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Political Committees Vanderbilt Journal of Entertainment & Technology Law Volume 7 Issue 3 Issue 3 - Summer 2005 Article 6 2005 Bring it On: The High-Stakes Battle Over Whether the Courts, Congress or the FEC Should Muzzle Independent "527" Television Advertising Christopher G. Johnson Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Communications Law Commons, Election Law Commons, and the Marketing Law Commons Recommended Citation Christopher G. Johnson, Bring it On: The High-Stakes Battle Over Whether the Courts, Congress or the FEC Should Muzzle Independent "527" Television Advertising, 7 Vanderbilt Journal of Entertainment and Technology Law 485 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol7/iss3/6 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The High- 'akes Battle Over Whether the Courts, Congress or the FEC Should Muzzle Independent "527" Television Advertising [ By Christopher G. lohnson*i ohn Kerry lied to get his Bronze Those who closely followed the 2004 Star. I know, I was there-I saw presidential election are familiar with the what happened."1 firestorm surrounding these controversial tele- "George Bush misled us vision ads. Last year's political advertising 2 into war with Iraq." brouhaha set the stage for the current, no- "John Kerry secretly met holds-barred battle over whether organiza- with enemy leaders in Paris- tions claiming tax exempt status under 26 though we were still at war."3 U.S.C. § 527 ("527's") should be allowed to "We were given these ideas exist in their present incarnation. Behind the that there were weapons of mass de- scenes, heavyweight Washington insiders are struction.... It was just a lie, and it now brawling over whether Congress, the "The 527 debate boils down to two things: money and power. wasn't a proper use of American courts, or the Federal Election Commission troops."4 ("FEC") should require 527s to register as "John Kerry betrayed the "political committees" and abide by soft men and women he served with in money restrictions. 7 The outcome of this high- 5 Vietnam." stakes debate could shift the balance of politi- "George Bush used his fa- cal power and dramatically affect how groups ther to get into the National Guard, and individuals spend a substantial amount was grounded and then went miss- of television advertising money during future "6 ing. election cycles. Room FILM &TV The 527 debate boils down to two things: tees. Section III considers whether courts or law- money and power. To fully understand the makers should require 527's to register as po- motives of the players in the current 527 con- litical committees in light of the plain lan- test, one must recall how the dispute reached guage of campaign finance laws, Supreme its current boiling point. During the 2004 elec- Court cases, and policy considerations. Sec- tion cycle, independent 527's such as Swift Boat tion IV suggests a course of action. Veterans For Truth ("SBVFT"), MoveOn.org, and Media Fund burst onto the scene in the wake of the Bipartisan Campaign Reform Act ("BCRA") I. Unintended Consequences and almost instantly became powerful players Section 527 of the Internal Revenue in the biggest political contest in decades.' Tele- Code, the legal vehicle enabling the creation of vision stations in battleground states found 527's, became law in 1974.17 However, 527 themselves swimming in money as 527's poured groups existed in relative obscurity from the more than a half-billion dollars into the 2004 media spotlight for nearly thirty years.18 At least presidential campaign 9 and spent over $146 mil- two major factors led to last year's 527 adver- lion on advertising. 0 Moreover, according to a tising explosion. First, Congress passed the post-election survey in battleground states, two BCRA in an attempt, inter alia, to take soft of the three most influential 2004 presidential money out of federal campaigns and thereby campaign commercials were produced by enhance the public's confidence in the political 527's.11 process.1 9 Second, the Supreme Court upheld At different points during the 2004 cam- most of the BCRA, noting that Congress' inter- paign, both Republicans and Democrats cried est in preventing corruption-or the appear- foul over the broadcast of specific 527 ads, de- ance of corruption-among elected officials, pending on whose ox was being gored at the justified any free speech limits the BCRA im- time. For example, the Chairmen of both the posed.2 ° Republican National Committee ("RNC") and the Democrat National Committee ("DNC") A. The BCRA Changes the wrote letters to television stations urging them Political Advertising Game 2 to refrain from broadcasting certain 527 ads.' The BCRA, which amended the Federal Furthermore, both the Bush and Kerry Cam- Election Campaign Act of 1974 ("FECA"), was paigns filed complaints with the Federal Elec- the result of a hard-fought seven-year battle tion Commission ("FEC") alleging 527 cam- waged by campaign finance reform advocates paign finance violations.'3 like Senators McCain and Feingold.21 The Act, As the 527 battle rages, pending court in part, prohibits federal candidates and na- cases 14 or proposed legislation 15 could force the tional parties from accepting or spending large, FEC to tighten regulatory clamps on loose, free- unregulated campaign contributions.2 2 Re- wheeling 527's. However, if left unregulated formers hoped the legislation would change and unstopped by the courts, 527 television federal politics in at least three ways: first, by advertising will snowball during future election eliminating soft money and its corrupting in- 16 cycles. fluence from politics;23 second, by enhancing 2 4 This Note analyzes possible FEC actions, the public's confidence in the political system; pending court decisions, and proposed legisla- and third, by encouraging civility during cam- tion that could once again dramatically change paigns.2a As part of the BCRA, Congress the landscape of political advertising. Section I charged the FEC with the responsibility of pro- of this Note examines the BCRA and the Su- mulgating detailed regulations necessary to 26 preme Court's subsequent ruling in McConnell implement and enforce the Act. v. FECthat created the environment that caused First, BCRA advocates hoped Title I of 527's to flourish. Section II focuses on FEC en- the Act would limit the corrupting influence of forcement of campaign finance laws and ex- soft money on federal campaigns by prohibit- amines a pending court case considering ing candidates and political parties from accept- whether the FEC acted arbitrarily by failing to ing or spending unauthorized funds. 27 Before require all 527's to register as political commit- the BCRA was enacted, "soft money" was of- -2005 486 "Bring It On" ten defined as funds that are used for political purposes but are unregulated by campaign fi- B. McConnell Sets the Stage for nance laws.28 Prior to the BCRA's passage, na- the 527 Drama tional parties raised substantial amounts of soft After the President signed the BCRA money from corporations, unions and wealthy into law "with reservations," 3 numerous plain- individuals. 29 Political parties used soft money tiffs, including Senator Mitch McConnell, filed to pay for overhead expenses, run issue ads, eleven lawsuits in the United States District and support state and local party-building ac- Court for the District of Columbia challenging tivities.3 Title I of the BCRA sought to elimi- the constitutionality of the new act. 39 The law- nate the influence of soft money on federal cam- suits were consolidated and considered by the paigns by prohibiting political candidates and Supreme Court in McConnell v. FEC.40 Under- national parties' political committees from so- scoring the case's importance, the Supreme liciting, receiving, directing, and spending un- Court cut its summer recess short to hear 31 regulated funds. McConnell.41 The Court also permitted four Second, campaign reform advocates hours of oral arguments, the longest period al- argued that the BCRA would restore the public's lowed since a 1975 case in which the Supreme confidence in their government by avoiding the Court considered the constitutionality of cam- 32 appearance of governmental impropriety. paign reform laws enacted shortly after 42 Large campaign contributions "look suspi- Watergate. ciously like bribes" when politicians grant po- In McConnell, the Court upheld the two litical favors to donors.33 The BCRA sought to main pillars of the BCRA: "the control of 'soft fight the fire of deep-seated public mistrust in money' and the regulation of electioneering politicians by eliminating perceived corruption communications." 43 The Court invalidated that naturally occurs when "large contributions only two minor BCRA provisions: a ban on [facilitate] access to public officials." 34 Many political contributions accepted from minors believed that taking soft money out of political and a regulation requiring parties to choose campaigns would help change the negative between making "independent" expenditures public perception that elected federal officials or "coordinated expenditures." 44 Furthermore, often auction their Congressional votes to the a portion of the opinion written by Justices 35 highest bidder. Stevens and O'Connor rebuked the FEC, im- Third, lawmakers expected the Act to plying that BCRA regulations were necessary increase civility in politics. The "stand by your because the agency, contrary to legislative in- ad" provision was designed to discourage poli- tent, had done a poor job of enforcing previous 45 ticians from running attack ads by requiring campaign finance laws.
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