Michael Malbin, President of the Campaign Finance Instutute, posted a response to criticisms here, and also to others by Brad Smith and John Samples, of his organization’s recent study of "Nonprofit Interest Groups’ Election Activities."  He says: "The claims simply are not true."   What is false, to his mind, is any suggestion that CFI is proposing additional regulation of tax-exempt organizations.  It is only a question of a "look," a survey of the facts, so that a "conversation" takes place.  

      Professor Malbin’s denial, considered as a whole, is not convincing.  After all, his organization is not charted to perform purely academic work, giving various facts a "look" because they are there to be seen.  It "makes recommendations for policy change," and the facts that it selects for a "look" are ones judged, in the first instance, to have policy significance. 

[Brief interlude:

But CFI, what big eyes you have!
The better to "look" at you, my dear.]

     Now, when Professor Malbin states that "to the extent that 501(c)s spend major amounts on elections, there will inevitably be pressure to look at the funding sources for these expenditures and not just at the amounts," he quite strikingly does not identify the source of this pressure.  Of course, CFI itself is one such source, having produced this study, publicly announced it and convened a National Press Club event so that it would attract its fair share of notice.  Justifying the study by appeal to inevitable "pressure"—pressure that CFI is generating or helping to build—is a bit like an author resting an argument on citations to her own prior works.

     In more substantive terms, Professor Malbin argues that "policy presupposes an ability to distinguish electoral from non-electoral expenditures."  This is meant to put at ease anyone fearful that CFI is hoping to move the law into a radically new direction.  All that is at issue, Malbin means to say, is the way the line is drawn in separating election-related from other expenditures.  It is not an easy task, but—so Malbin believes—it is one we have gamely taken up for "many years" and can presumably manage.  There are such things as "bad definitions," he writes, but in so conceding this point, he is sneaking in the assumption that "good" ones are also possible.

      The reform program of recent years, however, is mainly concerned with expanding the range of expenditures considered election-related.  Lines are being drawn in the broadest strokes to reach more and more activity of presumed electoral significance.  BCRA did its part, most prominently in the prohibition of certain "electioneering communications"; and reform organizations then went to war on behalf of the aggressive application of a "PASO" standard, one that probed whether communications "promoted, supported, attacked or opposed" a candidate, to enlarge the target for campaign finance restrictions.  501(c)s were originally placed squarely in the sights of this effort, during the FEC’s 2004 "political committee" rulemaking, until the outcry threatened the primary effort to curb 527 activity, at which point the chase after 501(c)s was abandoned.  Abandoned, that is, for a time—until the present moment, when (c)s are back on the reform agenda. 

      For CFI, this is the most recent of a series of studies of "interest group strategies" in managing legal constraints in the pursuit of influence.  CFI seeks to chart the way that, as the law changes, interest group strategies change:  the change is geared toward opening up new possibilities for influence that legal reforms have closed off.  This means that as the law tightens up on activities with a clear "election-related" purpose or effect, groups adjust with other activities, more vague in purpose and distant in effect, and the reform community then sets out to control this now new form of influence.  In no time the very "line" to be established, separating electoral from non-electoral activities, becomes hard to make out.  The very question of the difference is gradually rendered irrelevant.  Well-funded influence over policy—not over the outcome of elections—becomes the central aim of regulatory reform.

      It is clear from Professor Malbin’s reply that, as Brad Smith and John Samples immediately recognized, this is indeed the direction, both inevitable and intentional, of the CFI program.  Malbin’s describes the CFI study as "pathbreaking," and he applauds it for "putt[ing] uncomfortable facts on the table."  What he could mean by this reference to a "path," revealed to the public through the display of "uncomfortable facts"?  He means the path to new reforms, necessitated by the need to relieve this discomfort—a discomfort over those activities of (c)s and related organizations that, while technically legal, are, to CFI, disquietingly influential. 

Bob Bauer