As the clock runs out on its year—possibly, too, on its ability to function—the FEC can reflect on two very different approaches to deciding the hard or important cases.  In one case, the agency was asked how it should read rules that seemingly limit uses of technology to generate matchable individual contributions to a Presidential campaign, or contributions to PACs from an unrestricted supply of potential donors. It read the rules narrowly and disallowed the proposed activities. In another, still to be decided, the FEC will have to decide the SpeechNow. Org request for leave to operate truly independently with individual dollars—free of limits on what it can spend, but also on the amounts it can accept.  

   Two of the comments it received in these cases stand out, counseling sharply contrasting directions--one looking forward, toward a fresh vision of the limits of regulation, and the other regressively, defensively concerned with maintaining the Watergate era "anti-corruption" regime.  

   On politics and technology.  The FEC dashed ActBlue”s hope that it could serve as an online conduit, a facilitator, for individuals to make matchable contributions to Presidential campaigns, or to give money to PACs even when they, the donors, were not members of the connected organization’s restricted class (e.g. members of a union with a PAC).  ActBlue is a political committee, a good thing if one is happy to have it regulated and fully transparent in its operations, but this turns out to be a problem, too. 

   Under FEC rules, it was not clear that as a political committee, ActBlue could convey individual contributions without altering their character as purely individual contributions for “matching” purposes.  And in the case of the PACs, there as a question  of whether ActBlue could serve this conduiting function without effectively operating “on behalf of” the connected organization. The organization itself cannot solicit contributions from persons outside its restrict class, and it cannot do so, either, through an entity or person acting on its behalf rather than independently.

   Adam Bonin came along to comment for Daily Kos and BlogPAC and he argued for the FEC to read the rules flexibly with a view toward an enabling treatment of technology. It is fair to say that the rules present by their terms obstacles to the result he argued for.  These were not, Bonin suggested, insurmountable, particularly if the agency looked ahead to the role technology is playing and will continue to play, beyond imaginable limits, in opening access at low cost to mass political communication and association.  He wrote:

There is no conceivable purpose for campaign finance law that would be served by treating the ActBlue contributions as not-matchable under the law, as ActBlue…is more akin to a credit card processor than any other entity. This is technology being used to encourage small-dollar contributions which are at the heart of reforming our campaign system, and to treat it as "dirty money" seems ludicrous. Nothing distinguishes these from any other small-dollar contributions other than the website through which they were sent.

   The FEC chose the conservative course.  Although not, on the rules, obviously wrong, its decision was not a model for decision-making on hard or “first impression” cases on politics-and-technology issues.

   On independent individual speech and association. the FEC has yet to act on the Speech Now request, but Democracy 21 and other reform organization have responded quickly with discouraging words. To them, SpeechNow’s request is not “serious”: it is without doubt a “political committee”, and it must in its independent activities comply with all the requirements binding on political committees, including abiding by limits on each contribution it receives.  The case is “easy”; the FEC should find it “impossible” to decide it other than as Democracy 21 et al would have it decided.  Should SpeechNow be dissatisfied with the outcome, it can throw them off only with the assistance of a court.

   Much can be said in criticism of this legal presentation, not the least of which it is not especially “serious”.  It is cursory, and therefore superficial, in its treatment of the issues. It does not bother at all with the questions of free association thoughtfully presented, at length, in the SpeechNow request.

   Yet the commenters do attach a memorandum on the constitutional issues  commissioned from Professor Daniel Ortiz at the University of Virginia and submitted during the 2004 Commission rulemaking on “political committee” status.  Ortiz makes the best case to be made for treating independent committees like any other political committees, appropriately subject to contribution limits to curb their corruptive potential.

   But it is important to be clear about the nature of this case, which is to use the exhausted "corruption" rationale to blot out any space for association.  In Ortiz’ view, the stronger the association--the more potent that it is--the more inherently and unavoidably corrupt it must be, regardless of its independence:

Independent expenditure committees, like parties and unlike talk show hosts and wealthy individuals, have this same "capacity to concentrate power to elect." As the Court recognized in Colorado II, by pooling individual resources and monitoring, rewarding, and punishing more effectively than can any individual the behavior of federal candidates and officeholders, independent expenditure committees can "marshal the same power and sophistication for the same electoral objectives as the political parties themselves." This ability heightens the risk of corruption inherent in their power to serve as conduits.

   Of course, individuals sharing the same political objectives pool their resources precisely because they hope, through this collaboration, for greater effectiveness. In the Democracy 21/Ortiz account, this successful aspiration, when it is successful, becomes the very substance of the threat to the public welfare that the Government may counter with extensive regulation.

   We will see, in time, whether this is a “serious” view of the First Amendment.  It is not a particularly progressive one, and quite unlike what Adam Bonin had to say about politics and technology, it has little fresh or inspiring to offer about the productive future course of campaign finance regulation in a democracy that prizes and promotes participation.  And not just the participation  of the lone voice, but participation through the community of the like-minded, drawing strength through their numbers and not coming by virtue of this association under state suspicion and regulatory control.

Bob Bauer