The New York Times grabbed the attention of CCP and others with its editorial on 527 "smears."  The Times applauded a court refusal to block application of existing rules that require 527s, such as the Real Truth About Obama, to comply with federal campaign finance laws.  What rubbed the critics the wrong way was the emphasis on the nature of the speech paid by the 527.  It seemed to them that, in the Times' worldview, the object of the campaign finance laws—of the 527 rules in particular—is to keep vile and dishonest speech off the air.

     The Times piece might lend itself to that reading, and it is unfortunate that it does, because it confuses the issue and gives its critics a pass they do not deserve.  The 527 issue the court addressed was one of whether the campaign finance laws applied to committees organized and operating in the manner of "The Real Truth About Obama."  In 2004, the Republican Party howled loudly about the absence of 527 regulation and pressed for it everywhere it could, before the FEC, the Congress and in the courts.  One of the leading proponents of the regulation was Bush-Cheney '04 and one of President Bush's choices for the FEC, then Chairman Michael Toner, was among those leading the regulatory charge. 

     The FEC acted, too late for the tastes of the Republicans; but the rules it promulgated, and the enforcement actions it launched, set the rules for this cycle.  Some had qualms about the rules—reservations were certainly expressed here, in this space.  But these were the rules passed.

     The Times' muddled argument plays into the hands of those whose legal positions in 2004 have shifted in 2008 to meet the needs of their political strategy.  They would far prefer to pitch their arguments as a defense of" free speech" than to admit that they have no further use for rules they once favored and are now eager to have ignored. 

     CCP is not among the shifty converts, one hastens to say:  it has always questioned restrictions on 527s within its broader program of doubting campaign finance regulation more generally.  Now CCP has fresh allies:  marching behind it, hoping not to be noticed, are partisans who clamored for rules four years ago and could not care less about them now. 

Bob Bauer