The Reform That Isn't

Accustomed though they were to Republican abuses of legislative practice, Democrats were nonetheless taken completely by surprise at the April 27 meeting of the Senate Rules Committee. With senators still settling into their seats, the “markup” session to revise the McCain-Feingold campaign-finance reform law had barely begun when Alaska Republican Ted Stevens, noting that he had to leave early, moved to report the bill to the Senate floor -- before the committee actually took up its language and considered amendments.

The Democrats were stunned -- so stunned that initially they didn't react at all. In best Alice-in-Wonderland fashion, Chairman Trent Lott called the question, and the bill -- its contents yet to be determined -- was forwarded to the floor. After a few minutes, Democrats Dick Durbin of Illinois and Chuck Schumer of New York (who arrived after the vote) objected, Schumer going so far as to remove his name as a co-sponsor.

It wasn't just the cart-before-the-horse aspect of the vote that was surreal. Consider, as well, the lineup of Republicans who voted at the hearing to “reform” campaign practices. The new crop included such longtime opponents of campaign-finance reform as Lott and, even more improbably, Republican Whip Mitch McConnell, the Senate's foremost opponent of McCain-Feingold (officially the Bipartisan Campaign Reform Act), who had challenged the measure's constitutionality in court.

There's a reason, it turns out, they'd suddenly gotten reform religion: This bill would reform out of existence the “527” groups that had run so many ads and energized so many voters in last year's presidential campaign, giving Democrats something close to parity in spending for voter mobilization. As the session progressed, Lott and his fellow Republicans passed a series of amendments from Utah's Robert Bennett that gave a whole new meaning to campaign-finance reform -- all intended to increase the resources that flow from businesses and big-money donors to Republicans. They raised the amount an individual donor can give to a political action committee (PAC). They increased the amount that PACs can give to national party committees. They eliminated restrictions on trade associations' abilities to solicit contributions from corporations, and on corporations' abilities to solicit contributions from employees. They raised from $101,000 to roughly $3 million the amount an individual can give to candidates and party committees in one campaign cycle. They removed all limits on the amount a leadership PAC (a PAC controlled by a legislative leader such as Bill Frist or Tom DeLay) can give to a national party committee. They indexed the PAC contribution limits to the cost of living. Arguably, the entire Republican worldview is encapsulated in the contrast between their opposition to indexing the minimum wage and their support for indexing PAC contributions.

The whole affair, says one Democratic staffer, raised “serious concerns about the Republicans' ultimate intent. It looks as if they just want to get a bill to a conference committee and then rewrite it the way they want.”

* * *

Whether the Republicans can agree on what they want is not at all clear. During the 2004 presidential campaign, they profited mightily from the mighty fabrications of the Swift Boat Veterans for Truth, certainly the most notorious of the 527s that arose that year. But Democrats came to rely on their own 527s -- most notably, such voter-mobilization organizations as America Coming Together (ACT), which boosted Democratic turnout by bringing hundreds of thousands of sometime voters to the polls in battleground states.

In the wake of the Senate markup, Democrats now fear that Republicans -- the overwhelming majority of whom opposed the initial McCain-Feingold act in 2002 -- are bent on eradicating such organizations as ACT in order to put the Democrats at a profound disadvantage in getting out the vote, as well as boosting the hard-money donation and spending limits to candidates and party committees to exploit the Republicans' advantage in the number of big-money donors. While very different versions of campaign-finance-reform legislation are swirling around both chambers of Congress, many Democratic officials and progressive operatives fear that they are all just vehicles to cripple Democratic field operations.

On June 8, the House Administration Committee sent to the floor on a straight party-line vote the Pence-Wynn bill, augmented by amendments from Committee Chairman Bob Ney that largely duplicated those that Bennett had inserted in the Senate bill. Thus amended, Pence-Wynn dealt more with lifting hard-money limits than restricting 527s, though it's widely assumed that such restrictions will be added on later in the process.

“It doesn't matter what's in the bill” at this stage, says Skip Roberts, longtime lobbyist for the Service Employees International Union (SEIU). “It will be rewritten, with no Democrats present, in conference committee. In [Republican National Committee Chairman] Ken Mehlman's office at the RNC -- that will be the conference.”

The threat to the Democratic 527s comes as a direct consequence of their success -- and the limits of their success. Beyond question, they boosted Democratic turnout substantially, though not enough to dislodge the Republicans from power. They were, in a sense, the children of McCain-Feingold, which forbade large, soft-money donations to the national and state parties for voter registration and mobilization, prompting some veteran liberal and labor operatives to found independent mobilization organizations (called 527s after the section of the tax code they fell under). They became, in essence, privatized parties, able to raise soft money for the kind of voter-contact campaigns that the official Democrats could no longer wage.

ACT, the largest such organization, raised $143 million in 2004, which it put into massive field operations in battleground states. And in those terrains where ACT had a major presence, the results were substantial. In Franklin County (that is, Columbus), Ohio, John Kerry's vote total in 2004 exceeded Al Gore's in 2000 by 43 percent. In Clark County, Nevada (Las Vegas), overall turnout was 70 percent, but among the voters whom ACT workers contacted at their door, turnout was 83 percent. As ACT's targeted voters had only voted once or twice in the four previous elections, this was a significant success.

But there was a fearful asymmetry between the Democratic and Republican voter-mobilization operations: While the Democrats' efforts took place chiefly outside the party structure, the Republicans', fueled with more hard money than the Democrats could ever access, took place chiefly within the party. “The Republicans have developed a self-sufficient infrastructure controlled by the party itself,' says Robert Bauer, an attorney for the Democratic 527s. “The Democrats don't have that.”

Which is why Republicans are prepared to transform themselves into campaign-finance reformers -- to the extent that the idea is to ban large, soft-money donations to 527s. If they hurt a few of their own groups in the process, that's politics. “The Republicans are prepared to throw the National Right to Life Committee under the bus, while for the Democrats, labor and [the 527s] are the mainstay of the ground effort,” says Bauer. “This has huge strategic significance, to seal [the Republicans'] majority. That's how they think about these things.”

The list of Democratic-leaning organizations that such new legislation would affect isn't limited to such new groups as ACT. In 2004, many long-standing liberal organizations, coordinating their activities under the umbrella group America Votes, committed an unprecedented level of resources to voter-mobilization campaigns. EMILY's List, Planned Parenthood, NARAL Pro-Choice America, the League of Conservation Voters (LCV), the Sierra Club, and the unions of the AFL-CIO all undertook major campaigns that the Republicans' current legislative initiatives could severely curtail. “This would hamper our ability to mobilize volunteers,” says LCV spokesman Mark Sokolove, noting that the league had 18,000 volunteers working in five battleground states last year.

Groups like the LCV carried on their campaign activities through their own 527 structures last year. In the new legislation, any advertising or voter-registration and mobilization activities by such groups that coincided with a federal election, for instance, could be brought under the regulations governing federal PACs -- in essence, banning large, soft-money donations. “That means the only elections [in which unions and other organizations] could do large-scale voter reg[istration] in are in New Jersey and Virginia,” says the SEIU's Roberts, because those states' gubernatorial elections occur in odd-numbered years that don't coincide with congressional or presidential elections. Indeed, because their activities also coincide with federal elections, all state and local party committees, and even neighborhood party clubs, could also be subjected to the donation limits of federal PACs if the new version of McCain-Feingold passes. Membership organizations such as unions and the other America Votes groups could avoid federal PAC regulations only by paying a whopping 35-percent tax on their political spending.

* * *

Some conservative advocates are bitterly opposed to the legislation. James Bopp, an election-law attorney for such groups as Focus on the Family and the National Right to Life Committee, speaks disparagingly of “a minority of Republicans [who] have thrown up their hands and joined the ‘Let's Regulate America for Partisan Political Advantage' chorus.” David Keating, executive director of the Club for Growth, the business group that tries to push Republicans to back even more extreme cuts in taxes, shares, in this one instance, this nonpartisan perspective: “Congress should not try to pass regulation that regulates campaign finance to tilt the balance toward one party or another. If that's how Republicans feel, that's a sellout of their principles.”

Bopp still believes that many Republican legislators would oppose a move against the 527s, but in a battle pitting the conservative movement against GOP strategists -- and no such battle has taken place during the Bush presidency -- he hesitates to predict an outcome. “The balance of forces on this question is up in the air,” he says.

Like their Republican counterparts, Democratic opponents of restrictions on 527s question the constitutional rationale for such regulation. Zoe Lofgren, a California Democrat who serves on the House Administration Committee, notes, “The courts have permitted the constraint on First Amendment rights to speak and influence based on the need to keep the system from being corrupted. They've tied that in to candidates soliciting money. But that rationale cannot be extended to 527s, which are prohibited from coordinating with candidates.” AFL-CIO attorney Larry Gold amplified this point in testimony to Lofgren's committee. Legislation that silenced the Swift Boat Vets or the Media Fund, he said, “is not serving the goal of preventing corruption or anything like it. Rather, the goal is to prevent disfavored speech, pure and simple.”

For now, there seem to be three possible routes to blocking the passage of legislation that could cripple the Democrats' ground game. The first would be Republican disharmony, with legislators choosing sides among their movement organ- izations and their party strategists. Just how badly the Republican leadership wants such a bill remains unclear. Some think Lott sided with McCain as a way to weaken Frist, who replaced Lott as Republican leader. On the other hand, McConnell's 180-degree swing in support of such legislation is the clearest indication of a shift in Republican strategic thinking.

The second brake would be McCain himself, who is not exactly thrilled with the direction in which his Republican colleagues have turned the discussion. “We are opposed to Pence-Wynn and the Bennett amendments,” says Eileen McMenamin, McCain's communications director. How McCain's opposition will manifest itself when the Rules Committee version reaches the floor is not yet clear, but in the face of the Tom DeLay scandals, Republican leaders may not wish to subject themselves to McCain's wrath, even in the cause of more hard money.

Should Republicans unify around a single bill, the Democrats would have to apply the third brake: a Senate filibuster. Still, if the Republican bill loosens hard-money restrictions, Lofgren sees an opportunity for the Democrats to make political hay. “If they were to do that,” she says, “it does complicate the web of questions around their own ethics.”

The 527 groups are far from perfect; they depend heavily on very large donors, and they are explicitly prohibited from coordinating operations with the Democratic Party. But as a partial antidote to Republican financial supremacy and as a vehicle to turn out Democratic voters, they are the best thing to come along. As yet, however, with the exception of the Democratic groups active in 527 work last year, the extent of the threat to the Democrats' election prospects does not seem to have registered fully either on party activists or their representatives on Capitol Hill. When I asked one very conscientious member of the Democratic leadership about the fight during the first week in June, the member replied that the issue wasn't really on the party's radar screen yet.

“Nobody gets [the urgency of] this,” says Roberts. The Democratic members of Congress “assume this will have a six-year gestation period,” as the original McCain-Feingold bill did. “But,” he worries, “not this year.”

Harold Meyerson is the Prospect's editor-at-large.

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