Republican fundraising strategists have a new motto: If at first you don’t succeed, try to bring everyone else down with you. Or that’s what free speech advocates on both sides of the political playing field charge the GOP is doing with its latest maneuver in the battle over campaign finance reform. Hoping to silence the Democrats’ gaggle of partisan advocacy groups, they’ve set in motion a process that could bar all nonprofits from a wide swath of political communications.
In December, the U.S. Supreme Court upheld a new law banning political parties from using “soft money” on elections, limiting them to small contributions from individual donors. Republicans had argued that the law was unfair because it left advocacy groups able to raise money unchecked and spend it on the same sort of politicking Congress aimed to regulate. Indeed, these organizations are among the few real weapons the Dems have against George Bush this fall.
When the Court rejected the Republicans’ argument, party legal activists turned to the Federal Elections Commission. A GOP shop called Americans for a Better Country filed a request asking the FEC to clarify what the group can and cannot do under the new law-presumably hoping to prompt an opinion that reined in partisan advocacy.
The FEC general counsel’s response, issued January 29, has sent chills through nonprofit advocacy groups nationwide. His “advisory opinion” said yes, the new McCain-Feingold restrictions on financing political activity do apply to partisan advocacy of all kinds–not just the work of political parties. Those restrictions apply specifically to those groups’ communications, thanks to a 1974 legal precedent that holds that political contributions constitute free speech as governed by the First Amendment.
Currently, tax law prevents nonprofits–both those with 501c status and those that operate as “527s,” named after a related subsection of IRS law–from engaging in advocacy that directly impacts an election. They can participate in a voter registration drive, for instance, but can’t sign up voters for a particular party or candidate. But under the rules as interpreted by the FEC general counsel, any communication that includes either criticism or praise of a candidate for federal office would fall under the new campaign finance rules, and thus cannot be funded with any donation larger than $5000. Want your members to send postcards to specific lawmakers for support on your latest advocacy campaign? Rate their voting records? Not legal, said the counsel, unless your group adheres to campaign finance rules.
Jim Bopp, a conservative legal activist who represents many GOP-affiliated groups, says progressive nonprofits are getting their just desserts. He argues the new campaign finance law violates the First Amendment, and that progressives should have joined people like him opposing it in the first place. “Now we have the equally unseemly spectacle of Republicans seeing a partisan advantage” in limiting free speech, he said. “They’re thinking, ‘Hey, if the Supreme Court says the Democrats can screw us, then by God we’re going to screw them.’ Welcome to hell.”
But within 24 hours of the draft opinion’s release, a group of progressive legal activists in D.C., led by People for the American Way, had gathered 324 signatures from nonprofits around the country for a letter urging the FEC commissioners to reject it. The FEC was so overwhelmed by the response that it postponed a planned decision on the matter until February 18.
There are lots of reasons for the Commissioners–three Republicans and three Democrats–to throw the opinion out. Not least of these is that Congress explicitly sought to target political parties for special treatment under the new law, and the Supreme Court has already ruled that this is an appropriate distinction to make.
In addition, as the nonprofit trade advocacy group Independent Sector noted in its own letter to the FEC, by defining the sort of advocacy nonprofits do as relevant to federal elections, the ruling would also put them all in immediate violation of the tax laws that prevent them from engaging in that work. So even if a group tried to comply with campaign finance rules, it would disqualify itself for tax-exempt status. People for the American Way’s Elliot Minceberg says that if the FEC adopts the ruling, one option is to challenge it in court on all these grounds.
It wouldn’t be the first time the FEC found itself in court defending an expansive definition of its power. “One of the problems with the FEC is that its general counsel’s office is ridiculously out of control,” Bopp scoffed. “Whenever facing the question, ‘Can we regulate this?’ they almost never say no.”