On the face it, Gingrich’s explanation is plausible.  He wanted to run for President and run, at the same time, a 527, and he could not realistically, without legal risk, do both.  He abandoned a possible Presidential campaign, with a parting shot at the destructive campaign finance laws.

     Look again, and this line of argument does not hold water.  As usual, in the manner for which he become well enough known, Gingrich passes off a talking point as a considered bit of reflection on public policy.  Not that his larger point about McCain-Feingold is wrong:  there is plenty to say about the ill effects of this complex pastiche of “reform” rules, which have taxed the political process and put strains on the exercise of First Amendment rights.  Gingrich’s borrows on the cheap from this principled critique to buy credibility for his decision not to run.  It is a move, just a move, not the production of the thought leader that he aspires to be.

     Could Gingrich have conducted exploratory efforts while attending to the further development of what he calls his “nonpartisan” 527?  He says that he would have run risks of criminal violations.  But this is like saying that each time he gets behind the wheel of a car, he would have risked a criminal violation for speeding, or vehicular manslaughter.  Risks can be mitigated, or, in the best case, eliminated altogether:  this is what lawyers are for, and this is what Gingrich has had to say about the availability of the legal advice he would have to needed to preserve his exploratory opportunities:

Just as tax lawyers always succeed in out-thinking the (Internal Revenue Service) because they stay after five and the IRS goes home, the private-sector lawyers will always out-think the (Federal Election Commission) because they stay after five and the FEC goes home.

     Gingrich now discovers that his legal issue—and apparently only his—will have stumped the best legal minds and left those 9-5 FEC lawyers to have their way with him.

     In fact, as the most superficial legal research reveals, candidates in the exploratory phase can manage other enterprises:  for example, they can, and they do, run their Leadership PACs, and these PACs are also 527s, though ones of a different kinds from the “nonpartisan” 527s founded by Gingrich.  True, these other activities must be kept separate from the exploratory effort, but the legal work required to maintain the separation is not all that hard. 

      A lawyer worrying about these issues need not out-fox the agency lawyers; the agency has over the years supplied guidelines of use.  If afraid of running afoul of the coordination rules, Gingrich’s legal team could begin, without burning any midnight oil, by consulting…the coordination rules.  Some time between 9 and 5 on some series of sleepy work days, the agency put them out, for just the benefit of someone as befuddled as Gingrich, and their purpose is to moderate the risk of a jail term, if one assumes that they will be consulted in good faith.

      Gingrich tries to protect his flank by arguing that political adversaries would attack any legal arrangement he devised.  Nothing he could do, on the law, would help him:  he will be accused nonetheless, tarnished without hope of a fair hearing.  From Gingrich, this complaint emerges as exceedingly strange.  He built his own political ascendancy on a progression of attacks on a “corrupt” Democratic majority, fashioning his accusations from the raw material of House ethics rules.  When the same treatment came his way, he decided that he did not much care for this brand of politics.  By then, however, it was as much his brand as anyone else’s, and he had to live with it.

      Gingrich is right that McCain-Feingold has weakened First Amendment protections, a serious loss not offset by measurable gains in either clean government or restored trust in the political process.  He is wrong to think that he is a compelling spokesman for the point, and he is certainly not an object lesson in the law’s dangers or failures. 

      Activists and citizens less privileged then Gingrich, having none of his access to legal advice and information, run up against the law’s prohibitions and uncertainties with little of the technical or other support that he can command, and with no more hedge against risk.  Their alternative is not to arrange for their views to be propagated at will on prime-time cable.  The cost to them is not the abandonment of a Presidential campaign and, in place of the political activity they must forego, they cannot substitute the leadership of a national movement, along with the prospects of large speaking fees.

      Gingrich simply decided that all in all, he could do quite well outside the complex of rules that he would have to follow in entering a race in which the prospects of success, or of placing respectably, were far from sure.  He made a political decision and hit upon a face-saving explanation, credible with a particular audience. 

      It may be true that the campaign finance laws drive some people to set up a 527 when their cause—the policies and candidates they wish to promote—cannot be pursued as they wish, directly, within the obstacle course laid out by the campaign finance laws.  For Gingrich, cable star and policy entrepreneur, the choice was between alternative means of promoting Newt Gingrich and his views:  between promoting them through a Presidential candidacy or, with less risk of public failure, through a well-funded 527 policy initiative.  He probably chose wisely, with less need of a lawyer.   At least he has the alternative.

Bob Bauer