Bopp Letter on 527s

Jim Bopp has published the following letter in Roll Call. It does not appear on the newspaper's website, but here it is (with permission of Roll Call):

527 Rules: Tempting But Not Needed
Emboldened by a Supreme Court victory in McConnell v. FEC upholding nearly every McCain-Feingold amendment to the Federal Election Campaign Act, the
"reform" industry seeks to trick Republicans into supporting further restrictions on advocacy group participation. The purported targets of these new restrictions are newly created section 527 groups such as America Coming Together and the Media Fund, whose announced purpose is defeating President Bush. Republicans should not take this bait.

The reform groups' argument is that these groups are "circumventing" McCain-Feingold by "attempting to replace political parties" by spending "soft money" on "federal election activities" that political parties may not do under McCain-Feingold. The reformers want to force these groups to register as political action committees and have them fined and punished. The Federal Election Commission has responded by considering new regulations and is considering several advisory opinion requests on this subject.

Republicans appear to be nibbling at this bait. Republican FEC Commissioner Michael Toner recently published a letter in Roll Call ("527 Rules Needed Now," Jan. 27) expressing concern that "outside tax-exempt groups are seeking to essentially replicate, with soft-money funds, much of the issue advertising and voter-mobilization activities that the national parties financed with soft-money funds before the new law was passed." The Republican National Committee filed FEC comments arguing that the political party restrictions on "federal election activities" should "be applied across the board."

The FEC¹s general counsel has now weighed in, arguing in a draft advisory opinion to be considered Thursday that "federal election activities" should be "the benchmark" for determining whether a citizens group is a political action committee. "Federal election activities," under McCain-Feingold, include voter registration activity within 120 days of a federal election, voter identification, get-out-the-vote activity, generic campaign activity ("Vote Republican"), and any communication that "promotes or supports" or "attacks or opposes" a federal candidate. McCain-Feingold requires political parties to spend "hard money" for such activities.

The Supreme Court upheld these political party restrictions because the close relationship between federal candidates and political parties created an appearance of corruption when political parties raised "soft money" for this purpose. Thus, the court held that political parties differ from advocacy groups and may be more severely restricted in their activities that might influence federal elections.

Advocacy groups have always been able to do "federal election activities," and McCain-Feingold did not apply these restrictions to advocacy groups. The court's decision explained that "[i]nterest groups ... remain free to raise soft money to fund voter registration, GOTV activities, mailings and broadcast advertising (other that electioneering communications)." Everyone knew these groups would do so if McCain-Feingold were adopted. So McCain-Feingold, for all the damage that it has done to our democracy, didn't do all the dirty work "reformers" want done. They believe that advocacy groups picking up the activities prohibited to political parties constitutes "circumvention" of McCain-Feingold. But citizens groups continuing to exercise any of the residual freedoms left after McCain-Feingold is not a "circumvention" of those restrictions. "Reformers" believe this violates the "spirit" of McCain-Feingold, since that "spirit" is an abiding hostility to citizens participating in our democracy. But one can only violate the letter of the law, not its "spirit."

Furthermore, the announced purpose of these groups to defeat Bush is not enough to justify regulating them, no matter how much I might disagree with them. I represent advocacy groups such as the National Right to Life Committee, which has endorsed President Bush for re-election. Both sides can take such positions legally and escape federal regulation as long as they conduct their activities in conformance with the law.

But how tempting it is: using federal law to shut down Democrat-leaning groups, gaining a temporary partisan political advantage for the Republicans. And since the Democrats in Congress did so much to foist McCain-Feingold on us, wouldn't a payback be sweet (and, in their view, hell). But at what a terrible long-term cost. The FEC would be expanding the Draconian political party restrictions to all advocacy groups. There is no authority in McCain-Feingold for such a step, and the FEC has no authority to go beyond Congress' law.

To date, most Republicans can say that they have resisted the advantages McCain-Feingold gave incumbents because they believed in freedom, the right of citizens to participate robustly in our democracy and the First Amendment. This was a hard-won honor and a position that will ultimately be vindicated. It should not be relinquished for temporary political gain.
James Bopp Jr.
General Counsel
James Madison Center for Free Speech

Editor's note: The author represented 16 plaintiffs challenging the
McCain-Feingold law.

New Complaint Against Arizona Public Financing System

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Professor Rick Hasen 
Loyola Law School 
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