- The Washington Times - Thursday, November 13, 2008



The Republican National Committee’s decision today to file suit in U.S. District Court for the District of Columbia, challenging the constitutionality of the Bipartisan Campaign Reform Act, is a clear signal that it is concerned about its ability to raise money under the current system. It is also a clear sign of the waning control both parties will have in the future over state and local politics.

To that end, the GOP filed suit in Louisiana to overturn that state’s coordinated expenditure limits on the national and state party’s spending in coordination with candidates from their party. The RNC is also looking ahead with plans to open bank accounts in New Jersey and Virginia, in order to start raising money for next year’s gubernatorial races there. These two states, RNC chairman Mike Duncan tells The Washington Times editorial page editors, were “precursor*” to the Republican comeback that began in 1993.

The campaign reform act often referred to as the McCain-Feingold bill, named for the two senators most responsible for its passage, John McCain and Russell Feingold, did essentially two things: It prohibited national political-party committees from raising or spending any funds that were not subject to federal contribution limits on federal, state and local races or on issue-based advertising; and it defined radio and television broadcasts that name a federal candidate as “electioneering communications” when aired within 30 days of a primary or caucus and 60 days within a general election. It also prohibited corporate, non-profit and union donations (soft money) for any such ad or for state parties using those types of donations to coordinate communications with the candidates they support.

The law contained a gaping loophole, that unlimited and unregulated contributions fell into.

Private-political-nonprofit groups, dubbed 527s for the U.S. tax code they fall under - think Moveon.org, Swiftboat Veterans for Truth, American Right to Life - began exploiting the loophole almost immediately after McCain-Feingold was passed. These groups are unregulated and can raise unlimited amounts of money from contributors, unlike political action committees and state and national political parties, because presumably they do not advocate for specific candidates. But this line has been totally blurred as the groups began to create advertising that had the effect, if not the outright intent, of influencing voters to support one candidate over another.

Before the 527 loophole was even considered a credible problem, the law was challenged by then Senate Majority Whip (now Minority Leader) Mitch McConnell, the California Democratic Party, National Rifle Association and others as being “theoretically” unconstitutional. Republicans regarded McCain-Feingold as an infringement on the First Amendment right to free speech and immediately challenged the law.

We agreed with them. When the case went to the Supreme Court, the court returned a complicated 272-page ruling upholding McCain-Feingold in a 5-4 decision. The problem is that the court had no evidence that the law “as applied” would infringe upon free speech.

The ruling provided little clarification, as was clear when the FEC filed an injunction against Wisconsin Right to Life from airing an anti-abortion ad within the 30-day primary and 60-day general election window. The Supreme Court denied the injunction and said that the group should receive an exception in the application of the law.

The RNC’s lawsuit asks the court to narrowly construe the soft money ban, as it did in the Wisconsin case, to apply only to activities that directly relate to federal elections and let the parties have soft money for all other purposes.

“We’ve had three cycles of this and we are finding that on an as-applied basis, some aspects of this law may be unconstitutional,” Mr. Duncan said.

As it stands, we reaffirm our McCain-Feingold position that the right to free speech includes an individual’s ability to contribute to a party, political campaign or advocacy group as he or she sees fit. We hope, at the very least, the court would bring clarification rather than more confusion as to how this law should be applied.

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