WHEN CONGRESS was crafting the new campaign finance law, drafters knew that enterprising political operatives and election lawyers would look for ways to undermine the law's key objective: closing the "soft money" loophole that allowed political parties to collect huge checks from corporations, labor unions and wealthy individuals. So lawmakers included a number of provisions aimed at preventing end runs around the law. One sought to prohibit outside groups, like the 527 organizations that have attracted so much attention this election cycle, from coordinating their activities with candidates or political parties. Another said that federal officeholders -- who had been key players in the soft-money game, vacuuming up the big checks for their parties -- couldn't simply turn their persuasive powers to helping outside groups; the law bars officeholders, candidates and political parties from soliciting or directing such donations.
Unfortunately, Congress left the implementation of these provisions to the very agency that allowed the soft-money loophole to be carved into the law in the first place: the Federal Election Commission. True to form, the commission managed to write regulations that served more to loosen the new law than to enforce it. Thus, for example, the prohibition on having officeholders "solicit" or "direct" checks to outside groups was defined as applying only if they "ask" for such contributions; winks, nods or other suggestive conduct short of that wouldn't count. Likewise, the ban on coordination with outside groups was deemed to apply only within 120 days of an election -- unless the outside group explicitly called for the candidate's election or defeat or republished the candidate's own material. Even within that 120-day window, Internet communications, according to the FEC, could never be considered coordinated with a campaign.
The regulations were so egregiously porous that two of the main sponsors of the campaign finance law, Reps. Christopher Shays (R-Conn.) and Martin T. Meehan (D-Mass.), challenged them in court. Now a federal judge has thrown out 15 of the 19 challenged regulations, including the parts mentioned above. U.S. District Judge Colleen Kollar-Kotelly said the FEC's coordination rules "would create an immense loophole that would facilitate the circumvention of the Act's contribution limits, thereby creating the potential for gross abuse." Similarly, she said, on the solicitation rules, "To permit . . . individuals and entities to funnel nonfederal money into different organizations by simply not 'asking' the donors to do so, but using more nuanced forms of solicitation, would permit conduct that would render the statute largely meaningless."
The FEC has said it wants to appeal the ruling. A wiser course would be to rewrite the regulations more in line with the intent of the statute. The agency, it's true, is in a tricky position: It's writing rules in an area at the core of First Amendment concerns, involving matters of political speech and association, and as such must take particular care not to chill constitutionally protected speech. But one of the clear lessons of the Supreme Court ruling upholding the McCain-Feingold law was that the Constitution is not a such a straitjacket that the only permissible campaign finance law is a toothless one. It's past time for the FEC to get that message.
