- The Washington Times - Thursday, June 27, 2002

The widening political warfare over the McCain-Feingold campaign-finance law known in some First Amendment circles as the Anti-Free Speech Act has moved to the Federal Election Commission.

In a series of politically split 4-to-2 votes last week, the FEC approved a number of rules to implement the vaguely worded statute. Reformers complain that these rules will open the door to large, unrestricted contributions known as soft money that the law seeks to ban from federal campaigns.

The Gang of Four FEC Chairman David Mason (a former Heritage Foundation executive), Republican commissioners Michael Toner and Bradley Smith and Democrat Karl Sandstrom is trying to narrowly define the law's loose and dangerous provisions that threaten to turn American elections into a regulatory, prosecutorial minefield.

A key FEC exemption that drove reformers up the wall would permit the national party campaign committees and their support groups to set up organizations that would be able to raise large, soft donations until the law takes effect after Nov. 5.

That move was applauded by both parties, which want to set up soft-money conduits to be used for party-building activities to skirt the law's broader restrictions. The Democratic National Committee wants to allow the Association of State Democratic Chairs to receive soft money for such purposes. The Republican National Committee is being urged to use similar conduit groups for large contributions.

Other provisions adopted by the FEC, which has the authority of overseeing the new law and enforcing it, would exempt state and local party committees from having to report soft money they spend on voter identification and registration.

The FEC also exempted all forms of voter communication, fund raising and other forms of campaign operations on the Internet, even though cyberspace is playing an increasingly larger role in federal campaigns.

Last week's FEC actions highlighted the nightmare of draconian government regulations, restrictions, rulemaking and criminal penalties that the McCain-Feingold law has spawned. The FEC spent a week laboriously picking its way through some 300 pages of draft rules and definitions to guide candidates, campaign lawyers, finance directors and ordinary citizens seeking to contribute money to the party of their choice.

The FEC is trying to clearly define and restrict what Congress means when it uses certain undefined words. For example, some language indicates that organizations "established, maintained or controlled by another entity" would come under the law's sphere of investigation and could be subject to prosecution. In this case, the commission ruled that all such activities that took place prior to Nov. 6. would be exempt from the law's provisions.

In other areas, the FEC sought to precisely define words and phrases such as "voter identification," "to solicit" and "voter registration." In some instances, the FEC decided to let vaguely chosen terms remain vague, even though they cry out for a narrower definition. How should the FEC define the law's ban on using soft money for broadcast ads that "promote, support, attack or oppose" candidates for federal office? The commissioners left that one alone.

Critics, including some commissioners, of the law's controversial ban against issue-advocacy ads who think it will be struck down by the courts as unconstitutional made it clear they do not want to do anything to help reformers soften this egregious attack on First Amendment rights to free speech.

Sponsors of McCain-Feingold were outraged by last week's actions, accusing the GOP-dominated FEC of taking "upon itself the task of rewriting" the law. Under the rules, "the new soft-money ban will be fundamentally undermined," Sen. John McCain complained in a lengthy broadside.

The Arizona Republican now is pushing for speedy confirmation of Ellen Weintraub, a liberal Democrat, who is in line to replace Mr. Sandstrom on the FEC. Mrs. Weintraub worked for Senate Majority Leader Tom Daschle's political action committees, and her confirmation would mean a 3-to-3 tie that would end the GOP's majority coalition rule.

Despite all the whining and complaining by Mr. McCain and zealous Common Cause reformers, the bill's core prohibitions on soft money and campaign issue ads "are clearly preserved by the commission's rules," Jan Baran, a Republican campaign-finance attorney, told me.

That's why both parties want further modifications in the FEC's rules, especially DNC Chairman Terry McAuliffe whose party relies much more heavily on soft money than the GOP does. The Democrats may have voted overwhelmingly for McCain-Feingold, but DNC attorney Joseph Sandler has been lobbying the FEC to water down the law's provisions and is representing the California Democratic Party, which is supporting the lawsuit to declare the law unconstitutional.

'I have sworn hostility against every form of tyranny over the mind of man," Thomas Jefferson wrote. He would have hated this latest assault by Congress against our remaining political freedoms.


Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.


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