On August 29 the FEC announced the imposition of a $775,000 fine on Americans Coming Together, the liberal group that worked so hard to promote John Kerry in 2004. We are not going to argue here over whether the FEC’s decision was right or wrong, but we just want to note the utterly predictable, and utterly disconnected from reality response of the so-called "reform community," epitomized in this passage from a joint press release by Democracy 21 and the Campaign Legal Center:
Both the long delay in resolving the ACT case and the relatively small fine imposed on ACT for almost $100 million in illegal expenditures make a powerful case for why case-by-case enforcement by itself will not work and why without proper regulations and prohibitive fines the illegal activities of 527 groups in federal elections will continue to undermine the nation’s campaign finance laws.
Not meaning to rain on the D21 and CLC’s parade – you would think they would be happy, being as how they filed the complaint – but how does the long delay make any case for why case-by-case enforcment will not work? Let’s see… if we only had an administrative rule, then when a group such as Democracy 21 filed a complaint, why, … why… what? The accused would be immediately taken out and shot? No. Rather, the accused would be given a chance to respond to the allegations in the complaint, and the FEC would open an investigation, and this would involve a good deal of discovery and legal analysis and eventually, after about 3 years, the FEC would render its decision. Just like now. In fact, we have a rule, its called the statute. Just passing an administrative rule doesn’t make investigations or settlement discussions or law suits go any faster. Nor can we really complain about the FEC’s slowness, as if any other agency, or the legal beagles at CLC, could get the job done more timely. After all, the Justice Department didn’t get an indictment in against Geoffrey Feiger for campaign violations from 2004 until last week. Oh these pesky Constitutional due process concerns…
Then there is the question of "prohibitive fines." What does that mean? Let’s see, ACT spent over $100 million. How much should we fine them? $50 million? Who would pay it? ACT doesn’t have those kinds of funds anymore – they’ve all been spent. Would that be enough, anyway, for folks truly determined to participate in politics. Maybe we need a $100 million fine. Maybe we need to evict the alleged beneficiary of these expenditures, John Kerry, out of the White House… oops, don’t think that will work. Maybe we could agree instead that George Bush gets one extra year in office, to make up for ACT’s evil doings. What do you think?
Why does this matter? It’s because the "reform community" is always out there trying to convince reporters and the public that if we only had "tough enforcement," the law after 33 years of failure, would finally work. They want more criminal penalties, and "prohibitive" fines. But enforcement isn’t the problem, it’s that the law is basically, well, not to put too fine a point it, stupid. And it’s not that penalties are too low, it’s that we want to encourage and protect free political speech. The ACT folks were acting in accordance with what was at least arguably (we think actually, but we said we wouldn’t argue that) pretty well established law, advised by very good campaign finance lawyers. There’s no evidence that they set out to break the law – indeed, the evidence suggests that they set out to comply with the law – which is true in most violations of the Act. Sure, we could make fines prohibitive – and dry up all voluntary political activity and contributions in this country. Here’s my suggestion for the serious "reformer" – let’s make all violations subject to the death penalty. That will finally get things under control. Just don’t ask me to do anything for a campaign. Heck, I’d be scared to watch a presidential debate.
So ACT has been punished. We won’t have them going out again, registering people to vote, offering them rides to the polls, giving them information on candidates, and generally trying to promote political involvement and awareness. Don’t you feel better? No, no you don’t. The reformers are right about that. But is it really for the reasons claimed by the
excuse reform community?