Power to the Swift Boaters!

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BRADLEY A. SMITH, who served as chairman of the Federal Election Commission in 2004, is a professor of law at Capital University Law School in Columbus, Ohio, and chairman of the Center for Competitive Politics.

LAST WEEK, the Federal Election Commission fined, the Swift Boat Veterans for Truth and two other groups a total of $629,500 for violating campaign finance laws during the 2004 election. According to the FEC, these “527” organizations (so named for the tax code provision governing their activities) ought to have registered as political action committees, which would have limited their ability to receive large donations and, in the case of MoveOn and the Swifties, would probably have shut both groups out of the 2004 election altogether.

For decades, only groups that contributed directly to candidates, coordinated their activity with candidates or “expressly advocated” a candidate’s election or defeat in public advertising (with phrases such as “support” or “vote against”) qualified as PACs. But in a landmark ruling, the FEC held that even if the Swifties and MoveOn stopped short of using such magic words in public, they were PACs because their fundraising “clearly indicated that the funds received would be targeted for the election or defeat of specific federal candidates.” All three organizations decided to pay up rather than take on the government in court. The FEC warns that future fines will be more severe.

What did the groups really do wrong? Did they bribe or corrupt politicians? Well, no. You won’t find “Duke” Cunningham, William Jefferson or Bob Ney connected to MoveOn or the Swift Boat Veterans. Did they make illegal contributions to campaigns? Well, no again. Did they seek out special favors or illegally coordinate their efforts with candidates? No. The FEC admitted that, after a “thorough” investigation, it found no evidence that any of the groups operated in concert with candidates or sought legislative favors.


The elitist cognoscenti in Washington, who support anything they think will take money out of politics, are pleased, huffing only that the fines are too small. The FEC admitted to going easy on the groups, given the “uncertainty” in the law. In my view, there is no uncertainty — the groups did not violate the law at all.

But these groups aren’t being punished for making errors in their filing papers. They’re being punished for criticizing politicians. Now, it’s natural that politicians don’t like that and might pressure the FEC to shut their critics up — the FEC reportedly acted in part because of pressure from Congress and a lawsuit brought by Reps. Christopher Shays and Martin T. Meehan — but why should ordinary citizens feel offended by criticism of public officials? Shouldn’t we be more upset by efforts to silence criticism of public officials?

No doubt many Americans think that the Swift Boat Veterans were terrible, smearing the reputation of an honorable Vietnam War veteran. And no doubt many Americans think that was terrible, making misleading and unfounded charges that undermined American unity in time of war. That is what political speech often does. No doubt King George III considered that Thomas Jefferson fellow an irresponsible pamphleteer.

The fact is, George Soros’ contributions to helped that organization voice the concerns of millions of Americans. Similarly, Bob Perry’s contributions made it possible for the Swifties to be heard. When the Swifties held their first news conference in Washington to express concerns about John Kerry’s war record and post-Vietnam War testimony to Congress, the press ignored them. Only when it got money to run ads did the group get wide media coverage. And then tens of thousands of citizens, learning of the group, flooded it with millions in small contributions. In both cases, big money did not drown out the voices of average Americans — it allowed them to be heard.

In what other country can ordinary people have such a profound political effect? Certainly some didn’t like what one group or the other had to say. But isn’t the point of the 1st Amendment that we hear these messages and make up our own minds, without the government telling us whom to believe or silencing voices before we hear them?

If last week’s fines have the desired effect, in future elections we will not hear from groups such as the Swifties or MoveOn. Instead, there will be issues not raised, points of view not heard. The funny thing is, we voters won’t even know who is not getting to speak or what issues are not being raised. Politicians who want to “control their own campaigns” will find this to their advantage. But how this is an advantage for democracy, I’m not sure.