"These Shadowy Groups"
During the 2004 Presidential election campaign, the Swift Boat Veterans For Truth damaged not only John Kerry's White House prospects but also the image of so-called "527" organizations, so named for the section of the U.S. Tax Code that governs them. The Bush campaign never endorsed the Swift Boat smears, but it never fully denounced them either (even as Bush said that he respected Kerry's Vietnam War service). Bush instead denounced what he and his spokespeople called "shadowy 527 groups."
There are, however, two very different problems with 527s. One problem, the one dramatized by the Swift Boat ads, is that they can lie with impunity. They say things that the campaign of the opposing candidate or party can't say directly without fear of blowback.
The second problem is that 527s facilitate evasion of campaign finance limits. Wealthy individuals and groups can pour unlimited funds into political advertising by 527s, so long as they don't coordinate their activity with the campaigns. That second problem is real, but as I argued during the 2004 campaign in this FindLaw column, there's no good way around it given our First Amendment.
Meanwhile, in the current election cycle we are beginning to see an unhelpful blurring of the two objections. The fact that an ad comes from a 527 may well be a symptom of the First Amendment and campaign finance system we have, but it does not mean that the ad is false, misleading or unfair.
Posted by Mike Dorf
There are, however, two very different problems with 527s. One problem, the one dramatized by the Swift Boat ads, is that they can lie with impunity. They say things that the campaign of the opposing candidate or party can't say directly without fear of blowback.
The second problem is that 527s facilitate evasion of campaign finance limits. Wealthy individuals and groups can pour unlimited funds into political advertising by 527s, so long as they don't coordinate their activity with the campaigns. That second problem is real, but as I argued during the 2004 campaign in this FindLaw column, there's no good way around it given our First Amendment.
Meanwhile, in the current election cycle we are beginning to see an unhelpful blurring of the two objections. The fact that an ad comes from a 527 may well be a symptom of the First Amendment and campaign finance system we have, but it does not mean that the ad is false, misleading or unfair.
Posted by Mike Dorf
posted by Michael C. Dorf @ 4:08 PM
3 Comments:
At 3:02 PM,
Sobek said…
"The second problem is that 527s facilitate evasion of campaign finance limits."
The real problem is they illustrate the futility of campaign finance limits.
Money will get into politics as long as it's worth spending there. The best way to keep money out of federal elections is to reduce federal power, and maximize state and local power where individuals have a louder voice anyway.
At 8:42 AM,
egarber said…
The best way to keep money out of federal elections is to reduce federal power, and maximize state and local power where individuals have a louder voice anyway.
I'm in the Floyd Abrams camp when it comes to speech, so I'm with you on the futility of the laws.
However, I don't think it's a matter of federal vs. state power. To me, it's largely a matter of lazy thinking by average voters who fail to look into these issues for themselves. Sure, I understand how hard it is to make time amid the competing demands for our attention, but still: nobody said democracy was easy.
If more people applied proper scrutiny, the culture itself would reject the cynical 30-second ad; it would be considered an insult to our intelligence and work against candidates trying to pull a fast one.
In fact, let me try to tie it to Prof Colb's post the other day: maybe the laziness I'm criticizing stems from the fact that the joy of learning gets lost in the mix during our younger years.
BTW, snow showers in ATL this morning. Odd....
At 1:21 PM,
Sobek said…
"If more people applied proper scrutiny..."
If everyone were virtuous we wouldn't need laws. But they're not, so we do. And they don't scrutinize, and until we open the re-education camps, they won't be. Better to acknowledge that reality and do away with ridiculous anti-speech laws so that those who do pay attention can have their voice heard.
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