The decision by the Federal Election Commission to defer action on new rules to constrain the activities of so-called 527 political organizations is being portrayed as an utter collapse of the new McCain-Feingold campaign finance law. In fact, nothing could be further from reality.
The dispute over whether several new Democratic-leaning independent political groups should be required to register with the FEC and abide by contribution limits is a legitimate one, and there is merit in the regulatory proposal — rejected by the full commission — that was offered by Commissioners Scott Thomas and Michael Toner. But this argument largely concerns unresolved questions stemming from judicial and FEC interpretations of the 1974 law that governs federal election law — not McCain-Feingold.
Had the Thomas-Toner proposal been adopted, the Media Fund and America Coming Together would have faced tougher requirements on the sources and amounts of contributions they receive. But supporters of the Media Fund and ACT still would have had legal options to continue their campaign activities. ACT would have had to raise more hard money to match its soft-money contributions, but it had already been moving in that direction, as had Moveon.org, which is now focusing its campaign activities on hard-money fundraising and expenditures.
Millionaire contributors to the Media Fund could have separately made independent expenditures in the form of television ads that expressly advocated the defeat of President Bush. Unions could have financed their own “issue ads” supporting Sen. John Kerry (D-Mass.) and attacking Bush until 30 days before the party convention or 60 days before the general election. Corporations would have retained the option to sponsor similar ads. Thereafter, even without FEC action, a key provision of McCain-Feingold kicks in. As the election nears, no 527 organization can use corporate or union money to finance broadcast ads that feature federal candidates.
McCain-Feingold was not written to bring every source of unregulated federal campaign funding within the scope of the law. Rather, it was designed to end the corrupting nexus of soft money that ties together officeholders, party officials and large donors. The law’s principal goal was to prohibit elected officials and party leaders from extracting unregulated gifts from corporations, unions and individual donors in exchange for access to and influence with policymakers.
Indeed, the law has accomplished this objective. Members of Congress and national party officials are no longer soliciting unlimited contributions for the party committees, nor are they involved in the independent fundraising efforts of the leading 527 groups. The FEC’s decision to defer action, therefore, does not pose the same risk of corruption as did the soft-money decisions of the past.
One of the fundamental concerns raised by the activities of 527s is that these groups, with their ability to receive unlimited contributions, would overshadow the candidates and weaken the role of parties in the electoral process. The new law, however, increased contribution limits to candidates and parties, to offset the effects of inflation and to ensure that parties remain major players in federal elections. Here, the evidence is overwhelming that the law’s objective is being realized.
Bush and Kerry have both registered extraordinary fundraising success. Kerry has already raised more than $110 million, while the president has raised more than $200 million. In raising these sums, the presidential nominees have attracted the support of more than 500,000 donors who did not give money during the 2000 campaign. Congressional candidates, too, are also reaching out to new donors, with fundraising up 35 percent over the last cycle.
And in the first 15 months of this cycle, the national party committees have raised more than $430 million in hard money alone — $60 million more than they had raised in hard and soft money combined at the comparable point in the previous presidential cycle. This financial strength reflects the parties’ success at adding more than 2 million new donors to their party rolls. For all the attention they are garnering, these 527 groups — both Democratic-leaning and Republican-leaning — pale when compared to the activities of the parties and candidates.
The 2004 elections have enormously high stakes. Supporters of Bush and Kerry are highly motivated to boost the election prospects of their favored candidate. All signs point to a vibrant get-out-the-vote effort by both parties and a rough equality in funding by and on behalf of the two major presidential campaigns. This reflects the 50/50 partisan division in the country and suggests that a disparity in resources is unlikely to determine the outcome of the presidential election.
The FEC has cheered some and disappointed others with its decision to defer new rulemaking on independent political organizations. While we empathize with the critics’ concerns, we nonetheless take satisfaction that the major objectives of the new campaign-finance law are being realized.
Free speech shouldn’t be a partisan issue, but it has been drawn into the larger dynamics of polarization in this country.