Recent weeks have seen a ratcheting up of promises by outside groups to spend hundreds of millions of dollars in the presidential race. On the right, $2 million is expected from a conservative 501(c)(4) called “Defense of Democracies” for election-related opposition to House Democrats who oppose the President’s electronic spying plan. Another non-profit, Freedom’s Watch has pledged to spend some $250 million opposing the Democratic nominee.

And progressive groups recently floated a $400 million target for both electioneering communications and voter mobilization efforts. While the Campaign Finance Institute reports that a record $143 million was spent in 2006, that then-shocking total today looks like chump change.

A short history of how we got here is in order. As a new legal analysis and summary by the Brennan Center makes clear, before passage of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), campaign finance laws applied only to “express advocacy” – an advertisement for or against a candidate that used specific “magic words,” such as “vote for” or “vote against.” This test made it impossible to distinguish “sham issue ads” (ads that avoided these magic words, but were nonetheless intended to influence an election) from genuine issue ads (ads that advance a position on a public issue).

There were no limits on who could buy the ads or on how they were financed, and no disclosure was required. Hundreds of millions of dollars of corporate and union treasury funds – money that could not legally be used to influence elections – poured into federal campaign ads through the “sham issue ad” loophole.

BCRA initially closed this loophole. It banned the use of corporate and union treasury funds for “electioneering communications”– broadcast ads aired just before a primary or general election that refer to a candidate and target the candidate’s constituents. BCRA also required disclosure of funding for electioneering communications. The U.S. Supreme Court upheld these provisions in 2003 in McConnell v. FEC.

But in June 2007, in FEC v. Wisconsin Right to Life, Inc., the Supreme Court held that corporations could pay for ads using corporate treasury money, so long as the ad was not express advocacy or its “functional equivalent.” The meaning of “express advocacy” and its “functional equivalent” were further developed by the Federal Election Commission in a rule issued in November 2007 in the wake of the decision.

So what activity is now allowed? Quite a bit. As the FEC’s newly published examples make clear, so long as the ad does not directly impugn or support a candidate’s character or fitness for office, it can likely be paid for with corporate funding. Expect to see lots of ads attacking candidates on legislative positions that are not even remotely being considered in Congress.

And what is left of BCRA on the electioneering communications front? Rules that require groups to disclose electioneering communications are still good law (and were upheld 8 to 1 in McConnell). And federal law still requires political committees to disclose the identities of donors who bankroll electioneering communications and the amount that these committees spend on ads.

Since so much of the activity in this election is likely to be by largely unregulated 501(c)(4) organizations; however, who is paying for many attack ads will no doubt remain a mystery. This evasion of even basic disclosure rules makes everyone a target for vicious Swift-boat style attacks. Lawmakers, who often are made rubes by the anonymity of such ads, should be much more concerned than they seem to be about the loss of message control possible in this election.

Voters must also know about the wealthy interests seeking to influence elections before they can make informed decisions in the ballot box. The latest Supreme Court case – and ongoing efforts by groups across the political spectrum to evade the few laws that remain on the books – mean that voters, in this election, will remain in the dark about far too much.

Laura MacCleery is Deputy Director at the Brennan Center for Justice.

This entry was posted on Thursday, March 27th, 2008 at 2:45 pm and is filed under Uncategorized .