Skirting ban on soft money

March 12, 2004|By Jules Witcover

WASHINGTON - Reforming use of money in political campaigns is like trying to reform drug abuse in professional sports. In both, it seems that whenever a remedy is found, a new way to counter it is found.

In monitoring today's pro athletes, no sooner is a performance-enhancing drug detected and outlawed than another one likely will come into play. In monitoring the flow of campaign money, every new effort to put a lid on it is overcome by another way to keep the dollar spigot turned on.

The passage of the McCain-Feingold legislation - cutting off unregulated, or "soft," money to federal candidates and parties - has been met this year with a proliferation of independent groups rushing to fill the void in the 2004 presidential election.

Many of these groups are operating under a tax code provision by which they can claim tax-exempt status and, they argue, escape federal regulation of their political activities. These "527" groups, named after the applicable section in the tax code, have been embraced largely so far by Democratic supporters seeking a way to counter with soft money the mammoth regulated, or "hard," money fund-raising machine for President Bush's re-election.

The Bush campaign has already garnered more than $100 million, with a goal of nearly double that amount, to run against Sen. John Kerry, whose campaign treasury has been depleted by his costly campaign to become the Democratic standard-bearer.

Defenders of McCain-Feingold are pressing the notoriously ineffective watchdog agency, the Federal Election Commission, to regulate these 527 groups as bona fide campaign vehicles. At the same time, defenders of the soft money ban have initiated legal action against the FEC, charging the agency with subverting McCain-Feingold and other campaign finance regulations.

Although the current growth of 527 committees has been predominantly of Democratic origin, there's little doubt that similar Republican groups will follow suit if the FEC declines to regulate them. The GOP would rather not have them, but won't leave them to the Democrats.

Until a recent Supreme Court decision, the FEC had held that as long as television political advertising aired by such independent groups did not engage in express advocacy - that is, specifically ask voters to elect or defeat a candidate, known as "magic words" in the political fraternity - they could be paid for with unregulated funds.

But because the court said the law was not intended to mean such a narrow definition of advocacy, the FEC is now considering whether to rewrite its rule and cover all political groups working for or against a presidential candidate or await instructions from Congress.

To steer clear of regulation, the 527s also must adhere to the same condition that governs "independent expenditure" committees under the original post-Watergate campaign finance reforms. That is, they must not coordinate their activities with the candidate of their choice, his campaign or the national party.

All of these new Democratic soft money committees are defended on grounds they will help create a more level playing field for Mr. Bush and Mr. Kerry by combating the Republicans' proven ability to raise much more hard money. Instead, they appear likely to open the dollar floodgates even more, unless they are subject to the soft money ban.

There is another ramification that bodes ill for the whole campaign process. The more money funneled into it through independent groups, the less control the candidates and their campaigns will have over what is said and done in their names, and the harder for voters to pin responsibility. The infamous Willie Horton ad in the 1988 campaign attacking Democratic nominee Michael S. Dukakis' prison furlough policy, run by an independent group, was disowned by the senior George Bush. But it had its impact nonetheless.

The FEC, regarded by critics as toothless or even hostile to campaign reform, must decide now whether to bring the 527s under the soft money ban. If it doesn't, diminishing the poisoning influence of money on presidential elections is likely to remain as challenging as keeping performance-enhancing drugs out of the world of sports.

Jules Witcover writes from The Sun's Washington bureau. His column appears Mondays, Wednesdays and Fridays.

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