Error in Article on 527s

Wealthy Liberals Give Heavily in Bid to Oust Bush in today's Los Angeles Times contains a serious error. One paragraph reads: "Last week, FEC officials issued a draft advisory opinion that said, in part, that 527s could not spend money to promote or oppose a federal candidate. But the opinion is not binding on the commission."
Of course, the draft did no such thing. It involved whether 527s should be treated as political committees, with contribution and source limits, as well as certain reporting requirements. Outside the context of corporations and unions, the Supreme Court has held it unconstitutional to limit spending supporting or opposing candidates for public office.

UPDATE: Marty Lederman writes:

Actually, although it appears to be a common assumption that the draft AO addressed the question whether 527s are "political committees" -- James's Bopp's Roll Call letter, for instance, makes the same assumption -- in fact the draft did not decide, or address, any such thing.

Instead, the GC assumed -- because ABC conceded the point -- that the particular 527 in question was a political committee, subject to contribution and source limits and reporting requirements. What the draft AO would (principally) hold is that if a particular organization is a political committee, it then would follow (i) that "federal election activity" consisting of committee communications “promoting, supporting, attacking or opposing” federal candidates should be considered to be “for the purpose of influencing a federal election”; (ii) that such communications are therefore “expenditures” by the committee; and (iii) that such communications thus must be subsidized exclusively with "Federal" funds (i.e., without the use of union and corporate treasury funds and individual contributions of more than $5000), a conclusion that follows from the GC's assumption that all of a political committee's "expenditures" must be paid for only with "Federal" funds.

As I've argued earlier, some of these "sub"-arguments are open to question, even if the GC's ultimate conclusion might be defensible. Moreover, that conclusion, even if correct, would still not resolve the question whether individual contributions to such an organization could be capped at $5000, because it might still be the case either that (i) the organization is not a "political committee," or (ii) the cap is unconstitutional as applied to such a committee.

Thanks for writing!

Posted by Rick Hasen at February 3, 2004 08:10 AM