527 activity in this cycle will be monitored as critics of the law try to decide if anything has really changed since 2004 and 2006.  Will a flotilla of Swift Boats steam into battle?  Or has the FEC, having fined 527s famed from prior engagements, succeeded in discouraging their deployment? 

     Ruth Marcus, writing about a 527 heard from in the recent Massachusetts special election, believes that the government may have to strike harder to accomplish meaningful enforcement.  She reports on a band of operatives, associated with the Democratic Party, who put out mailings critical of the Republican and helpful to the Democrat, and she thinks this gang of 527ers was fairly cheeky, carrying on without attention to the rules.  "It’s less clear that [these] groups…will be deterred unless the FEC makes it clear the consequences of violations will be severe."

     It is certainly reasonable to expect that conduct may be controlled by the threat of more punishment, more certainly delivered.  The FEC could, for example, put out a policy that repeats (and explains) the test it has formulated for picking out 527 activity and that warns all prospective groups that the test will be applied without mercy.  Higher penalties could be advertised; the higher odds of a "knowing and willful" finding, supporting steep fines and perhaps even a referral to the Department of Justice, could be included in the recitation of potential consequences.  The FEC could then, if the response is unsatisfactory, proceed to make an example of wayward groups.

     This prescription for improved enforcement, on a range of campaign finance issues, has been advocated for years, and the results have been meager.  Rather than assume a hard-core community of lawbreakers and recidivists, one could consider the limits of just this regulatory vision. 

     On the most sensitive enforcement issues—the ones at the intersection of statutory authority and constitutional constraint—the government will encounter resistance.  More aggressive enforcement simply underscores the resistance, and it may even stiffen it.  Even where there is a willingness to comply with the law—and this depends on whether there is a even awareness of what the law requires—the abstruseness of the rules guarantee that in some number of cases, groups and the government will still come to blows.

     Marcus cites the fabled "prong B" of the express advocacy standard, which determines whether communications are properly regulated as election-related.  11 C.F.R. § 100.22(b).  The standard as written wanders in this direction and the other, noting that context can be considered but only to a "limited" extent; and that it is really a question of how "reasonable minds" would take in a statement that is "unmistakable, unambiguous and suggestive of only one meaning"—when "taken as a whole."  And this is a legal test?   It’s quite the mouthful, and the parts lack internal consistency:  how is it that a statement can be "unmistakable and unambiguous" but also, at the same time, simply "suggestive."  And yet a statement subject to this standard must be all three:  "unmistakable, unambiguous and suggestive."

     Boiled down, this language calls for the government to act on its best hunch or gut about what a particular statement, "taken as a whole," really means.  On the way there, it is supposed to apply this clumsy construction of a test, but its function is merely to give whatever conclusion the government reaches the semblance of a concrete legal foundation.

     Marcus may or may not be right that, of all the cases, this 527 in Massachusetts presents an easy one.  Her point is larger, however.  She is worried that the law, if not enforced with vigor, will be flouted by all manner of groups in 2008.  Many of these groups will not have ties to one political party or the other.  Its founders or members or donors will have been excited by one or the other issue in the campaign—yes, issues in the campaign—and they will want to speak as freely as possibly, expressing their point with the least amount of regulatory engagement with the federal government.  Some will find themselves on the First Amendment protected side of the line, reporting their activity as 527s but not having to operate under the thumb of the campaign finance laws, and others will not.  The difference will be none other than the government’s application to the latter and not to the former a test, one part of which is "Prong B."

     Frustrations like Marcus’ are not much different in character from the frustrations of critics of the law who would like to see less enforcement. Both Marcus and these critics are dissatisfied with the law’s inadequacies, viewed from different standpoints.  Marcus wishes to see Prong B strengthened by having it brandished more threateningly.  Critics doubt that it can be enforced more toughly without the government blundering into the regulation of activity it cannot, constitutionally, touch.  Uniting their critique is the impossibility each perceives in a successful execution of the regulatory task. 

     Marcus mentions only in passing that the 527 in her story is complying with a 527 related rule, in force under the Internal Revenue Code and requiring only disclosure.  She criticizes the tardiness of the disclosure, too late in her view to do the voters of Massachusetts any good.  This seems like the best place to start, with improved disclosure:  it stands a chance of success, unlike the more extensive regulatory controls that Marcus favors.

     But then no one is satisfied with disclosure for very long. 

Bob Bauer