A GOP Flip-Flop on Political Ads

To counter the $100-million-plus that President Bush’s campaign committee is expected to spend on television advertisements supporting Bush’s reelection and criticizing presumptive Democratic nominee John F. Kerry, a number of left-leaning organizations, including Move On.org, have begun their own ad campaigns. These counter-ads, which are highly critical of Bush, are being paid for in part with large contributions from wealthy individuals, including George Soros.

The Republican National Committee has sent letters to television stations telling them that the MoveOn.org ads are illegal and should not run. The Bush campaign has complained to the Federal Election Commission about similar activities conducted by the Media Fund, another Democratic-leaning organization. Republicans in the House and Senate have held hearings on whether these new groups are engaged in illegal activity.

The groups, called 527s, for a provision of the Internal Revenue Code under which they are organized, claim they are doing nothing wrong.

Put aside the ironic component of the debate that Republicans -- who had argued as late as last fall before the Supreme Court that most campaign finance limits violated the 1st Amendment rights of speech and association -- are calling for stricter enforcement of campaign finance laws than we have ever seen. The really interesting question is whether these ads should be illegal. The question goes to the heart of why we regulate campaign money in the first place.

The Supreme Court has said it is fine to limit the amount of contributions to candidates (and to committees that make contributions to candidates) in order to prevent corruption and the appearance of corruption. But it is unconstitutional to limit the amount that individuals may spend independent of candidates on advertising that supports or opposes the candidates. The court has said the link to the possibility of corruption is too weak and the free speech costs too great to allow regulation of these “independent” expenditures.

In December, the court upheld provisions of the McCain-Feingold law preventing political parties from accepting six-figure donations from corporations, unions and wealthy individuals. It did so because these entities could use donations of this so-called “soft money” to parties to gain access to elected officials.

Since McCain-Feingold hobbled the ability of the Democratic Party to raise these large, unregulated sums, it is not surprising that independent but Democratic-oriented 527s have emerged in their place, particularly to counteract Bush’s large war chest.

Republicans are now claiming that these groups should be regulated as “political committees” under federal campaign finance law, which would limit donations to these groups from individuals to $5,000.

The Federal Election Commission is expected to decide by May whether and how 527s should be regulated. The rule-making raises difficult questions of the meaning of federal election statutes. But even if the election commission concludes that these groups should be regulated, it may be unconstitutional to do so.

The 527s do not coordinate with candidates or parties. Unlike the political parties, 527s are not selling access to elected officials in exchange for large donations.

Under the Supreme Court cases that say one cannot limit spending on campaigns independent of candidates, it is hard to see how contributions to these groups could constitutionally be regulated.

What is wrong with a $10-million donation by Soros to groups, including MoveOn.org? One possibility is that such a donation could buy gratitude from Kerry and other Democrats, raising the specter of corruption. Another is that it is simply unfair that a billionaire could engage in spending out of proportion to the public’s support for his ideas.

Both of these arguments are worthy of consideration, but they fly in the face of what the Supreme Court has said. The court has refused to acknowledge that independent spending can lead to corruption or its appearance, and it has explicitly rejected the idea of leveling the playing field as a strong enough interest to justify restrictions on 1st Amendment freedoms.

Perhaps the time has come to revisit these issues, and the Supreme Court recently hinted it might do so. Meanwhile, arguments that 527 advertising is illegal appear ill informed, premature or disingenuous.

Richard L. Hasen, a professor at Loyola Law School, is the author of “The Supreme Court and Election Law: Raising Equality From Baker v. Carr to Bush v. Gore” (NYU Press, 2003).