QUESTION: WHEN is a ban on federal officeholders raising huge soft-money checks not a ban?
Answer: When it's enforced by the Federal Election Commission.
When Congress rewrote the campaign finance law three years ago, it wanted to break the link between elected officials and big checks solicited from corporations, labor unions and wealthy individuals. Lawmakers knew that to make the soft-money ban effective, they had to write the prohibition broadly to include not only soft money solicited in connection with federal elections but donations involving state elections as well.
As the Supreme Court ruled in upholding the constitutionality of the law, "Large soft-money donations at a candidate's or officeholder's behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evidence from the fact of the solicitation itself."
Indeed, it's evident why some members of Congress would care rather deeply about the outcome of the proposal in California, now on the ballot for a special election in November, to change the way the state draws its congressional districts. So what did the FEC's members do when they were asked whether lawmakers could solicit unlimited soft-money contributions to support or oppose the ballot measure?
After an unusual round of lobbying by members of the state's congressional delegation, including House Minority Leader Nancy Pelosi (D), they said yes. This go-ahead came despite a recommendation to the contrary by the FEC's own lawyer, a ruling two years ago that went the other way and the inability of the six commissioners -- three Republicans and three Democrats -- to agree on any legal rationale for their about-face.
This decision sets a dangerous precedent. As FEC Chairman Scott E. Thomas, a Democrat who first voted to support the general counsel's view but went along with his colleagues in the end, explained, "Donors who give huge soft-money donations at the behest of federal officeholders will expect the federal officeholder to be thankful. When you do someone a favor, you expect them to ask a favor down the road." Of course, because lawmakers will now be free to solicit six- and seven-figure checks without having to disclose that they were responsible for the haul, ordinary citizens will have no way of knowing who owes favors to whom. At the very least, the lawmakers who solicit money for the redistricting proposal ought to voluntarily disclose how much they raised and from what interests.
Sadly, last week's ruling undermining the intent of the campaign finance law wasn't an aberration from this commission. Time after time, the FEC has found ways to narrow the application of the law it is charged with enforcing. The terms of four of the six commissioners have expired. This month's ruling underscores the importance of selecting commissioners who are committed to making the campaign finance law effective, not enabling end runs around it.