Bauer Takes on Foley and Tobin on Regulating 527s

For those of you who did not have enough of the pre-McConnell debates between Ohio State law professor Edward Foley and Democratic election lawyer Robert Bauer on the constitutionality of certain provisions of McCain-Feingold, there's more.

The new debate started January 7, in this BNA Money and Politics article by Foley and his OSU colleague Donald Tobin arguing that the FEC has the power to constitutionally regulate at least some "527 organizations" (those with a major purpose of influencing federal elections) as political committees. One important implication of such a holding would be that these organizations would be limited to accepting individual contributions of $5,000, even if the organizations made only independent expenditures (or electioneering communications) not coordinated with any candidate for federal office.

As I pointed out here, there are important partisan political implications of this question. Thus far, Democratic-leaning organizations are the ones that are pushing the 527 strategy, in part to make up for the loss of the Democratic Party's ability to compete with the Republican Party in raising hard money. So Republicans are now pushing the FEC to regulate 527s as political committees, and it appears that Republican members of the FEC are sympathetic as they decide some matters in advisory opinions and begin an accelerated rulemaking on the topic.

Now Bob Bauer has weighed in with The 527 Debate and the Foley/Tobin Theory of 'Major Purpose,' which Bauer has posted on his Moresoftmoneyhardlaw website. Bauer makes a number of points but his two most important points are the following:

(1) It is inconsistent with congressional intent to regulate 527 organizations as political committees.

(2) The constitutional basis for regulating contributions to 527 organizations that make only independent expenditures (or electioneering communications) uncoordinated with a candidate is uncertain.

I have not looked independently into Bauer's first point. On his second point, Bauer is right that the constitutional question hinges on how we read McConnell's cryptic footnote 48. I agree with Foley and Tobin's read of footnote 48 that it essentially reinterprets the earlier California Medical Association case to seemingly allow regulation of groups that make only independent expenditures. (See here at 34-35.)

-- 
Professor Rick Hasen 
Loyola Law School 
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