, to praise or condemn the positions of public officeholders.
Norton issued his opinion, subjecting advocacy groups to the same fundraising strictures as federal campaigns, on Jan. 29. It was drafted in response to a query from a Republican organization that really doesn't seem to be an organization at all, but rather a device to stop Democrats from registering voters and getting commercials on the air.
The organization, whose existence hovers somewhere between virtual and non, is Americans for a Better Country (ABC). The one known activity of ABC, formed by three senior Republican operatives, is to have sent the FEC a query Nov. 18 about the legality of a series of election-related actions ABC said it might undertake. The actions seem to have been derived entirely from press accounts of activities on which a number of new Democratic organizations -- dubbed "527s" after the section of the tax code they fall under -- had embarked.
The 527s took shape last year in response to the prohibitions that the McCain-Feingold campaign finance law placed on political parties. The act forbade parties from using large "soft money" donations for such activities as voter registration and get-out-the-vote campaigns, and at the same time it doubled the amount that individuals are able to donate to political campaigns.
Problem is, the Democrats were far more reliant on soft money than the Republicans. It was only through the largesse of unions and major contributors from show business and finance that Democrats have been able to bring new and sometime voters to the polls. In 1999, for instance, the Republican Party committees raised $156 million in hard and soft money combined, while the Democrats raised $110 million. In 2003, with soft money abolished in mid-year and the ceilings on hard money raised, the Republican total rose to $206 million (which does not include the $200 million that the Bush-Cheney campaign plans to have on hand within a few weeks), while the Democrats' total dwindled to $95 million.
Accordingly, a number of Democratic operatives established 527s last year that were not linked to any party organizations but that sought to do the voter registration and other such activities that the party had previously undertaken. Already, these groups have registered hundreds of thousands of largely minority voters in such swing states as Missouri, Pennsylvania and Ohio.
Norton's draft opinion contends that these activities, so long as they are funded by large contributions, must cease. However, the language of the opinion is so broad that hundreds of advocacy groups that do not engage in electoral politics -- in the parlance of the trade, 501(c)(3)s and 501(c)(4)s -- believe that their own ability to advocate for specific public policies is threatened.
Indeed, 324 such organizations have sent a letter to the commission asking it "with the greatest sense of urgency and in the strongest terms possible, not to issue the draft opinion in its present form." They note that the opinion draws no distinction between "attacking" a policy advanced by Congress or the administration and campaigning for or against officeholders who are also candidates. Among the signatories are independent-living centers, homelessness advocates and tenants associations that promote particular policies but that have never remotely contemplated walking a precinct.
Even leading campaign reform organizations oppose the scope of Norton's opinion. Public Citizen, after noting its involvement in the fight for McCain-Feingold, expresses concern that nothing in the opinion limits the fundraising restrictions to 527s but in fact threatens to extend them to "the legitimate activities of all non-profit organizations." Common Cause is conspicuous by its absence from the fray. Only three small campaign finance organizations have defended the opinion.
The FEC commissioners are divided evenly along party lines -- three Democrats, three Republicans -- and longtime watchers hesitate to predict how they'll come down on the proposed restrictions. (One Republican commissioner has libertarian leanings; one Democrat is said to be fuming at his own party.) There's certainly a danger that in their zeal to get money -- or Democrats -- out of politics, they'll get political speech out of politics, too.
Harold Meyerson is editor-at-large of the Prospect. This column originally appeared in The Washington Post.
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