issue ads, 527s, et al

A brief word on issue ads, independent 527 groups, and swift boats.
Let me put this idea up the flagpole, and see who salutes. Why not allow groups that are not connected at the hip to a particular candidate or party to publish their material? If an ad strikes a candidate or society as unfair or baseless, the candidate can repudiate and/or condemn the ad. If a candidate refuses to do either of these, the public can come up with their conclusions as to the politician's campaign tactics.

Kerry condemned the MoveOn PAC's* ad that attacked Bush's National Guard Service, while Bush repudiated the swift boat ad, and called for an end to all 527 spots. The difference between repudiation and condemnation is entirely important in the context of my first paragraph, and recognizing that difference would allow a voting society to have some guard against baseless ads while protecting first amendment rights to speech.

To condemn is to call the ad or group out as baseless. To repudiate is to say, merely, 'hey, I didn't say that.' If a candidate separates himself from the messenger but does not dismiss the message- well, let the voter decide how to finish that sentence. Likewise, if a candidate condemns an ad or a group's tactics, the voter can make due conclusions. A problem with 527 ads is in a group's message being wrongly attributed to a candidate. In my mind, though, condemnation allows a candidate to say 'I do not support the message.' The lack of condemnation, meanwhile, suggests support for the message.

Here, anyway, is a bit of backgroud.
PACs and traditional candidate spending are regulated by the Federal Election Commission--with, among other things, limits on spending and requirements for the candidate to appear personally in the ad. 527s, a tax category existing since 1974, are politically motivated groups, but are not under the FEC's jurisdiction. Since 1996, and prevalent in the 2000 election, the big issue has been whether 527 groups should be treated like PACs and candidate committees (ie- under FEC regulation) if the group's primary purpose is to affect a particular election.

In 2000, Clinton signed a law requiring 527s to disclose their political activities (contributions and spending- in other words, much like FEC regulations). The National Federation of Republican Assemblies sued, arguing the law violates the First and Tenth Amendments and unconstitutionally gives the IRS broad and unchecked authority over political activities and expression. After the trial court ruled the disclosure requirements unconstitutional, the Appeals Court (11th Cir.) reversed, upholding the law. From the Campaign Legal Center:

In reversing the lower court, the 11th Circuit unanimously held that the disclosure requirements, rather than imposing an unconstitutional penalty, were merely a condition placed upon the government subsidy of a voluntary tax exemption. The court noted that "any political organization uncomfortable with the disclosure of expenditures or contributions may simply decline to register" for the exemption in order to avoid the requirements. Further, the court reasoned, "the fact that the organization might then engage in somewhat less speech because of stricter financial constraints does not create a constitutionally mandated right to the tax subsidy."

When Bush signed the Campaign Finance Reform Act into law,this ruling had not come down. Rather, the standing rule was as the district court ruled: the disclosure provisions were unconstitutional. In that context, here is Bush's statement at signing the Campaign Finance Reform Act:

However, the bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections.

I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment.

I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.

As a policy matter, I would have preferred a bill that included a provision to protect union members and shareholders from involuntary political activities undertaken by their leadership.

Individuals have a right not to have their money spent in support of candidates or causes with which they disagree, and those rights should be better protected by law. I hope that in the future the Congress and I can work together to remedy this defect of the current financing structure.

From what I can tell, Bush was primarily concerned with unions and corporations hiding their campaign spending- but was concerned about preventing individuals from supporting various issues and campaigns. As he said, he had "reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election."

Now, he says this:

And in response to reporters' questions, the president once again condemned the so-called 527 groups, which can raise unlimited donations and run attack ads, but cannot directly coordinate their efforts with the campaigns. One of them, called Swift Boat Veterans for Truth, has been running an anti-Kerry ad that has accused Mr. Kerry, the Democratic nominee, of lying about activities in Vietnam that won him four medals. But this time Mr. Bush went a bit farther, and said the ads run by such groups should be stopped.

"All of them," the president said, when asked whether he specifically meant that the veteran's group's ad against Mr. Kerry should be stopped. "That means that ad, every other ad. Absolutely. I don't think we ought to have 527's. I can't be more plain about it, and I wish — I hope my opponent joins me in saying — condemning these activities of the 527's. It's — I think they're bad for the system."

I do not like the president's proposal of complete destruction of 527 groups. I am more inclined to lean toward his position at the signing of the campaign finance bill- although with remaining disagreements. It seems, though, me and the 2002 George W. could have met some compromise with my proposal above.

Let groups speak. They will surely say stupid things- and those stupid things will sometimes unfairly hurt their target, and sometimes will unfairly hurt the candidate they purport to support. Let the candidate speak out in favor or against the ads, and let a responsible public determine how to set up the fragments landing in their living rooms.


*MoveOn, the group commonly and mistakenly attributed by Repubs and the Media as a 527, is actually three things. There is a MoveOn PAC (this group issued the ad against Bush's Nat. Guard service, and the ad was condemned by Kerry); the MoveOn 527, that has not run an ad in four months; and the MoveOn.org- an advocacy under the 501 tax category.