BCRA Half-full

Posted December 12, 2003 at 5:46pm

We admit that as political activists figured out ways to circumvent the Bipartisan Campaign Reform Act over the past several months, we’ve harbored doubts whether the exercise was worthwhile. But on reflection in the wake of the Supreme Court’s decision last week upholding the law, we reaffirm our support for the main purpose of the law — to sever federal officials from the raising of soft money and from the corruption that process has involved.

That said, we are surprised and dismayed that the court upheld restrictions on independently produced “electioneering ads” 30 days before primary elections and 60 days before general elections. This strikes us as an infringement of free speech — especially by small entities that have limited funds to buy ads to put their point across at a time when it might have maximum impact and lack the sophistication to form a “hard money” political action committee to do so.

Our position on soft money has always been this: Since 1907 corporations have been forbidden to make political contributions to candidates for federal office, and since 1947 unions have been prohibited from doing so from their treasuries. The purpose was to avoid corruption and the appearance of corruption. These laws were upheld by the Supreme Court.

Then in 1974, in the aftermath of Watergate, Congress passed a law designed to tighten up on contributions and expenditures. But the Supreme Court’s 1976 ruling allowing unlimited expenditures on advertising that did not “expressly advocate” a candidate’s election or defeat, plus a Federal Election Commission ruling that corporations and unions could make contributions for the purpose of “party building,” opened a loophole in campaign finance law that gradually wiped out any limits on corporate and union giving. By 2000, rich individuals, companies and labor groups gave a half-billion dollars to the parties.

As the Supreme Court’s majority observed last week, lobbyists, CEOs and wealthy individuals have candidly admitted that they gave soft money “for the express purpose of securing influence over federal officials.” The court didn’t say so, but in some cases, these officials raised the money on terms that came close to extortion.

It was to end this corrupting exchange that Congress passed BCRA, barring political parties and committees from collecting soft money. The court has now upheld its right to do so. Our doubts have arisen because, since BCRA’s passage, vast sums of soft money have simply been diverted to so-called 527 committees, which will operate separate from the parties but in ideological sync. And these committees report their receipts and outlays not to the FEC, where they can be easily tracked, but to the Internal Revenue Service, which is slow to make the information available.

We believe that 527s, or any other entity, should be able to advertise and mention candidates by name, on an unrestricted basis, but with full disclosure of their operations. So, we regret that the court has limited their expression just prior to elections. We now urge Congress to require instant reporting by 527s. As the court noted, BCRA is not the final word on campaign finance. Nor should it be.