THE FEDERAL Election Commission is scheduled to take up the question today of what rules should apply to outside groups that spend huge "soft money" checks to influence federal elections. The agency's general counsel, citing the complexity of the issue, has recommended that the commission take another 90 days, a delay that would mean that any new rules would come too late to affect the 2004 election.
There is reason to proceed cautiously in this sensitive and legally complicated area. As we've said previously, in outlawing soft money for political parties and putting limits on outside group broadcasts that mention candidates near Election Day, Congress appeared to assume that other soft-money spending by outside groups, which some would have the FEC ban, was permissible. The influence of soft money -- clearly corrupting for the political parties with the squalid involvement of elected officials in extracting huge checks from those they oversee -- is less evident, at least on the record so far, when it comes to outside groups. Moreover, any regulation in this area must be carefully crafted to avoid infringing on the free-speech rights of groups that legitimately seek to have their voices heard on issues. Cracking down on the groups, known as 527s for the section of the tax code under which they're organized, could have the unintended consequence of driving this activity further underground. Some groups could shift their status to other sections of the tax code that do not require them to disclose their donors or spending, unlike 527s.
But there is an area in which the commission ought to make an immediate fix. It involves the rules that govern the mix of "hard" and "soft" money that outside groups must follow when they engage in activities such as voter registration and mobilization that can affect both state and federal elections. Those rules already require groups to register with the FEC. The existing formula is so risibly elastic that a major Democratic 527, America Coming Together (ACT), is funding its activities with 98 percent soft money (unlimited contributions from any source) and just 2 percent hard (contributions limited to $5,000, and not from corporations or labor unions).
That's nothing short of ridiculous, coming as it does from a group that makes no bones about its desire to give President Bush a one-way ticket back to Crawford, Tex., as its mailings say. Commissioners Michael Toner, a Republican, and Scott Thomas, a Democrat, have proposed a minimum 50-50 hard money-soft money split for such groups. Whatever the correct proportion, the rules ought to be toughened to require a mix of spending that more accurately reflects what such groups are really up to.
Finally, the FEC already has tools to go after 527 groups that cross the line into federal political activity (and therefore aren't permitted to spend soft money). The election law requires groups whose "major purpose" is to influence federal elections to abide by contribution limits. Indeed, some of the reformers now pressing the FEC to adopt new regulations on 527s argue that committees such as ACT are already violating the law under this test.
In addition, the FEC has a regulation that requires groups whose communications "could only be interpreted by a reasonable person as containing advocacy of the election or defeat" of a candidate to abide by contribution limits. In other words, they wouldn't be allowed to use soft money even if their ads steer clear of using "magic words" like "vote for" or "vote against." That part of the regulation has been struck down by several courts, but the Supreme Court's ruling upholding the new campaign finance law suggests a different outcome. What might be needed here is not a new set of rules but an FEC with the will to enforce the ones already on its books.