Parties’ Use of ‘Soft Money’ From Businesses Further Muddies Waters

The Republican Party blasted Democratic presidential candidate Al Gore in a recent television ad that showed him at a Buddhist temple fund-raiser while an announcer tut-tuts, “There’s Al Gore, reinventing himself on television again.”

Democrats also attacked, hitting the GOP presidential ticket with an ad that charged: “George Bush? Siding with the big drug companies. The Gore plan: fighting for our seniors.”

Attorneys for both parties agree these ads would be illegal if they were designed “for the purpose of influencing” the presidential election because they were paid for with unlimited “soft money” donations from corporations, who are prohibited from giving to candidates’ campaigns.

Watchdogs scoff, but the lawyers contend these are “issue ads” designed to educate voters about important topics--not change their vote. With that new interpretation, both parties have shirked the appearance of independence they attempted in 1996 and are now openly allowing their candidates to direct soft-money-financed advertising.

“We can now see the full effect of the breakdown of our campaign finance laws,” said Sen. Russell D. Feingold (D-Wis.), co-sponsor of a bill to crack down on such practices. “What we now have . . . is a political ad war funded by corporate contributions, which is exactly what the federal election laws have tried to prevent.

“The public certainly cannot be blamed for not recognizing the fine legal distinctions between ads run by the parties and ads run by the candidates, or ads that are supposedly about issues and ads that are about elections,” he said.

On Wednesday, a trio of prominent watchdogs filed a lawsuit that seeks to circumvent the so-far toothless Federal Election Commission and obtain an expedited federal court ruling to stop the ongoing coordination.

Common Cause, whose president is one of the plaintiffs, has already complained to the Justice Department and the FEC. The new suit is filed under a provision that allows it to be heard by a three-judge panel of the U.S. District Court in Washington. The ruling would clarify the rules about coordinated advertising--not find whether the parties have been in violation to date.

“It is our hope that the courts will make clear what is obvious to everyone in the country except the FEC,” said Scott Harshbarger, president of Common Cause. “That these party ad campaigns are a massive subversion of our campaign finance laws--laws meant to protect all of us from the corrupting influence of big special-interest money.”

As the presidential advertising war has intensified in recent weeks, officials have made little secret about the coordination between the candidate campaigns and the political parties. So far, the parties have spent a combined total of $60 million on “issue ads” since June.

GOP nominee Bush has openly directed the Republican Party to pull ads that he didn’t like. Gore has hired the same media consultants who are creating commercials for the Democratic Party.

All of the groups involved--the watchdogs, the FEC, the campaigns and the political parties--agree that the 2000 advertising war is being waged in a gray area of election law.

During the last presidential election in 1996, the rules were generally understood to limit coordination between the parties and the candidates. Still, there was plenty of suspicion about coordination during the campaign and later investigations found substantial evidence of it.

Federal auditors found that senior strategists from both President Clinton’s and former Sen. Bob Dole’s campaigns met regularly with party officials to plan their parties’ advertising strategies.

Clinton acknowledged that he reviewed storyboards for Democratic Party ads before they were broadcast. A 1999 memo from the FEC’s general counsel concluded that the Democratic meetings “planned and implemented these nominally separate advertisements as a single, integrated media campaign.”

But last year, the FEC rejected a recommendation for multimillion-dollar fines against the Republican and Democratic campaigns in a 6-0 vote. Earlier this year, the commission deadlocked, 3 to 3, over its general counsel’s finding that the Democrats’ coordination was substantial enough to warrant action against the campaign or the party.

After the ruling, political insiders predicted that the 2000 presidential campaign was certain to involve many of the same controversial practices.

One example of the early coordination is that the two major parties’ ads are being produced or placed by the same consultants working for the candidates.

On the Democratic side, consultants Robert Shrum, Bill Knapp and Carter Eskew are writing, producing and placing spots for the DNC and the Gore campaign. On the Republican side, the firm run by media consultant Alex Castellanos is buying air time and placing ads for both the GOP and the Bush campaign.

But how much coordination is too much is a question left open by the law and federal authorities.

“Nobody knows where the line is, of course, because the FEC has declined to draw one,” said Joe Sandler, attorney for the Democratic National Committee. “We’ve asked for the FEC to come up with a clear standard; they haven’t done so. The people [being] regulated can’t be making up the law.”

Watchdog groups say the FEC is a poor tool for enforcement since its members are appointed by some of the lawmakers they are supposed to police. Clinton has appointed or reappointed all six of the current members. The panel--with three Democrats and three Republicans--is also confirmed by the Senate.

Even FEC officials acknowledged the ambiguity facing today’s campaigns.

“It’s kind of the worst of all worlds,” said Scott Thomas, a Democratic member of the commission who served as its chairman in 1999. “I have to say, I’m somewhat skeptical that we will get any sort of meaningful clarification of the law in time to do anything about the 2000 election cycle.”

Thomas said the parties “are proceeding on the rationale that, because the law is sufficiently ambiguous, [they] can press on.”

The parties and the candidates have decided to interpret the existing law to mean that unless a commercial contains “express advocacy”--which to them means specific words like “vote for”--then it isn’t “influencing” a presidential election.

Their express advocacy definition is from a footnote in a landmark 1976 Supreme Court decision--Buckley vs. Valeo--that listed a handful of phrases--now known as the “magic words”--that would qualify, including “vote for” and “defeat.”

The Buckley decision also cleared the way for wealthy donors to give unlimited amounts to independent committees. But it maintained some of the Watergate-era limits on contributions to candidates, such as the $1,000 maximum that an individual can give in a primary or a general election campaign. Those donations are known as “hard money.”

Sandler and attorneys for the Republican Party contend the attack ads they are broadcasting against the presidential candidates do not meet the express advocacy test, allowing them to use soft money donations to fund the commercials and to coordinate essentially without limit.

“There is no express advocacy in these ads,” said Clifford May, a spokesman for the Republican National Committee. “We are identifying candidates in these ads, but we’re discussing the issues and the positions on the issues.”

Watchdogs, like Common Cause, contend the parties and the candidates should be prohibited from coordinating their advertising campaigns regardless of the express advocacy language.

“These are clearly ads about the candidates,” said Donald Simon, a lawyer for Common Cause. “It defies common sense to think that these ads are simply discussing issues without trying to influence the presidential election. That’s just a ludicrous assertion.”

Federal law allows the parties to spend a limited amount--determined by a formula--for activities coordinated with their candidates. This year, the formula means the parties can each spend about $13.7 million in hard money--for any purpose--under the direction of their White House candidates.

In one of the latest examples of coordination that is troubling watchdogs, Bush said last month that he and his advisors stepped in to halt the GOP from running a soft-money-funded spot he found misleading.

“I can’t point to some regulation that says, ‘This is the line,’ ” said Ian Stirton, an FEC spokesman. “It’s the way it’s interpreted. If someone thinks there’s been too much coordination, they can file a complaint.”