On Thursday the FEC took a cautious approach to both its own precedent and judicial precedent, and turned down an Advisory Opinion Request by Majority PAC and House Majority PAC (AOR 2011-12) to have federal officeholders solicit unlimited funds for these independent expenditure PACs, sometimes called, most unhelpfully, “SuperPACs.” It’s a short term win for the so-called reform community, but a longer term measure of the progress made for free speech in the last 6 years, and a likely indictaor of future progress to come.
In a nutshell, the legal question was this: the Bipartisan Campaign Reform Act, or McCain-Feingold, which took effect after the 2002 elections, prohibited national party officers and federal officeholders from soliciting political contributions that are not subject to the reporting requirements and contribution limitations and prohibitions of the Act. Since that time, the Courts have ruled in SpeechNow.org v. FEC and other cases that Congress may not restrict contributions to groups that do only independent expenditures, although it may require such groups to report their expenditures and, if their major purpose is to influence elections, their donors. Attorney Jim Bopp, for the requestors, argued that since the courts had struck down limits on contributions to independent expenditure groups, and such groups were subject to reporting requirements, any funds solicited for them, of whatever amount, were ipso facto subject to the limitations and prohibitions of the law. In short, he read the limitation on the amount that officeholders could solicit as necessarily falling with the court decisions striking limits on contributions to indepednent expenditure groups.
The FEC, however, read the limit on officeholder solicitations as essentially a freestanding provision, as if that portion of the law had been written with specific amounts, rather than a general reference to the section of the law that limited contributions to PACs. Thus, even though contributions to independent expenditure PACs are now unlimited, the FEC argued that the limits on the amounts that federal officeholders and party officers could solicit for them still stood.
The “reform” community, which predictably urged the most restrictive possible reading of the law, is patting itself on the back for the FEC’s “correct” decision. And frankly, we won’t begrudge the “reform” community some silver lining, after they took it on the chin again this week in the Supreme Court, in Arizona Free Enterprise Club v. Bennett.
But the FEC’s unanimous decision looks like another Pyhrric victory for the “reformers.” As Bopp, Director of the James Madison Center for Free Speech, said after the vote, “Just a few weeks ago, the “reformers” were screaming that such solicitations were illegal and you go to jail. The first draft of the FEC advisory opinion also said it was illegal. Now they have approved the solicitation as long as there is a disclaimer at the bottom saying that the candidate is only asking for contributions up to 5K. It does not limit what a donor can give a Super PAC and I guarantee you that the donor will know that he can give all he wants as a result of the candidate’s solicitation.”
Further, the decision will put added pressure on Congress to lift the legislative restrictions they have placed on themselves. As it stands now, independent groups can raise unlimited contributions and make unlimited expenditures. Political parties and federal officeholders, however, labor under contribution limits that are about half what they would be had they even been adjusted for inflation since they were first enacted in 1974. Members of Congress regularly complain that they can no longer “control the campaign.” We don’t think that is a bad thing (we don’t see campaigns and political debate as something that officeholders should control), but there is certainly no reason for political parties and their officeholders to continue laboring under an artificial handicap.
With that thought in mind, it is worth remembering that just a decade ago, there was no limit on what federal officeholders and party officials could solicit. We doubt that even the “reformers” seriously think that the limitations on their solicitations have reduced corruption or improved government. Rather, their opposition to any liberalization of political speech rules reflects an increasingly rigid, archaic ideological construct that simply favors regulation for its own sake.
As Pyrrhus is quoted as saying after his disastrous “victory” at Asculum, “another such victory will undo me.”