Numbers Game

St. Louis, Mo. -- On an arctic Friday afternoon, the Democrats' secret weapons in the 2004 election come in out of the cold. Eight canvassers for the Missouri Progressive Vote Coalition -- Pro-Vote, for short -- return to their office with another 160 or so newly signed voter-registration forms, after a day spent gathering signatures on buses and in public-health clinics in St. Louis' African American neighborhoods.

Over the preceding two weeks, the Pro-Vote canvassers have been sending in 950 new registrations a week to the St. Louis registrar. Over the preceding several months, in tandem with the Missouri Partnership for America's Families, they've registered 45,000 new black voters in St. Louis and Kansas City. George W. Bush carried Missouri over Al Gore by a scant 78,695 votes (out of 2.34 million cast) in the 2000 presidential election, and it is clearly a key swing state in this year's contest.

These are Steve Rosenthal's legions. He is the central figure in several "527s" -- organizations, named for a section of the tax code, that Democratic activists have established to do the voter mobilization and advertising campaigns that the party itself can no longer do under the McCain-Feingold campaign-finance law. Rosenthal has put together early-registration campaigns in Missouri, Ohio, Pennsylvania, and now Florida.

The results have been overwhelming. Partnership for America's Families, a union-funded 527 that Rosenthal heads, first set up shop in Philadelphia last summer, and in short order registered 86,000 black and Hispanic Philadelphians. John Hickey, the executive director of Pro-Vote, says that after his project had submitted thousands of signatures, an official on the St. Louis election board called with a plaintive question. "Can't you just stop for a week?" he asked.

There are, in fact, a lot of people who would like Rosenthal to stop. They are almost entirely Republicans. And they have launched a legal challenge to the 527s that, if successful, could give the Republicans a huge advantage in the 2004 elections -- and, almost as an afterthought, fairly devastate the First Amendment, too.

The 527s are best understood as the Democrats' way to stay even with the Republicans in the wake of the enactment of McCain-Feingold -- which, under the guise of taking money out of politics, has magnified the Republicans' financial advantage over the Democrats. The law took aim at big money in politics, knocking out the unrestricted donations -- known as soft money -- that flowed to the parties for voter registration and advertising. To compensate for abolishing unrestricted donations to the parties, it doubled the amount an individual could give to a candidate to $2,000, and the maximum amount an individual could give to all candidates per two-year election cycle from $50,000 to $95,000.

Problem is, the Democrats were far more reliant on soft money -- largely from unions and major show-business and finance contributors -- than the Republicans for turning out the vote. In 1999, for instance, 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 midyear 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 saw their total shrink to $95 million.

For the Democrats this was obviously a crisis, but also an opportunity. They conceived a new range of organizations that would in effect privatize the Democratic Party. The new 527s could still collect those mega-soft-money donations so long as they had no communications with the official party bodies. Better still, they were led by respected strategists such as Rosenthal, who heads both the partnership and America Coming Together, and former Clinton stalwart Harold Ickes, who heads the Media Fund. What's more, they were backed by the largest and most politically savvy unions, along with mega-donors, including George Soros and Peter Lewis of Progressive Insurance, who each pledged $10 million.

The Republicans, meanwhile, made no discernible efforts to start up 527s of their own -- at least, until November 18 of last year, when three old GOP hands sent a letter to the Federal Elections Commission on behalf of a fake 527 called Americans for a Better Country (ABC). In a diabolically clever ploy, they described in minute detail a vast range of campaign activities that ABC was planning to undertake and asked the FEC to issue a ruling as to the legality of those activities.

Of course, there was no ABC. The activities described in the letter were plainly culled from press accounts of the Democratic 527s. The three even asked the commission to tell them the ramifications if they hired "[t]he former chief of staff to a member of the congressional leadership" -- an unmistakable reference to Cecile Richards, who heads one of the Democrats' 527s and who was deputy chief of staff to House Minority Leader Nancy Pelosi before that. By filing the query to the FEC in ABC's name, the ABC Three ensured that any FEC decision that proscribed some of their hypothetical practices -- and the 527s' real ones -- could not be appealed by the actual 527s, for they had no standing in the case.

On January 29, FEC general counsel Lawrence Norton issued a draft advisory opinion that not only threatened to curtail the 527s but virtually every advocacy group in American public life. (The FEC commissioners may decide to adopt, reject, or modify Norton's opinion as early as their February 18 meeting.) Norton argued that even though the 527s were not party organizations, their funding would have to be subject to the same restrictions as the parties themselves. Any communication that "promotes, supports, attacks, or opposes" any candidate for federal office, Norton wrote, must be paid for by hard money.

Such a decision, however, would go well beyond the 527s. If a communication said that President Bush and Congress "have led the fight in Congress for a stronger defense" and told the audience to "call them and tell them to keep fighting for you," Norton wrote that communication could not be paid for with soft money.

With that, Norton threatened the existence of groups that may never involve themselves in elections but do lobby and inform their members of issues before Congress and the administration. At first, his draft opinion was to be taken up by the FEC at its February 5 meeting. But the alarm bells were sounding across nonprofit America. On February 4, 324 such organizations signed a letter to the commission objecting to the opinion. In an accompanying release, the People For the American Way wrote, "It could be virtually impossible for groups other than federal [political action committees] to criticize and commend members of Congress or President Bush for anything they say or do if the commissioners approve the draft."

The signatory groups included such usual suspects as People For the American Way, the Sierra Club, the League of Conservation Voters, Planned Parenthood, and the National Abortion Rights Action League. But the protesting groups also included such far-flung entries as the American Lung Association, the Cleveland Tenants Organization, the American Jewish Committee, the Homeless and Housing Coalition of Kentucky, and the East Bay Asian Local Development Corporation. Confronted with this storm of criticism, the FEC delayed its decision until it meets again on February 18. Even Public Citizen, after noting its involvement in the fight for McCain-Feingold, expressed concern that nothing in the opinion limited the fund-raising restrictions to 527s, but threatened, rather, to extend them to the "legitimate activities of all nonprofit organizations." (Common Cause was conspicuous by its absence from the fray.)

Only three small campaign-finance-reform organizations stuck up for the opinion. Fred Wertheimer, who heads Democracy 21, contends that Norton's opinion doesn't refer to all nonprofits. And in a stunning display of Republican discipline, not one of the conservative organizations that have traditionally opposed FEC restrictions on campaign activities -- among them the National Rifle Association and the anti-abortion groups -- have said a word about Norton's opinion, though their own activities would clearly be curtailed should the FEC adopt the opinion.

Republican discipline, or the lack thereof, may ultimately determine the fate of the nonprofits and the 527s. By law, the six FEC commissioners are divided equally between the two parties. One of the Democrats, lame duck Scott Thomas, has spent three decades at the commission, first as a staffer, then as a member for the past 18 years. He wanted one more term, but labor, fearing he'd support a version of reform that would make it impossible for Democrats to achieve a level playing field, prevailed upon congressional Democrats not to renew his membership. "He's very angry about not getting reappointed; it's his entire professional life," says one commission insider. Democrats fear that an embittered Thomas may vote to uphold Norton's recommendations. But some hope that the FEC's new chairman, Republican Bradley Smith, a longtime opponent of regulating campaign-related fund raising and speech, may not toe the party line. "I would imagine he is trying to weigh his philosophy against the partisan imperatives of 2004," says one attorney who specializes in election law.

Many on the Republican right have long spoken of "defunding the left." The FEC opinion is a step in that direction, and certainly part of a deliberate strategy to stop the Democrats in the midst of a hugely promising voter-registration effort. In a clear attempt to scare off prospective donors to the Democratic groups, the GOP chairman of the Committee on House Administration, Ohio's Bob Ney, has vowed to subpoena the records of the 527s and is threatening to subpoena such principles as Rosenthal, Ickes, and Soros.

"I can't remember an incident since the McCarthy era," says Larry Gold, an attorney who represents a number of the leading 527s, "when an ongoing political organization had to prove it's complying with the law when there are no credible allegations that it's not."

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