Now that the Hensarling bill has been set aside, only 527 legislation remains to engage, in the near future, the Congress’ attention on campaign finance reform.  This is not simply the luck of the draw.  There is a reason why the latter will likely beat the former to a vote; and why the prospects for success of 527 regulation may be greater than those of Internet deregulation.  It is a reason central to understanding how campaign finance reform works.

       Of course, short-term tactical judgments can’t help but affect the outcome.  The House Republican leadership chose to tie consideration of Hensarling to a closed rule, which predictably roused the minority to opposition.  A question of policy, which could unite Democrats and Republicans, became one of factious process, certain to divide them.  When the Republicans concluded that the rule could not pass, they chose to avoid a vote altogether.  They may have thought that Hensarling would fall to competition from the CDT alternative.  It is not clear why they thought this.  And, as will be noted below, it is not at all clear why they should have gone out of their way to avoid the result.

       What more profoundly accounts for the outcome here is, simply, that 527 regulation, unlike Internet deregulation, has broad party and Member constituencies:  it matters to them, in the sense that what is at stake for them (both individually and for their parties) is clear, comprehensible, and important.  The Republican Party as a whole perceives in 527 activity a threat and an obstacle.  527s wrest control from parties, interfering with disciplined execution of partisan strategy.  For both parties, the taste for revenge, for the 527 attacks on George Bush and John Kerry, remains strong.  And in both parties, individual members are easily persuaded that on any day, at any time, a 527 can rise like some long-necked creature from the misty depths and attack them.  And the press, which so often signals what is properly taken to be reform, speaks with one, indignant voice against 527s.  It is “reform,” or so proclaimed, perfectly consonant with partisan and individual member interests. 

       Senator McCain, who understands the politics of reform, introduced an anti-527 bill last week, taking care to add to his confection some tangy ingredients which he assumed to be irresistible to his party and his colleagues.  S. Amdt. 2946 to S. 2349 establishes the familiar framework for regulation, but then adds two new provisions: a repeal of the party’s “coordinated” spending limits, a measure very popular with the Republican Party, and some adjustments to the Millionaire’s Amendment that clarify that parties can spend as they wish to protect their candidates from wealthy opponents.  Two provisions only, but potent ones, sure to draw a crowd:  one for the party (or at least one of the parties) and another for the individual members standing for reelection.  (See 152 Congressional Record S1916-S1918, Mar. 8, 2006.)

       By contrast, the argument over Internet regulation is a firefight barely visible on the distant horizon.  It is a complicated dispute:  there are obscure questions of Congress’s original intent and of the lawfulness of FEC regulations and of the actions of DC Courts.  There are sharply opposed contentions about the effects of different exemptions or inclusions spread out over various provisions of the statute.  The CDT proposal—championed by the reform community in the last minute—added to the bafflement on the Hill.  Nothing in all this argument seems much connected to the day-to-day concerns or interests of parties and Members.  The Internet seems, to them, to be doing just fine, free of scandal, helpful in raising money; and even some measure of prudent regulation would hardly seem catastrophic.  The excellent work of Daily Kos and Red State—of Adam Bonin and Mike Krempasky and others—is not quite enough to overcome this:  not without wide, more intensive and unflagging public engagement,

       This is why supporters of Hensarling will watch from the back of the room as the anti-527 measure proceeds to center stage.  There is something to be learned from all this.  Committed public engagement with these issues is sporadic and, for that reason, often ineffective, particularly on the close calls.  The reform community is working these issues all the time, in the press and on the Hill, and Congress, while campaign finance reform is not its highest priority or favorite issue, will act as necessary on perceived partisan and Member interests.  And, as Senator McCain proved this month in introducing Amendment, the reform program depends partisan and incumbent interests for votes, and those interests draw on reform rhetoric for their public justification.  It is an uneasy alliance, strained by mutual suspicion, but the dependency is also mutual.  

       For those not included in this partnership, such as Internet political activists, things will get better, but perhaps only when they get worse.  Once Internet regulation is well-established, and as it becomes sufficiently restrictive, pressure may build to levels sufficient to bring about change in the current (im)balance of power. 

      This would have been another good reason to have allowed a vote on CDT, which should have been permitted anyway.  It might have failed; it may well have passed.  But had CDT passed the House, the question of the future of Internet regulation would have been still more sharply, therefore usefully, framed.  And had it subsequently passed the Senate—had it become law, followed by an extensive FEC rulemaking to implement it—regulated Internet politics would become the order of the day.  At some point along the way, powerful, successful opposition would form, even if its work would be that much harder.   

Bob Bauer