Making a point in verse can have a lasting effect. Verse can lighten and simplify an intractable topic. Verse can speak to larger themes that are memorable and easy to embrace. Bob Bauer uses verse to have the last word on the FEC’s rulemaking on electioneering communications. There were large issues in the rulemaking, to be sure. The largest was how the Commission should implement the Supreme Court’s test for electioneering communications in WRTL II, which determines when an ad run within the 30- and 60-day windows is genuine issue advocacy rather than electioneering. Much of the controversy in the rulemaking, however, surrounded two other issues: whether genuine issue ads, once determined, must be disclosed; and whether the WRTL II opinion provides the Commission with yet another reason to repeal the alternative definition of “express advocacy” at 11 CFR 100.22(b).
Bauer’s advice seems so sagacious and dispassionate that it is easy to forget that he and his colleagues, Marc Elias and Brian Svoboda, filed comments on behalf of clients on the rulemaking before the FEC. Those clients are two national party committees, the DSCC and DCCC.
It is odd that national party committees would file comments on a rulemaking about electioneering communications. Party committees make “expenditures,” a legal concept mutually exclusive of electioneering communications. Perhaps this is why the DNC, RNC, NRSC, NRCC, and any number of state party committees sat out the rulemaking. To be fair, the rulemaking did involve “express advocacy,” which affects much of what party committees do, but Marc Elias testified, while cautioning inaction, that had anyone thought this rulemaking was actually about express advocacy the Commission would have had a much larger response. Elias also noted, somewhat lamely, but with a smile, that if the Commission wants to cleanse its regulations of troublesome provisions, he wants his list placed at the front of the line. Surely Elias knows that moribund regulations are removed one rulemaking at a time. Also odd is this fact: repealing the part (b) definition of express advocacy would restore a bright line, which would make the job of compliance lawyers like Elias easier, and make the decisions of the national party committees, particularly in the area of coordinated communications, less nettlesome.
For those unaware of the controversy, the part (a) definition of express advocacy, in a nutshell, requires express and understandable terms to trigger the test while the part (b) definition of express advocacy posits that implied advocacy is also express advocacy. That implied advocacy is as good as express advocacy is a position the Fourth Circuit Court of Appeals determined to be so outrageous that the Court ordered the FEC to pay attorneys fees in FEC v. Christian Action Network. The McConnell and WRTL II opinions, it turns out, only make it clearer that the express advocacy test for expenditures is a “magic-words” test, even if the functional-equivalent-of-express-advocacy standard for electioneering communications is not. We suspect that Bauer knows this, yet he counsels that “Restraint is a thing of beauty that must not die,” and that the Commission should not repeal the alternative definition at part (b).
So, why would the DSCC and DCCC want to keep a vague standard that has been invalidated repeatedly and roundly criticized? Well, consider that the express advocacy test for “expenditure” and “political committee” is the line that divides the hard- and soft-money worlds. If that “line” is ascertainable only in the mind of four FEC Commissioners then soft-money organizations face intolerable uncertainty and must choose to play in the hard-money world, or not play at all. Democratic party fundraising is up this cycle, and the DSCC and DCCC may believe they will own the hard-money world in the 2008 cycle. But it is only in the hard-money world that the DSCC and DCCC are prepared to take on all comers.
The DSCC and DCCC also want the Commission to continue to require disclosure of genuine issue ads that happen to fall within the 30- and 60-day windows. The WRTL II opinion sweeps broadly, making suspect any disclosure of genuine issue ads that fall within the electioneering communication windows. But for procedural reasons, the holding does not reach the disclosure provisions of BCRA section 201, as Bauer, Elias, and Svoboda rightly noted in their comments. Unfortunately, Bauer, Elias, and Svoboda also noted this: "[T]he Commission should take special care not to narrow the range of disclosure now required from electioneering communications sponsors. … Party committees like the DSCC and DCCC have a real, direct interest in having access to information of this character, which is essential to their own strategic decision-making.” Comments at 3 (emphasis added).
This position is unfortunate when you consider who the DCCC and DSCC really are. The DCCC is the campaign arm of the governing party in the House of Representatives. The DSCC is comprised of 49 incumbent officeholders, each of whom holds a gavel in the United States Senate. These organizations, therefore, are as close to the federal government as a private organization can get.
We know of no case that shows a legitimate interest in compelled disclosure of genuine issue advocacy, and hope that the DSCC and DCCC’s “real, direct interest” is not the same “interest” a school-board official had in learning the name of school-levy opponent and grassroots leafletter, Margaret McIntyre. When 1950s Alabama asserted an “interest” in the names of those supporting issue advocacy by the NAACP, the Supreme Court responded that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” Elias’s protestations to the contrary, there is nothing anachronistic or inapposite in the teachings of NAACP v. Alabama. Even in a 21st century, and even where disclosure is appropriate, disclosure is the alert system for abusive officeholders. Consider the K Street project, where Tom DeLay used campaign-contribution disclosure to buttress his suggestions to Hill lobbyists that “if you want to play in our revolution, you have to learn to play by our rules.” Compelled disclosure of genuine issue advocacy within the electioneering communications windows would allow the DCCC and DSCC to know who is speaking against their legislative agenda.
Indeed, the “interest” of the DSCC and DCCC is becoming less speculative all the time. Consider this from Friday’s Opinion Journal (emphasis added):
Meanwhile, Democrats under Rep. Rahm Emanuel and [DSCC Chairman] Sen. Schumer have quietly erected their own K Street Project, and employ some of the same strong-arm tactics they once deplored. "I’ve never felt the squeeze that we’re under now to give to Democrats and to hire them," says one telecom industry representative. "They’ve put out the word that if you have an issue on trade, taxes, or regulation, you’d better be a donor and you’d better not be part of any effort to run ads against our freshmen incumbents."
We wonder whether Bob Bauer, Marc Elias, and Brian Svoboda now find themselves in the uneasy position that Republican election-law counsel Ben Ginsberg, Tom Josefiak, and Charlie Spies found themselves in 2004: making colorable claims on behalf of an incumbent class eager to silence its critics by jealously guarding its comparative regulatory advantage.
Perhaps far fewer would have been so thoroughly offended in 2004 if Josefiak had testified with a smile, or Ginsberg had at all fancied himself a writer.
“Yes, in the heart of a Rulemaking,
Subversive designs and consequences bide their time”.
