By Ruth Marcus
Wednesday, October 31, 2007

The glossy fliers turned up in mailboxes in Massachusetts's 5th Congressional District the weekend before the election. "No one should be signing blank checks to President Bush!" announced one, urging recipients to "Call Jim Ogonowski and tell him you don't agree with his spending priorities!"

Another showed a young girl blowing on a dandelion. "President Bush feels she doesn't deserve healthcare," it said. "Under the Niki Tsongas Plan, kids get the healthcare they need!"

That might seem like standard campaign fare in the closer-than-expected race to replace retiring Democratic Rep. Martin Meehan. But these mailings had a disturbing twist: They were not sent by the Tsongas campaign, the Democratic Party or even any of the usual Democratic suspects ( Emily's List, the Service Employees International Union) that poured thousands into the Oct. 16 special election, which Tsongas won.

Instead, they were produced by a group with the audaciously ironic name Democracy Still Works. Staffed by Massachusetts Democratic strategists, it was created Sept. 28; it won't have to report the source of its money or how much it spent until January.

Unlike the candidates' own committees (which are limited to $2,300 donations) or regular political committees that register with the Federal Election Commission (limited to $5,000 checks), groups such as Democracy Still Works claim they can accept unlimited donations from any source, including corporations and labor unions.

This is the electoral equivalent of a contract hit, conducted by a mysterious assailant specially created for the mission at hand. That this brazenly campaign-related activity persists in 2007 does not augur well for 2008.

If such conduct sounds depressingly familiar, it is. These "527" political organizations, named for a section of the Internal Revenue Code, emerged during the 2000 presidential primaries, when a new group, Republicans for Clean Air, attacked Arizona Sen. John McCain.

By 2004, 527s had become major players. Democratic operatives, underwritten by labor unions and mega-donors such as billionaire George Soros, created America Coming Together. On the Republican side, Swift Boat Veterans for Truth went after Democratic nominee John F. Kerry's war record, while Progress for America was supposed to counterbalance Democratic 527s.

The Federal Election Commission found that these three groups alone impermissibly put more than $150 million into the presidential election -- that's the general election spending of Bush and Kerry combined, notes Fred Wertheimer, an advocate of campaign finance reform.

The groups' punishment? Fines totaling $1.8 million, two years later. If you were out to win elections, you might think this is a pretty low cost of doing business. The FEC would respond, with some justification, that the legal landscape was so unclear in 2004 that enormous fines would have been unfair; future violators, the argument goes, will be on notice and will be dealt with more harshly.

Donors' willingness to underwrite mega-527s on the scale of the 2004 efforts may well be dampened in 2008. It's less clear that groups such as Democracy Still Works -- Wertheimer calls them "disposable" 527s -- will be deterred unless the FEC makes it clear the consequences of violations will be severe.

The FEC has said that such organizations have to comply with federal election law if their communications are "unmistakable, unambiguous and suggestive of only one meaning" and about which "reasonable minds could not differ as to whether it encourages actions to elect or defeat a candidate when taken as a whole."

So consider the Democracy Still Works mailings. Given that neither candidate was in office and that the election was only days away, what, other than influencing the election, possibly could be the point of saying: "No one should be signing blank checks to President Bush" and "That's exactly what the Ogonowski Economic plan calls for"?

Spokesman Dan Cence, a veteran of Massachusetts Democratic politics, described Democracy Still Works as "a group of concerned citizens in Massachusetts." He said its creation "had nothing to do relative to the race" -- though he acknowledged that the mailings, which cost about $100,000, were "the only outreach we've done to this point."

Rather than intending to affect the campaign, Cence said, "it was really more of an educational-type venture. We're intending to offset what other individuals are putting out there through misinformation." Asked what misinformation the group was offsetting, he said it was "about Jim Ogonowski" and "responding to his campaign."

Cence, whose consulting firm worked for one of Tsongas's primary opponents, wouldn't say where the money came from or whether it was from individuals, unions or corporations. "You can find out when we file," he said.

Democracy still works. Just not necessarily on a schedule that lets voters in democratic elections know who's trying to affect the outcome. Or under rules that were supposed to limit the size and source of checks plowed into political campaigns.

marcusr@washpost.com