Fred Wetheimer at Democracy 21 has registered the same objection made here to comments by the official in charge of the Election Crimes Branch about criminal enforcement of 527 regulations.  In a letter to the Attorney General, Wertheimer complains that these comments, suggesting that enforcement was not appropriate, conflict with commitments previously made at the urging of Democracy 21:  he does not accept that rules can be flouted but the violations go unenforced as a matter of Department policy. Wertheimer demands that the official in question, Craig Donsanto, be removed from decision-making responsibility over enforcement matters.  The Center for Competitive Politics then took off after Wertheimer, jabbing at him for criminalizing complex questions of constitutional law.

     Each of the combatants, in at least one respect, has gone too far, though the CCP has gone much farther off course than Democracy 21.

     CCP argues that disputed rules can be disregarded because some, moved by constitutional scruples, don't like them.  This makes no sense.  Certainly controversial rules can be challenged in the courts, but for as long as the rules are in effect, their knowing and willful violation is not defensibly overlooked.  If what CCP argued here about 527 activity is true, then whole other parts of the federal campaign finance laws are equally safe from criminal enforcement.  The 527 rules are not the only ones that have been sharply questioned:  the entire field is shadowed by constitutional concerns and objections, and the Supreme Court has not set a stable foundation for limiting the breadth of these questions.  This cannot mean that while all this is being argued, actors can do as they wish.

     So, on the merits, Democracy 21 has the upper hand.  The solution urged by Wertheimer, at least for the short term, is to relieve Mr. Donsanto of his responsibility in this area.  Donsanto's comments, while unhelpful, don’t justify this step—a step that does not solve the core problem.  If Mr. Donsanto's remarks were "off the cuff" but the Department's policy is to enforce the law against knowing and willful 527 violations, as it would any other criminal violations of the campaign finance laws, then clarification of that policy is sufficient.  If it was not "off the cuff" and represents the Department's policy, then the policy should be corrected. 

Bob Bauer