Alan K. Henderson's Weblog


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Friday, May 06, 2005

Stifling Of Dissent, United States Senate Edition

In the wake of the FEC vs. blogs controversy, a lot of bloggers wrote Senators John McCain and Russ Feingold expressing outrage that the FEC could interpret the law bearing their names to infringe on the free speech rights of bloggers. I wrote Senator McCain, using the form letter on his site.

Well, by golly I got a response. I received a letter from his office yesterday. Here it is in its entirety. There is a serious problem with this letter; pay close attention and see if you can spot it.

Dear Mr. Henderson:

Thank you for contacting me regarding campaign finance reform and "527 groups". I appreciate you taking the time to share your views.

As you know, after seven years of sometimes fierce and vigorous debate on the issue, President Bush signed the Bipartisan Campaign Reform Act of 2002 (BCRA) into law on March 27, 2002. On December 10, 2003, the Supreme Court, in McConnell v. FEC, upheld the constitutionality of key provisions of BCRA dealing with soft money and electioneering communications. This legislation ended the practice of the President, party leaders, and members of Congress soliciting huge donations from corporations, unions, and wealthy individuals. BCRA's overriding goal was to reduce the corrupting influence of unlimited soft money contributions to political parties, usually solicited by federal candidates and office holders. There can be no doubt that this new law has improved the system. Despite the predictions to the contrary, the parties have thrived, raising as much in limited donations from individuals in this cycle as they did in hard and soft money combined in 2000.

While BCRA has proven successful, the recent growth of political committees commonly known as "527" groups, referring to their tax-exempt status under Section 527 of the Internal Revenue Code, having emerged as a new vehicle for raising and spending illegal soft money. 527 groups supporting both presidential candidates illegally raised and spent tens of millions of dollars in soft money on ads and partisan voter mobilization efforts to influence the presidential election. At the core of the financing of these 527 groups was a relatively small number of very wealthy individuals making very wealthy soft money contributions. Four individuals alone gave a combined total of $78 million to these groups! The Federal Election Commission (FEC) has shamefully failed to do it's [sic] job to require these obviously political groups to register as political committees, which would obligate them to comply with the Federal Election Campaign Act of 1974.

Contrary to the opinions of those opposed to campaign finance reform, the 527 issue as nothing to do with BCRA. It has everything to do with the original 1974 campaign finance law and the failure of the FEC to do its job to properly regulate the activities of these groups. The BCRA reforms continue to function, despite the presence of the 527 groups. It is significant that FEC-registered hard money contributions to the 2004 presidential campaign has outnumbered the 527 political groups spending by a factor of seven at the last count.

Because the FEC has failed to properly enforce federal law and require the 527 groups to register as political committees, I have introduced legislation along with Senator Feingold that would require all 527s to register as political committees unless they raise and spend money solely in connection with non-Federal candidate elections. It is unfortunate that the Congress must take legislative action requiring the FEC to properly enforce the law, but we cannot allow the obstinate acts of non-elected commissioners to obstruct the law and to dilute the influence that average Americans have in determining who will lead their country.

Again, thank you for contacting me regarding campaign finance reform. Please feel free to contact me on this or any other matter of concern.


John McCain
United States Senator


This is completely irrelevant to the letter I sent. I demanded that he fight to keep the FEC's hands off bloggers' First Amendment rights. I wrote nothing about 527 groups. Sadly, I didn't think to copy and save the original letter. Hey, I didn't get replies from Eddie Bernice Johnson, my own Congressional representative at one time, in response to a couple of letters I sent her. I didn't expect one from an Arizona Senator.

One can easily get the impression that the letter wasn't read at all, that McCain's staffers simply plucked the addresses from all recent emails with the "campaign finance" tag selected, and cranked out a letter on McCain's concerns rather than ours.

The letter has its share of fiskable points, including:

  • Claiming that 527s violate the 1974 FECA without citing at least a smidgen of chapter and verse (would love to see an analysis by a learned scholar).
  • The impropriety of quoting the sum of 527 donations from four individuals without quoting the sum garnered by all others.
  • The assumption that the FEC should place the same regulations on ALL 527s. A George Soros punditfest is not the same thing as a bunch of veterans getting on TV to tell people that they're being lied about by a presidential candidate. If the idea is to target the megarich few, then why target the vast majority of 527 donors?
  • The statistic that hard money outnumbers 527 money by 7 to 1 doesn't exactly make the 527 menace look all that alarming.

One more thing: a tax code with at least 527 sections needs to be carpet-bombed.

Update: I recall that in my original letter to Senator McCain I stated that BCRA should be amended to guard against the sort of FEC "mission creep" described in Declan McCullagh's The Coming Crackdown on Blogging. Interpret that not as an endorsement of BCRA but as a temporary measure. The long-term solution calls for replacing BCRA and FECA with election laws that, among other things, respect the difference between campaign finance and the free press.

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