“PAC tries new tactic to boost Obama run” was the headline out of the Boston Globe on Monday. The tactic may be new, but the vehicle is not. Vote Hope 2008 is an independent, nonconnected (the terms are not redundant) political action committee established to further the candidacy of Barack Obama. The Globe says the “effort employs a tactic that could transform the way campaign-related money is collected and spent in presidential campaigns.” The truth is, Vote Hope doesn’t break ground so much as concedes it to recent FEC enforcement actions and rulemakings.
Vote Hope was created, as all new campaign finance tactics are, not so much by “liberal activists, including Steve Phillips,” as the Globe suggests, but by able campaign finance attorneys, in this case, Joe Birkenstock. Vote Hope can only be the result of Birkenstock’s careful reading of the FEC’s recent actions on political committees.
Unable to stand the white heat of those unhappy with 527 activity during the elections, including calls from the press and reformers, the FEC took it upon itself in 2004 to “do something” about so-called 527 organizations. If Congress wouldn’t give the FEC power to reach 527s, the FEC would stretch such powers as it did have to reach them. The FEC stretched “contribution” by stretching “solicitation,” and stretched “expenditure” by straining “express advocacy.”
Its efforts ended in one result: the FEC took the remarkable step of placing contribution limits on wholly independent entities — those that make no contributions to candidates and do not coordinate their activities with candidates.
We have discussed this here, here, here, here, and here. We have even discussed the policy with the 9th Circuit here. Those not persuaded that the FEC’s actions are truly remarkable need only read Justice Blackmun’s concurrence in Cal-Med, and Justice Kennedy’s dissent in McConnell.
Nonetheless, Birkenstock has no time to take up such matters with the FEC even if he were willing, and if he could find clients willing to help him. The 2008 primary elections are nearly upon us. Birkenstock has, at once, capitulated and taken full advantage of what the FEC has given him. Vote Hope 2008 will be an independent political action committee that holds itself to a constitutionally questionable contribution limit of $5000. It will spend as much as it wishes — something not even the FEC could undo — and will have a 527-arm that spends according to allocation adjustments passed recently in the FEC’s rule redefining political committees.
Vote Hope 2008 seems new, but in the same way that 527s seemed new after BCRA banned the “soft money” of political parties. In other words, Vote Hope 2008 is new only in the sense that it is now necessary.
Many will say Vote Hope 2008 proves the health of the hydraulic theory of campaign finance, that money will always find a way. The truth is that Vote Hope demonstrates its limits. In holding itself to a $5000 contribution limit, Vote Hope 2008 will suffer from a cash shortage relative to its 527-analogs of the 2004 cycle. (The analogy may be imperfect — Vote Hope can employ what is known as "part (a)" express advocacy the 2004 527 organizations could not employ, for example — but it is apt).
We trust by the way, that, having wholly created Vote Hope 2008 and its facsimiles, sure to come, the FEC will not now be heard to complain about their existence.
We won’t hold our collective breath, however, waiting for the same grace and consistency from the “reformers.”