We’re old enough to remember when the Republican mainstream was against restricting campaign finance. That was about four years ago. Way back then, House leaders were decrying McCain-Feingold as damaging to the GOP’s electoral fortunes and probably unconstitutional. How times change. The current crop of House leaders, acting with the White House’s blessing, is set to introduce legislation this week that would restrict the ability of so-called 527s–nonprofit groups named for the section of the tax code under which they operate–to raise money for political causes. Quite apart from the unseemliness of this about-face, the legislation deserves to be defeated. It is both politically unwise and, more important, an objectionable restriction on speech.
First, the politics. 527s became famous in 2004, during the first national election subject to McCain-Feingold restrictions on soft money–restrictions from which they were conveniently exempt. In that cycle, 527s spent some $420 million on advertising and get-out-the-vote efforts, most of which supported Democratic candidates and causes. Since then, Republicans have been eager to shut off the flow. Their legislation would require 527s to register as political committees, making them subject to McCain-Feingold rules.
Even if Republicans are right that 527s were a boon to Democrats in 2004, they’re probably wrong to think that the heyday of the 527 is still upon us. The criticism that has been directed at 527s, along with recent Federal Election Commission scrutiny, has already led many liberal groups to shift their efforts toward other nonprofits–mainly 501(c)(4)s–that are immune to the proposed GOP reform. This shift nicely shows why further regulation would be unlikely to work. Politicians have spent decades trying to curtail the role of money in politics, but have done little more than push the money through new loopholes. Why should things be different this time around?
In any case, it’s a mistake to think that Republicans can’t play the 527 game. The GOP was at a soft-money disadvantage in 2004 because the Republican National Committee discouraged donors from giving to 527s while it attempted to get Democratic 527s declared illegal. By the time that effort failed, it was too late to catch up. But there’s no reason in principle why 527s have to be an arrow in the liberal quiver. If they remain an influential means of funding politics, Republicans should simply learn to use them as aggressively as Democrats have done.
It’s not even true that the effectiveness of a 527 is a function of how much money it spends. In the 2004 election, the 527 that unquestionably had the biggest impact was Swift Boat Veterans for Truth. The $22 million it spent on anti-Kerry ads swung momentum toward Bush at a time when he was running behind in the polls, and possibly saved his presidency. George Soros spent a comparable amount–$26 million–on 527s devoted to Bush’s defeat, but got little more for his efforts than a lousy T-shirt (as NR joked on its post-election cover).
“There’s a strong
against restricting 527s.”
This probably isn’t a coincidence. Republicans depend on paid media to get their message out much more than Democrats do. Most of the press, not to mention the entertainment industry, remains overwhelmingly liberal. That means a whole lot of free advertising for Democrats, but it also dulls the effect of liberal 527s, which often do little more than repeat what voters have heard on the CBS Evening News or read in the New York Times. Conservative 527s, on the other hand, say things that the media have overlooked or chosen not to report–and because what they say is new, they get a lot of bang for their buck.
Regardless of these tactical calculations, there’s a strong free-speech argument against restricting 527s. Indeed, the GOP itself used to make that argument: McCain-Feingold’s most onerous constraint–the prohibition on broadcast ads that mention a candidate within 60 days of an election–provoked cries of bloody murder from congressional Republicans convinced it violated the First Amendment. How can the same party now justify dragging a whole new class of organizations under that rule? We may not like it that liberal billionaires spend their money on causes we disagree with, but it is their right to do so–and if they’re going to, directness and transparency are preferable to a labyrinth of non-profit groups and tax loopholes. A handful of Republican congressmen, most notably Mike Pence of Indiana, recognize this, and oppose the House leaders.
That Republicans defeated a longstanding liberal majority in 1994 against the wishes of hostile media is testament to the power of conservative ideas. The GOP should have enough faith in the correctness of those ideas to believe that they can still win elections. There’s nothing conservative about trying to regulate your opponent to defeat.