Gerry Hebert, Executive Director of the Campaign Legal Center is mightily indignant that Commissioner Michael Toner and I this week published an op-ed critical of the FEC's decision to reject any exemption from the 30- and 60-day broadcast bans for “grassroots lobbying.”  In today’s Roll Call, he states his case against us with a heavy dose of vitriol that he hopes to pass off as moral outrage.  J. Gerald Hebert, "Chairman Toner: What Were You Thinking?", Roll Call (Sept. 28, 2006).  One of his grounds is substantive—he claims that we misrepresent the issue—and the other is a grievance against the ethics of our co-authorship.  The style of argument here cannot surprise any veteran of these arguments:  reform arguments are well-intentioned and sound because, well, reformers, good people with good intentions, have said so, and their critics are doing the bidding of interests with little regard for the public welfare or responsible discourse.  Such reform critics are not only wrong:  they behave badly.  

     Commissioner Toner can speak for himself, quite effectively, but it cannot escape notice that his outspokenness never troubled the reform community when it was practiced on their behalf.  In recent years, Chairman Toner has associated himself with the reform community on two major issues:  “reform” of the presidential public financing system and the regulation of 527s.  He has been invited to their conferences (see here and here), where he lent his authority as a regulator to their causes.

     In the case of the 527s, he made his views known even in Roll Call op-eds, in the middle of the battle, a choice on which I commented at the time, but as strongly as I disagreed with his position, I chose to answer him on the merits.    

     And that was the end of it.  The reform community was silent:  not a whisper from reformers was heard about Commissioner Toner’s “ethics” or prejudgment of issues such as those presented by 527s.  The explanation for this is uncomplicated:  Toner stood with the reform community and so it was this alone—not, as I would have it, his right to speak out these issues—that kept him in good standing with reform supporters.  In these endeavors, Toner worked closely with former Commissioner Thomas, who was also liberal with his opinions about how the FEC must deal with the “527” issue.  Thomas suffered no censure from his admirers in the reform community for prejudging issues or for allying himself with one side of an active regulatory dispute with a direct impact in present and future cases. 

     Now Toner is apparently misbehaving, since he disagrees, as do I, with the reform community’s relentless resistance to any protection of issues speech from the reach of the 30- and 60-day broadcast ban.  He joined with me in the op-ed at issue after the FEC declined to initiate a rulemaking, as I urged on behalf of one of the many clients allied in support of an exemption.  The FEC has published this decision in the Federal Register; it is there for Mr. Hebert to inspect, and if he attended the Commission meeting, he would have heard the controlling bloc of Commissioners state clearly that the matter was closed:  that these Commissioners would not return to this issue unless the Courts left them no choice by holding for complainants seeking this exemption, on constitutional grounds, in pending litigation.

     Of Hebert’s various legal arguments, it would seem that, a fine lawyer, he should be able to do better.  It is astonishing that he should say that BCRA disallows any grassroots lobbying exemption; and if it did, this must be news to Senators McCain and Feingold, who presented their own proposal to the FEC for precisely such an exemption.  And Hebert is well aware that the FEC tried but failed to persuade the Supreme Court to reject all “as applied” appeals for the protection of specific grassroots lobbying ads.  On remand, a lower court is reviewing ads on just such an “as applied” claim.  Hebert is free to argue and entitled to believe with all his heart that such an exemption would be ill-advised, but his passion on the subject is so unbounded that he is struggling to see the difference between law and preference, between the “is” and the “ought.” 

     One other sore spot for Hebert is our reference to the 30- and 60-day prohibitions as a “ban.”  He holds that there is no such ban, because the corporation or union wishing to run an ad can pay for it with PAC funds.  This is all well and good for those organizations with a PAC, or the legal right to establish one, or with sufficient funds in the PAC that they happen to have; but for others, whose only effective recourse is the use of treasury funds, there is no way around their problem.  They are banned from using that money; and this is a ban on the speech that the money would fund.  Governments have always found it prudent to restrict speech through an attack on means rather than the politically riskier, more indelicate attack on ends.  No, Members of Congress did not write a law that stated:  “No corporation or union may finance any criticism of any elected officials running for reelection within 30 days of their primary or 60 days of their general election.”  In place of “criticism,” they substituted “reference,” and rather than fully exposing their intentions, they chose to “only” prohibit the use of the most available funds, treasury funds, for the most effective means of reaching a mass audience, namely, radio and broadcast advertising. 

     No, not a ban!

     But what seems to have most enervated Hebert are the questionable ethics of Toner and his co-author.  In my case, he characterizes my views as “tirades,” and he seems to believe that I possess no conviction other than that for which I am paid by clients trolling for “loopholes.”  

     What can I say?  For years prior to BCRA, Hebert litigated redistricting cases for which he was well and rightly compensated, with soft money raised by officeholders pursuant to a “loophole,” fashioned by the FEC he holds in contempt and criticized by reformers as inconsistent with BCRA.  It never occurred to me to suggest, and I do not believe, that his position on the corruptive nature of these funds has changed with the signature on his paychecks.  I would hope that he consider extending to me much the same benefit of the doubt.  My progressive politics is not morally inferior to his.  I just happen to believe strongly that this politics is not advanced but is seriously compromised, in doctrine and effectiveness, by restrictions on political speech and association.  This is a serious difference of opinion, not done justice by name-calling and by yet another round of posturing about who supports “enforcement” and who favors “loopholes.”

     And if there must be issues of ethics here, why would the co-authorship of an opinion piece be more troubling than the multiple engagements of reform organizations that, while urging the adoption of legislation, also provide to Congressional supporters hundreds of thousands of dollars in free legal services on those same issues?  Some prominent reformers (not Hebert, but other reform organization leaders, whose names can be supplied on request) are lobbyists, registered as such under the Lobbying Disclosure Act, but they act also as attorneys for the Members whom they lobby.  House and Senate rules permit this:  a loophole, you might say.

     Some weeks ago, answering an opinion piece I co-authored with Jan Baran, Mr. Hebert’s colleague at the Campaign Legal Center, Trevor Potter, joined with Fred Wertheimer in a similarly ill-tempered attack.  Baran and I, having written that we would gladly host our critics for lunch, realized that our olive branch had been swatted from our hands.  I renew the offer to Gerry Hebert, a fine lawyer and an engaging adversary on his better days, especially because he is a gourmet with an excellent taste in wine whose case—and apparently irritable frame of mind—could only improve with a good meal.  

Bob Bauer