TCS Daily

An Exercise in Overreaction

By Pejman Yousefzadeh - September 2, 2004 12:00 AM

When asked his response to the attacks on John Kerry's service record and anti-Vietnam War views launched by the Swift Boat Veterans for Truth, President Bush has generally responded by praising Senator Kerry's service record, calling it "honorable." The President has pointed out as well that he's been the victim of quite a few attacks by 527 organizations (which the Swift Boat Veterans qualify as), and has called on Senator Kerry to join the President in calling for a ban on speech by 527 organizations.

This call for a ban may indeed be good politics. However, calling for the banning of speech by 527 organizations is precisely the wrong way to address the phenomenon of such organizations. Instead of seeking to restrict speech, President Bush should be urging the increase of political speech as the best way of ensuring that there is a systemic check against rhetorical excess engaged in by any 527 organization. And the best way to increase political speech is to get rid of the Bipartisan Campaign Finance Reform Act, also known as McCain-Feingold. Because McCain-Feingold restricts political parties and their use of soft money -- while allowing 527 organizations to receive unlimited amounts of soft money -- the check against fallacious claims by 527 organizations is lessened.

Prior to the congressional enactment of McCain-Feingold, and its validation by the United States Supreme Court, soft money contributions were unregulated -- and could therefore be donated in larger portions -- by the Federal Election Campaign Act of 1971.

The Supreme Court's ruling in both the McConnell case and in Nixon v. Shrink Missouri Government PAC constitute a retreat from the Court's earlier position in Buckley v. Valeo that campaign contributions should be protected with the highest standard of constitutional protection afforded to other forms of political expression. Now that McCain-Feingold has been both passed by Congress and ruled constitutionally permissible by the Supreme Court, a soft-money ban is in effect for the political parties.

The loophole in McCain-Feingold is, however, the ability to donate unlimited amounts of money to 527 organizations. Because of this loophole, soft money is channeled into one particular form of non-profit political organization, which goes ahead and uses it to attack political candidates. Thanks to the 527 loophole, the Swift Boat Veterans for Truth can attack Senator Kerry, while left-of-center 527 organizations can attack President Bush.

Naturally, neither President Bush nor Senator Kerry is altogether pleased about being attacked by 527 organizations. However, because there are more 527 organizations attacking the President than there are attacking Senator Kerry, the Kerry campaign is not likely to sign on to the President's call to eliminate 527's from being able to participate in political discourse. It makes no sense from a political perspective for Senator Kerry to do so -- however much the President's call for banning 527 organizations might play well in the public sphere.

But partisanship aside, from a policy perspective, the call makes no sense either. The way to combat an argument is not to proceed directly to a call for banning the arguer. Rather, it is to encourage more speech that might serve as a check on certain forms of advocacy while encouraging more robust debate in general. The reason that 527 organizations have been able to prosper in the McCain-Feingold world is that while 527's are able to benefit from soft money thanks to the loophole in McCain-Feingold, political parties have seen their ability to advocate restricted thanks to the legislation -- along with officeholders and candidates for office.

It should therefore come as no surprise that 527 organizations are flourishing -- while McCain-Feingold prevents political parties from using soft money, unlimited soft money contributions can be made to 527 organizations. And since 527 organizations are harder to keep track of and hold to account than are the major political parties, it is also harder to keep track of and rebut political speech by 527 organizations that may skirt the facts. By contrast, when one of the major political parties makes a non-credible claim in the course of political speech, it is easier to hold that party to account.

It would be easier to hold the claims of a 527 organization to account if the restrictions against political parties that are part of McCain-Feingold are eliminated. The ability of 527 organizations to receive potentially unlimited amounts of soft money from billionaires like George Soros -- along with the lack of restrictions on Internet advertising -- mean that in many respects, 527 organizations may have a bigger megaphone with which to advance their views than will the political parties. There is no reason political parties should not have the restrictions imposed against them by McCain-Feingold removed so that they can combat the statements of 527 organizations that are on the other side. In the current election cycle, Republicans would likely benefit from this more, since as mentioned earlier, there are more anti-Bush 527 organizations than there are anti-Kerry organizations. But that could very well change, and change dramatically, which means that Democrats would also be well-served by acceding to a removal of restrictions on 527 organizations.

It is bad enough that McCain-Feingold restricted portions of political speech. It would be even worse if that error was compounded by restricting 527 organizations instead of simply causing such organizations to have to compete with rejuvenated political parties in the debating arena.


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