For years, many of us fought for what's now known as the Bipartisan Campaign Reform Act (BCRA)-- or as most people call it, McCain-Feingold. It wasn't much of a reform, but many of us thought that any kind of reform would be an improvement. And since it had taken more than 20 years since the last time campaign finance had been fixed, it was clear that we needed to reduce the influence of corrupt, and mostly corporate money on our politics, and we needed it in the worse way.
After two years of experience with McCain-Feingold, maybe it's time to ask if we didn't get reform in, well, the worse way.
By becoming far better at getting small donations from amazing numbers of people, we've created a real alternative to big donations. It's not clear if McCain-Feingold was that helpful -- Howard Dean probably did more in his 2004 run -- but at least the new law was compatible with that. But the law came with a hidden price tag: the FEC seems to be concentrating on preventing even local people from having "material coordination". And since I'm hearing that the FEC has fined a Democratic county committee near me, you have to ask: what exactly is McCain Feingold helping?
More after the flip.
So why is it that a law we thought was going help cut corruption become a means of hassling local activists? Or force community groups and small town meet-ups to consult campaign finance lawyers?
I don't have a great answer for that, and I'd love to hear from people who understand the law better than I do (which is not very well at all: I don't play a lawyer even on TV). The cause of almost all of this trouble is this innocuous part of the law:
A communication is "coordinated" with a candidate, party, or their agent, when it is paid for in whole or part by another person and satisfies: (1) at least one "content standard," and (2) at least one "conduct standard." § 109.21(a).
Need help with that? Here's what the Campaign Finance Institute's web site has to make that clear for you...
Coordination Defined
Definition: Defines coordination as a payment made in cooperation with, at the suggestion of, or per an understanding with a candidate, candidate's agent or campaign, or party. [Text of Law]
FEC Coordination Rules
New FEC Regulations/Definition: Directs the FEC to draft new coordination rules to apply to coordinated communications by non-candidates and parties only. It leaves in place the current coordination definition, striking stricter definition of coordination rules for party coordination. [Text of Law]
Coordinated Issue Ads As Contribution
Defines coordinated issue ads as contributions (subject to hard money limits) if the ad's sponsors coordinate with a candidate or party. [Text of Law]
Selection of Coordinated or Independent Expenditures
On a district-by-district basis, parties must opt either to make independent expenditures (which cannot be limited), or coordinated expenditures (which are limited) on behalf of congressional candidates, based on which expenditure type a party makes initially; bars parties from making both in the same district. [Text of Law]
Very little of anything Karl Rove and Ken Mehlman did this year caused the FEC to do much of anything; yet clearly, the FEC is monitoring the activities of local groups, and assessing fines of thousands of dollars on them, mostly for doing the kind of grassroots stuff folks like us are doing. I've heard a couple theories concerning this:
- Since the FEC is stacked with some pretty nasty GOP operatives, the Commission has elected to issue regulations that both strain the limits of the law, and subvert it.
- These problems were in the law from the very beginning, and were put in as a "poison pill" before the act was even passed by Congress.
Proponents of McCain-Feingold were clear that the bill had it's problems, that it was only a first step. Well, they were right about that. We need the law fixed.
Why is the enforcement of the BCRA such a mess, and how do we fix it? What do we want the newly elected Congress to do about campaign finance reform?
Updated: fixed some formatting.