Letter From Senator McCainCampaign Reform and Blogs

I received a letter in the mail yesterday from Senator McCain (R) Arizona after writing him almost two months ago about questions on the effect of the BCRA (Bipartisan Campaign Reform Act 2003) on bloggers.

Some of you might remember the hoopla that was raised when it was implied that internet sites that support a particular candidate or link directly to campaign sites or direct traffic there in anyway might come under scrutiny as developing "soft money" donations under the guise of "coordinated efforts" outside of the normal and supposedly "transparent" accounting practices of candidates and parties. Most of the blog world was up in arms considering that many of us post about political topics and supported a candidate in the last elections and in local elections.

There was a real question about whether somebody like me would be considered "coordinating efforts" if I mentioned a campaign or party site or discussed raising money or even gave "free" support to the candidate. The question of "free speech" and "open political debate" was on the rampage through the blog world.

My letter from Senator McCain's office is basically a form letter and did not address my question directly. However, it did include some interesting information, so I thought I'd put it out here for discussion.

Since it is a paper letter and not electronic, I will reproduce it here without changes except to only impart the areas I think were interesting and pertinent:

President Bush signed the Bipartisan Campaign Reform Act of 2002 (BCRA) into law on March 27, 2002. On December 10, 2003, the Supreme Court, in McConnell v. FEC, upheld the constitutionality of key provisions of BCRA.

From the Supreme Court:

The Bipartisan Campaign Reform Act of 2002 (BCRA), which amended
the Federal Election Campaign Act of 1971 (FECA), the Communications Act of 1934, and other portions of the United States Code, is the most recent of nearly a century of federal enactments designed to purge national politics of what [is] conceived to be the pernicious influence of big money campaign contributions. United States v. Automobile Workers, 352 U. S. 567, 572. In enacting BCRA, Congress
sought to address three important developments in the years since this Court’s landmark decision in Buckley v. Valeo, 424 U. S. 1 (per curiam): the increased importance of soft money, the proliferation of “issue ads” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections.

On page one of this document is a long list of challenges from every side of the discussion and political structure, including the NRA, DNC, RNC, ACLU, etc. I must say that there is a common sense cliche that says, "if you pissed everyone off, you're probably doing the right thing". This seems to have done the job and then some.

Continuing on with the Supreme Court findings:

With regard to the first development, prior to BCRA, FECA’s dis-
closure requirements and source and amount limitations extended only to so-called “hard money” contributions made for the purpose of influencing an election for federal office. Political parties and candidates were able to circumvent FECA’s limitations by contributing “soft money”—money as yet unregulated under FECA—to be used for activities intended to influence state or local elections; for mixed-purpose activities such as get-out-the-vote (GOTV) drives and generic
party advertising; and for legislative advocacy advertisements, even if they mentioned a federal candidate’s name, so long as the ads did not expressly advocate the candidate’s election or defeat. With regard to the second development, parties and candidates circumvented FECA by using “issue ads” that were specifically intended to affect election results, but did not contain “magic words,” such as “Vote Against Jane Doe,” which would have subjected the ads to FECA’s restrictions. Those developments were detailed in a 1998 Senate Committee Report summarizing an investigation into the 1996 federal elections, which concluded that the soft-money loophole had led to a meltdown of the campaign finance system; and discussed potential reforms, including a soft-money ban and restrictions on sham issue advocacy by nonparty groups.

In other words, if there is a law, someone will figure out how to get around it. I think that we are all aware of what kinds of ads and groups this discussion is talking about. Mainly folks like "Moveon.org" and some "conservative" advocacy groups who claim to be separate entities, but probably share board members and other active members with the political parties. We're talking about unregulated donations like the milllions poured into these "advocacy" groups by George Soros types who don't have to claim they were giving it to support a candidate and the FEC could not touch it because it was not directly given to a candidates campaign or party.

McCain makes this clear in his letter:

BCRA's overriding goal was to reduce the corrupting influence of unlimited soft money contributions to political parties, usually solicited by federal condidates and office holders.

[snip]

While BCRA has proven successful, the recent growth of political committees commonly known as "527" groups, referring to their tax-exempt status under Section 527 of the Internal Revenue Code, have emerged as a new vehicle for raising and spending illegal soft money.

Here is where the "wicket" gets sticky. The letter is already painting all of these groups with a very wide brush and indicating that the donations they receive are "illegal". The letter makes this clear again in this sentence:

527 groups supporting both presidential candidates illegally raised and spent tens of millions of dollars in soft money on ads and partisan voter mobilization efforts to influence the presidential election.
[snip]

Four individuals alone gave a combined total of $78 million to these groups!

So, the question remains, how is it illegal and under what law? McCain explains here:

The Federal Elections Commission (FEC) has shamefully failed to do it's job to require these obviously political groups to register as political committees, which would obligate them to comply with the Federal Election Campaign Act of 1974.

Here is a simplified explanation of the FECA with contribution tables. Based on this explanation, a group like "Moveon.org" or "Swiftboat Veterans For Truth" would have to be considered "PACs" or Political Action Committees. This would have limited George Soros as an individual from donating more than $5000 per year to Moveon.org. He could have given $5000 to another group and another, but he could not have given $2million as is the purported amounts.

In regards to bloggers, the question then revolves around the amount of money donated to a campaign or candidate in a federal election (because that is the only election that the national congress can make rules about) and whether one would be considered an individual or a PAC since the limits for these donations very depending on the this concept.

Where the sticky comes in for bloggers would be whether you have a donation button on your blog, how much you bring in through donations and how much each individual contributes. The other sticky would be how much a blogger "coordinates" with a candidate or campaign party. These two issues would have to come together in order to even make the question arise.

I'm not sure about all the blogs out there, but it seems to me that someone like me would not be affected and that most of the blogs I've frequented, including (during the campaign): Blogs For Bush, The Kerry Corner, etc would not be affected either. To my knowledge, none of these blogs received these kinds of donations. Although, after a disclosure that KOS received a hefty amount of money from the Kerry campaign to blog for him, this blog could be affected as he would have then been acting as a PAC. Although, KOS denied this saying that he did not coordinate with the campaign, blogged about what he wanted to blog about, etc. In which case, he would have been acting as a media outlet and not as a PAC.

I believe that the real issue here is the limitations of the FEC. Clearly, this organization is unable to police everyone and every group. In the land of political advocacy and fundraising dinosaurs, blogs are way down the list of entities that the FEC would or could possibly try to control. It is more likely that nationally acknowledged groups, like Moveon.org or Swift Boat Veterans for Truth would come under scrutiny, particularly with the amounts of money flowing in to their coffers.

Senator McCain makes this clear in his letter:

Because the FEC has failed to properly enforce federal law and require the 527 grouops to register as political committes, I [ed..McCain] have introduced legislation along with Senator Feingold that would require all 527s to register as political committees unless they rais and spend money solely in connection with non-Federal candidate elections.

It is very likely that this legislation will not only pass, but be held up by the Supreme Court as constitutional based on the rulings in challenges to the recent BRCA:

Such limits are subject only to “closely
drawn” scrutiny, see 424 U. S., at 25, rather than to strict scrutiny,
because, unlike restrictions on campaign expenditures, contribution
limits “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication,” e.g., id., at 20–21. Morever, contribution limits are grounded in the important governmental interests in preventing “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” E.g., Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 208. The less rigorous review standard shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise, and provides it with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the political process’ integrity. Finally, because Congress, in its lengthy deliberations leading to BCRA’s enactment, properly relied on Buckley and its progeny, stare decisis considerations, buttressed by the respect that the Legislative and Judicial Branches owe one another, provide additional powerful reasons for adhering to the analysis of contribution limits the Court has consistently followed since Buckley. The Court rejects plaintiffs’ argument that the type of speech and associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley’s contribution limits. Pp. 24–32.

The basis of Buckley v. Valeo:

In a lengthy per curiam decision, the court sustained the Act's limits on individual contributions, as well as the disclosure and reporting provisions and the public financing scheme. However, the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds were found to be constitutionally infirm in that they placed severe restrictions on protected expression and association, yet lacked any compelling countervailing government interest necessary to sustain them.

So, I could sit here an blog all day about any federal candidate, for or against, for free, spend as much money as I like making the site "eye catching" or advertising the site, but, if I coordinate with a campaign or candidate AND receive very large donations (instead of doing it for free) from campaigns, candidates, PACs and even individuals AND I come to the attention of the overburdened FEC or register the site as a 527, I might have a problem.

So, the question of whether the blogosphere could come under the scrutiny of the FEC is still open, but many things would have to come together to make it happen.

I'm no legal expert, but it does seem to me that the blog world has very little to worry about here.

The fight maybe whether any other "speech" falls under these rules and whether it portends a "slippery slope". Did I mention that the FEC is overburdened and under staffed?