McCain-Feingold at Rest

Here's a new campaign finance reform plan: Just stop

Most Americans outside Washington, lucky souls, have no idea what a "527" group is. The country paid no attention last week when the Senate Rules Committee voted out a bill that would subject 527 groups to some of the same soft-money restrictions that apply to party committees. The change was portrayed by many of its advocates as little more than a technical adjustment to the existing campaign finance rules: "statutory coordination," as one expert said in Senate testimony. Asleep yet?

Wake up. This is no mere tweak. The 527 question brings campaign finance law face to face with a choice it hoped never to have to make. Congress and the country are on the brink of deciding between unlimited contributions in politics or unlimited regulation of politics.

The McCain-Feingold campaign finance reform law (officially, the Bipartisan Campaign Reform Act) was signed into law in March 2002. The Supreme Court upheld and unleashed it in December 2003, only 18 months ago. Only one election cycle has passed since then. Yet Congress is already working on new restrictions. This might reflect, as proponents of the new restrictions argue, that conditions change rapidly in the political world. Or it might suggest, as opponents retort, that the law itself is radically unstable. Unfortunately, both sides are right.

A 527 group is a private, tax-exempt political organization set up under Section 527 of the U.S. tax code. Such groups have been around for years but never took center stage until 2004, when they became major players. That's because McCain-Feingold shut the door on unlimited contributions (so-called "soft money") to political parties, so that many of the big-dollar donations began flowing to 527 groups instead. Some of the groups were established by partisan operatives and acted as virtual proxies for the parties (mainly the Democrats). Others—notably Swift Boat Veterans for Truth, which attacked Sen. John Kerry's Vietnam War record—made lots of people hopping mad.

According to the Campaign Finance Institute, contributions to 527 groups more than doubled between 2002 and 2004, to $405 million. Most of the money came from individuals, often in eye-popping sums; 70 percent of the total came from just 52 people who gave between $1 million and $24 million. Democratic zillionaires Peter B. Lewis and George Soros gave $16 million and $12 million respectively. This was big money if the phrase means anything at all.

Fred Wertheimer, the president of Democracy 21 (an advocacy group that says it works "to eliminate the undue influence of big money in American politics"), argues that 2004 was just the beginning. In 2006, he says, 527 groups will begin pouring money into contested House and Senate races. "Given the opportunity, this will grow and grow in future elections, and it will create enormous inequities." He is probably right. Absent further change, 527 groups will become the outlet of choice for unlimited political contributions.

On the other hand, banning soft-money donations to 527 groups would confirm the campaign finance law's transformation into an engine of unlimited political regulation. Imagine a runaway lawnmower munching every flower bed and hillock in sight, and you have an idea of what the law is at risk of becoming.

Spending money to buy ads or turn out voters is a form of political expression. At least until recently, standard legal doctrine held that such political expression could be restricted only to prevent "corruption or the appearance of corruption," as the Supreme Court ruled in 1976. But what is corruption? It's easy to see why giving $1 million directly to a politician or party might smell of bribery or extortion, but McCain-Feingold put a stop to that. Harder to see is why giving $1 million to an independent group, such as the Sierra Club or the National Rifle Association, would corrupt anybody. After all, private groups are in no position to offer legislative favors or shake down constituents.

Ordinarily, one might suppose it to be a good thing when rich people finance political mobilization and discussion. Where, exactly, is the harm in George Soros's giving $12 million to an independent political outfit that seeks to defeat President Bush? In a recent fact sheet, Democracy 21 and the Campaign Legal Center reply this way:

"Large donations to 527 groups spending money to influence federal elections can buy influence with federal candidates, even if the 527 groups are operating independently. Since such 527 groups are spending money to elect federal candidates, and since the source and amounts of these unlimited contributions are readily available to the candidates, the contributions can buy influence with the federal candidates benefiting from the expenditures by the 527 groups."

In other words, the problem is not corruption, at least not as traditionally understood; the problem is influence. In yet other words, influence is corruption. And in yet other words, because politics is all about influence, politics is corruption—at least until all contributions to political causes are so small that politicians won't feel particularly grateful to anybody.

It is true that some of the biggest 527 groups in 2004 were partisan spin-offs; that was a predictable consequence of placing new limits on parties. But most 527 groups are genuinely independent. The Sierra Club's 527 group, for example, raised and spent $6.2 million on voter-education and get-out-the-vote efforts in 2004. If contributions were limited, "our guess is our program would probably be reduced by 90 percent," says Aimee Tavares, the Sierra Club's political operations director.

The Sierra Club is one of many nonprofit advocacy groups opposing new limits on 527 groups. Some, like the Sierra Club, operate their own 527s; many do not understand how restricting political speech and voter mobilization helps democracy or cleanses politics; and many fear that once 527 groups are regulated, nonpartisan advocacy groups—the so-called 501(c)(4) groups that form the backbone of citizen advocacy—will be the next to face new restrictions.

Public Citizen has already called for a crackdown on 501 groups, saying in a press release last September, "These new stealth PACs should not be allowed to operate with such impunity." Other campaign finance reformers disagree—for now. "You simply will not see the same kinds of things happen" with 501 groups as with 527 groups, Wertheimer says. But when asked whether he would rule out action against 501(c)(4) groups, Wertheimer said, "I would, based on now. If, down the road, people concluded there were massive abuses going on, I assume it would be looked at."

Many reformers say they are merely trying to prevent circumvention of the existing campaign finance law, but that is not really reassuring. "The problem," says Robert F. Bauer, a Democratic campaign finance lawyer with the firm of Perkins Coie, "is that once you have become obsessed with so-called circumvention, with the purity of the reform effort and anything that appears to threaten it, inevitably you have an endless law enforcement patrol that fans out over the countryside looking for fugitives from justice."

If soft money is blocked from 527 groups, much of it may flow to 501 groups. Once 501s' funding is restricted, then individuals' political activities may be regulated. (If George Soros buys too much influence by giving $12 million to a political organization, why let him spend the money himself?) Then the media. (Broadcasts and editorials surely influence elections.) Untethered to any reasonably circumscribed definition of corruption, the law is not just on a slippery slope; the law is a slippery slope.

Here is another plan: Stop. Just stop.

Stop and live with McCain-Feingold for a little while. In law, stability is an important value in and of itself.

Stop and ponder true campaign finance reform, which one more layer of legalistic regulation decidedly is not. Interesting proposals include partial or total deregulation; public financing of campaigns through government subsidies or personal vouchers; creating a system for anonymous donations; and hybrids of the above.

Above all, stop and insist that those who want tighter restrictions on 527s tell us: Where do they propose to stop? "I think we have a right to know at what point people can participate in politics without the FEC coming after them," says Bradley A. Smith, a member of the Federal Election Commission. Can advocates of new restrictions name even one kind of person, organization, or political activity that they believe should be unconditionally off-limits to campaign finance regulators? If they are not required to answer that question now, chances are they never will be.

© Copyright 2005 National Journal

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. This article was originally published by National Journal.