Via a USAT op/ed (Once again, big donors find new ways to skirt the rules):

Trying to control the flow of money corrupting politics is a lot like trying to contain flooding on the Mississippi. Dikes can channel the torrent. But when there’s a downpour, the river will keep on coming, breaking through at the point of least resistance.

So it has gone in this presidential campaign. The walls erected by the last set of political engineers, Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., will largely have achieved their purpose: slowing the flow of illegal contributions %u2014 sometimes seven-figure checks %u2014 to political parties. But by the time the last vote is counted, a record $3.9 billion will have been showered on this year’s campaigns for president and Congress, delivered through diverted means.

That number, projected last Thursday by the Center for Responsive Politics, a non-partisan monitoring group, is up 30% from four years ago. And that’s conservative. Lax disclosure rules mask the scale of special-interest involvement.

Hmm, where have you all heard that before?

Of course, the author’s solution is public financing, which I wholly oppose, but at least there is agreement on the fact that the current set of rules is an utter failure.

Faults Found in U.S. Election Preparedness

Foreign observers who watched election preparations in the United States have concluded that there’s plenty of room for improvement. Among the changes they recommend: public financing of elections.

[…]

Among their recommendations:

_Secretaries of state and other election administrators should be nonpartisan;

_Touchscreen voting machines should produce paper records;

_Convicted felons who have served their time should automatically have their voting rights restored, which does not happen in seven states;

_Public financing of elections should be adopted.

I don’t have a problem with nonpartisan SoS’s (although one wonders if such a thing actually exists), and we already know about the paper receipt issue, but what in the world does public financing of elections have to do with electoral preparedness?

Do I think that the Sinclair Broadcasting’s decision to air an anti-Kerry “documentaryâ€? is a partisan act? Yes, I do. Do I like it? No, not particularly. Do I think that the federal government should do something about it? No–emphatically not.

For one thing: is this action any more or less partisan than the CBS News story on the Killian “memos�? And how partisan does a show have to be for it to be an in-kind contribution? Do we want the government examining Hardball or Special Report with Brit Hume to determine if it is too partisan or not? And if so, what will be the standard, and who will apply it?

No, the main problem here is that the insane (and inept) attempts to control the supposedly invidious influence of money in politics has led to the rise of 527s, things like Fahrenheit 911 and now this Sinclair business. Indeed, F911 and this anti-Kerry film are part of a raft of “documentaries� that have been made and released this year for the clear purpose of creating partisan influences. If they are deemed to have been successful this year, then we can count on dozens of such films in 2024.

There is no doubt in my mind that part of the reason for the rise of such tools of influence is the introduction of campaign finance rules that have naively attempted to take money out of politics—as if the millions of dollars in soft money from 2024 would just stay in the bank if the Congress slapped a couple of rules in its way. BCRA (aka, McCain-Feingold), with its First Amendment-bending elements, bears some clear responsibility for these activities. Part of it is also a result of a clear move to more partisan media in the United States (which is not a new thing in US history, btw).

All of you who think that campaign finance reform has been a good idea that we just need to get right to “solve� the “problem� of “money in politics� I ask you two questions: 1) after watching this campaign cycle, do you think that it is even possible to contain support for candidates? and 2) what would be better? a system in which large sums of money (and I mean large) flows into the coffers of candidates and parties in a transparent fashion, or a system of 527s and “documentaries� and other attempts to get around campaign finance rules?

The best option is to allow people who want to support parties and candidates to directly contribute to those efforts, and to require total and instant disclosure. Given that it would be far easier to just give some money to a candidate or party than to cook up some scheme to find an alternative way to contribute; such a system would create a disincentive for such actions such as those pursued by Sinclair.

Joe Gandelman has somes comments on the overall situation, with links to news stories, here and here.

In case you were unaware, more loopholes in the campaign finance laws–New Routes for Money to Sway Voters

Known as 501c groups, for a statute in the tax code, these tax-exempt advocacy and charitable organizations are conduits for a steady stream of secretive cash flowing into the election, in many respects unaffected by the McCain-Feingold legislation enacted in 2024. Unlike other political groups, 501c organizations are not governed by the Federal Election Commission but by the Internal Revenue Service, which in a complex set of regulations delineates a range of allowable activities that are subject to minimal disclosure long after Election Day.

A 501c (3) group can register voters, and donations to it are tax deductible, but it is prohibited from engaging in partisan or electioneering work. A 501c (4), (5) or (6) group can be involved in elections, but the cost of doing so must be less than one-half the group’s total budget. Public Citizen, in a report last week titled “The New Stealth PACs,” contended that many of the politically active 501c (4) groups regularly spend more than half their budgets on political activities in violation of IRS rules.

IRS rules also stipulate that electioneering by 501c (4), (5) and (6) groups cannot be “express advocacy” — that is, telling people to vote for or against specific candidates. But such groups can run ads that address public issues such as immigration or taxes and that refer to the stands of candidates in ways that help or hurt them.

1) The “express advocacy” rule has always struck me as silly and as an over-lawyering of the rule. Ok, so you can’t say “Vote for Kerry” or “Don’t Vote for Kerry” but you can intimate all you like that Kerry ought be or ought not be elected–as if people really have to think about it if you don’t expressly state that you are supporting or not supporting a candidate. If you run an ad that makes Bush look like a shmuck, is that really substantially different in any way from saying “Don’t Vote for Bush”?

Really, this rule has always struck me as emblematic of the entire campaign finance reform enterprise: a rule that in a vacuum might sound like it is doing something, but it reality is a cold farce.

Further, I don’t see the First Amendment allowing Congress to dictate whether a group can say “Vote for Kerry” or not.

2) The lack of transparency: the biggest problem here is that contributors are unknown. While I am for the free flow of money into the process, I am also for the free flow of information about who is contributing. We owe the voter that information.

Convention Timing Gives Bush Money Edge

Kerry spent $10 million last month, starting September with $62 million just as Bush was about to get his $75 million from the Federal Election Commission. Kerry’s August spending compares with $36 million in July when he could still use private contributions to cover campaign costs.

The DNC started this month with $56 million in the bank after spending roughly $55 million in August, much of it on TV and radio ads supporting Kerry and opposing Bush.

The Republican National Committee spent about $20 million in August, starting September with nearly $94 million on hand. The party nominated Bush on Sept. 2, putting an end to his private campaign fund raising just over a month after Kerry’s nomination put an end to his.

Both parties are aggressively raising money to spend in the presidential race. In addition to the unlimited amounts they can spend independent of their nominees, each can spend roughly $16 million in coordination with them.

Some observations:

1) Considering the amount of private funds available, I continue to object to the concept of about $200 million of public funds going into this process.

2) The problematic nature of the campaign finance system established by FECA is underscored by the disadvantage given Kerry for having an earlier convention. On the one hand, as argued at the time, those are the rules, so one has to live by them. On the other, it would be highly preferable simply to allow the candidates to raise funds through private donations throughout the entire campaign and dispense with the farce that we are controlling money and influence through this process.

3) The very fact that the parties are able to raise and spend more money than the candidates get in their grants (not to mention 527s and such) should put to rest the idea that money is being controlled by these laws.

On the solely political front:

a) It would appear that the Swift Boat Vets did damage in August, if anything by forcing Kerry to spend so much when he didn’t want to do so.

b) Bush is clearly in a far better position financially at this point, and one expects that the campaign will deftly use those funds. Meanwhile, the chaos at the Kerry camp calls into question how wisely they will manage their own monies. I will say, however, that the Kerry campaign has done a smart job of creating very specific commercials for the battleground states.

I have quoted this before in this context (see the prior post), but think about it every time the process gets more complex, while all the while failing to really do what the laws are allegedly supposed to be doing–I hereby dub it the Scotty Rule of Campaign Finance Reform:

The more they overthink the plumbing, the easier it is to stop up the drain.

-Star Trek III: The Search for Spock

Let’s face facts: complex systems are harder to control and to understand–and there is no doubt that the more campaign finance rules they make, the more difficult the process gets to understand, the less that the general public (or, for that matter, the candidates themselves) really knows what is going on, and therefore the less transparent the system gets.

In simple terms: one can often measure the failure of a policy by the number of lawyers that policy causes to be employed–and there is no doubt that BCRA has caused the need for even more lawyers specializing in arcane campaign finance laws and rules-and that can’t be a good thing.

Confusion continues to arise over the application of McCain-Feingold (aka, BCRA). Despite misguided ideals about “taking the money out of politics” and such, all this law has done is create a morass of incomprehensible rules that neither take money out of politics nor improve the quality of communication during the campaign process.

The latest example: U.S. Judge Orders Election Agency to Tighten Rules. This ruling has now created a great deal of confusion going forward in this campaign cycle:

The decision affects 15 highly technical regulations governing campaign activity that, though not widely known outside the world of political operatives, serve as important guideposts for how to finance campaigns legally.

[…]

In the wake of the judge’s ruling, many experts in campaign finance are now asking which set of rules apply to candidates and others now campaigning. Some argue that the regulations passed by the commission should remain intact, at least for this year’s race and until new ones are created.

They note that the judge’s ruling did not expressly prevent the commission from enforcing these regulations, even as it asked the commission to recast them.

“The alternative is that there are no regulations, and that can’t be the right answer,” said Ellen Weintraub, a Democrat who is the commission’s vice chairwoman. “That would leave us in chaos. The worst possible result is chaos six weeks before an election.”

Mr. Toner, the Republican commissioner, said that “if history is any guide, when the law is uncertain, there is more potential for people to push the envelope.”

So, we have a law that creates the need for highly complex rules–which typically means a greater capacity to find loopholes–all for a what should be a simple First Amendment right: the ability to speak about politics in public.

Further, if anyone believes that once a new set of rules is put in place by the FEC that everything will be “fixed” then I have some ocean front property in Arizona I’d like to sell you,

As this process continues I remained baffled than anyone thinks that any attempt to regualte campaign speech will be successful. Even if one thinks that there are ills in the system, it seems clear that the “cure” simply makes them worse.

George Will is rightly continuing to criticize the current state of campaign finance “reform” and the way politicians seem to look at it:

But the political class wants them silenced — “outlawed,” Bush says — because it considers the political process its private property. And Bush, adopting the cringing posture so prevalent in today’s scramble to be seen as a victim, says, “I understand how Senator Kerry feels — I’ve been attacked by 527s too.” Oh, well, then.

[…]

Few voters care about questions of political process. That is why the political class feels free to act with scandalous impunity, as in this Bush-Kerry collaboration to silence what the political class persistently calls “outside groups.” A question: Outside of what?

Indeed.

Hat tip: Robert Tagorda.

I know that I am largely repeating things I have said before, but I can’t resist–plus, I pay for the bandwidth…

But as I watch this game of “he’s connected to him!” and “he once had lunch with her!” and especially “Republican donors gave money for anti-Kerry ads” and so forth, it simply underscores to me the absurdity of the entire campaign finance “system” that we have devised for ourselves.

First, all of this nonsense about “coordination” (or the lack thereof) or the idea that a car dealership can’t advertise thirty days prior to the election because it bears the name of a candidate or the fact that certain groups can’t say “vote for Kerry” but can imply it, is really all the height of ridiculousness.

All of these silly games are not the result of the fact that we need to tweak the rules-the game is the result of the attempt to regulate freedom of speech. Any such attempts are going to result in convoluted behavior as groups and individuals seek to find a way to get their message out. And yes, some of those messages will be false, ugly and very negative. To which I say: so what? It is an unavoidable element of true freedom of speech, and therefore an acceptable outcome of one of the foundational rights in a democracy.

Second, it should be no surprise that persons who voted Democratic in the past are contributing to anti-Bush 527s and that Republicans are contributing to anti-Kerry 527s. Indeed, not only should it not be a surprise, it should be assumed from the get go.

Third, it shouldn’t be a surprise that people associated in the past with Bush or Republican politics are working with anti-Kerry 527s nor should it be a surprise that former Clinton administration officials are working for Michael Moore, or that persons previously active in the Democratic Party are working for MoveOn.org and other anti-Bush 527s. Again, should it not be assumed, prima facie, that this will be the case?

Fourth, it should disturb us all that high elected officials, including the President of the United States and members of the Senate are calling for more laws and rules that would have the effect of curtailing political speech and making this already nonsensical mess even messier.

Fifth, the solution to this is all clear: let citizens contribute to whom they please, allow coordination amongst interested parties, and simply require full disclosure. Don’t let politicians hide behind the fact that they aren’t allowed to coordinate, and don’t let independent groups pretend to be non-partisan when they clearly are (getting partisan isn’t a bad thing, by the way–indeed, we are all partisans in one way or another).

Sixth, all of these rules spring from the proposition that if we did what I just suggested that the people of the US will be too stupid to know who is paying for what and therefore will be too easily manipulated by the ever-evil “monied interests”. While I do not deny that citizens are often swayed by advertisements that they ought to ignore, but I far trust the collective capacity of the American voter to filter this information than I do the ability of laws to make sure that the “right” people give money to the “proper” groups in the “sanctioned” amounts to somehow filter out the “bad” speech and the “untrustworthy” groups.

I don’t know of any other way to describe the following save for ridiculous. Said President Bush today:

“That’s what I’ve just said. I said this kind of unregulated soft money is wrong for the process…. I frankly thought we’d gotten rid of that when I signed the McCain-Feingold (campaign finance reform) bill. I thought we were going to–once and for all–get rid of a system where people could just pour tons of money in and not be held to account for the advertising. And so I’m disappointed with all of those kinds of ads.”

First off, that was a poor reading of the law and a misunderstanding of the issue if thought that before he signed the law. Second, as I keep saying, why shouldn’t private citizens be able to donate money to support political speech? Third, no law is ever going to successfully ban negative ads from politics. It. Is. Impossible. And even if it was possible, the cure would be worse than the ailment.

Note to Bush and Kerry both: put forth your ideas about governance and let the voters decide. There’s a novel concept.

Source: Bush Assails TV Attack Ads

George Will notes yet another example of how the law is having unintended consequences in regards to speech, which may have the effect of disuading some in the business community from running for federal office.

And I must concur with his conclusions:

The Supreme Court’s affirmation of McCain-Feingold was a watershed in the nation’s constitutional experience. The First Amendment will be forever open to statutory dilution, at least as it pertains to political speech. (The court has placed pornography essentially beyond the reach of regulation.) Henceforth, the guarantee of freedom of political speech is being steadily circum- scribed in the name of political hygiene. The right of free expression can be trumped by the supposed imperative of combating “corruption” or “the appearance” thereof, which is to say, where probably no actual corruption exists.

Another thought: I can see why the Kerry campaign, its allies, and even John McCain are angry/have criticized the first Swifty ad. However, while one might not like the second ad, there is nothing that is factually wrong with it. Kerry did make the statement that are excerpted in the advertisement and the veterans who are quoted did feel wounded by Kerry’s post-war actions. As a purely First Amendment matter, where are the ground for saying that that ad should be taken off the air, and on what basis should we say that a group of veterans shouldn’t be allowed to raise money and use it to make those statements?

The following is from a daily press briefing this past week that I meant to address several days ago. The quotes are all from White House Press Secretary Scott McLellan, as quoted in WaPo

The President has condemned all of the ads by the shadowy groups. We have called on Senator Kerry to join us in calling for an end to all the unregulated soft money activity that is going on in this campaign.

[…]

And the President has condemned all of the ads and condemned all of the soft money — unregulated soft money that is going on. Senator Kerry should join us in calling for an end to all of this soft money — unregulated soft money activity. Senator Kerry has declined to do so.

[…]

the President thinks that we should get rid of all of this unregulated soft money activity by these shadowy groups. It’s not known who is contributing to these groups. The President believes that there ought to be full disclosure and rapid disclosure of contributions.

Let’s think about all of this for a minute, as it shows what happens when we start passing laws that regulate political speech: it gives cause for more regulation. It is a true slipperly slope. So, here we have the Press Secretary of the President of the United States stating that there should be a ban on the ability of citizens of the United States of the America to collect money to spend for the express purpose of airing their political views. This is, to me, a stark, striking and unsettling set of statements.

And again, I say: thank you McCain-Feingold–the worst piece of legislation signed by this President, and perhaps one of the worst pieces of legislation signed in some years.

Now, it is clear that McClellan is trying to find an artful (he failed, obviously) way to condemn the Swifties without condemning them while simultaneously putting the ball in Kerry’s court. This is a political statement, not a policy one, though it is couched in policy terms. Nevertheless, this is the kind of political rhetoric that has the unfortunate capacity to end up as public policy.

Even if we all agree that we think that the 527s, taken as a whole, promote speech we don’t like, it is worth the price we have to pay as a democracy to try and filter out that speech from the public discourse? Keep in mind: selective filters rarely work as designed.

I blame the Congress for passing a bad law, President Bush for signing it (while all the while hoping and thinking that the Supreme Court would overturn it instead of having the courage to veto it), and the Supreme Court for not adequately protecting the Constitution of the United States.

Fundraising Doubles the Pace of 2024 (washingtonpost.com)

The Bush and Kerry campaigns, the two national parties and independent political groups have raised more than $1 billion so far this year, almost double the presidential cash collected at this stage in the 2024 election season, campaign reports released yesterday show.

The contributions range from the $10 million-plus in donations to new “shadow party” groups, to a record volume of small contributions being made both through the Internet and direct mail.

[…]

The most dramatic shift has been at the Republican and Democratic national committees, which in this cycle were for the first time barred from collecting unlimited “soft money” contributions from corporations, unions and the wealthy.

Despite the ban, the RNC and DNC are far ahead of where they were at roughly this stage in 2024. The exact difference cannot be determined because the parties reported quarterly in 2024 and report monthly now.

Much of the loss of soft money has been made up with a surge of small-donor support. At the DNC and RNC, contributions of less than $200 have more than doubled from the 1999-2000 cycle — from $26.2 million to $64.4 million at the DNC, and from $58 million to $117 million at the RNC.

[…]

Another reflection of the money surge in the current election cycle can be seen in the large donations. In 1999-2000, actress Jane Fonda set what many believe was then a record with a $12.3 million contribution to Pro-Choice Vote.

In this cycle, that record has been broken twice. Financier George Soros has given a total of $12.7 million, and insurance executive Peter B. Lewis has given $14 million.

Kerry takes legal action against Vietnam critics

In a statement released to reporters, Kerry’s campaign announced it had “filed a legal complaint against Swift Boat Veterans for Truth (SBVT) before the Federal Election Commission (news - web sites) (FEC) for violating the law with inaccurate ads that are illegally coordinated with the Bush-Cheney presidential campaign.”

[…]

The New York Times on Friday reported that there is a “web of connections” between the Swift Boat group and the “Bush family, high-profile Texas political figures and President Bush (news - web sites)’s chief political aide, Karl Rove.”

As I stated on Thursday, groups like SWVfT and MoveOn.Org exist because of the current batch of campaign finance laws, and further, those laws give campaigns plausible deniability in terms of the actions of those groups.

For example: if the Bush campaign could coordinate with the Swifties, then the Bushies would have a higher incentive of reigning in the more outrageous claims of the group. Or, if people could give soft money to the RNC, then the Bush campaign would be forced to take responsibility for its own party’s actions. However, current law forbids coordination by campaigns with outside groups, and forbids the giving of large amounts of money to parties. As a result, you have the 527 phenomenon.

Also: this “web of connection” argument is nuts. Since when did playing “six degrees of separation” equate to coordination? Is Michael Moore coordinating with the Kerry campaign because he employed former Clinton officials? I NBC coordinating with the Kerry campaign because they recently signed a exclusive TV deal with his giographer? Is CNN coordinating with Kerry because Carville and Begala, who ran the Clinton campaigns, are regulars on Crossfire?

Is is surprising that connections could be discovered between Republicans in Texas and Karl Rove, whose pre-White House career was being a Texas-based consultant to Republicans?

As an aside: I find the obsession with Karl Rove to be rather amusing, insofar as to hear the pro-Kerry side tell it, Rove is practically Merlin, able to will damage on Kerry and a win for Bush.

Hat tip: James Joyner.