Last week, I had the privilege and pleasure of moderating a Federalist Society panel that examined the topic of "Election Finance and 527s," which is particularly relevant right now less than a month before the 2008 presidential and congressional elections. Specifically, the discussion centered on the "constitutional, statutory, and regulatory questions about the free speech rights of non-profit or tax-exempt groups," and included panelists from both sides of the partisan and ideological aisle. Nevertheless, in introducing the topic and the panel, I noted that perhaps everyone on the panel would agree that this election cycle had seen a lot fewer television advertisements run by independent groups than four years earlier.
Everyone remembers the advertising and mobilization undertaken by groups like the Swift Boat Veterans for Truth, Progress for America, Americans Coming Together, MoveOn.org, and the Media Fund during the 2004 presidential cycle. But try to name an independent group that has so saturated the airwaves and blanketed the country this time around, and I bet you can’t name such a group for 2008. Quite frankly, with less than three weeks to go before Election Day, there are plenty of political ads, but nearly all of them — at least those I have been hearing and seeing in the battleground state of Virginia — are being cut, placed, and run by the candidates and their political parties.
So I raised this point to the panel about the noticeable lack of independent speech not only because four of the leading lights of campaign finance law were there to discuss that issue, but also because all four panelists came from battleground states where independent speech would, even should, be targeted. Former Federal Election Commissioner Scott Thomas, former Democratic National Committee Counsel Joseph Birkenstock, and myself all come from in the D.C. media market that includes Northern Virginia. Former FEC Commissioner and Center for Competitive Politics Chairman Bradley Smith hails from Ohio. And, noted campaign finance litigator James Bopp lives in Indiana. With this cross-section, I wondered whether anyone was hearing and seeing any independent political advertising that I hadn’t. The answer: The panelists all agreed that the 2008 elections have seen neither the magnitude nor the impact of independent political speech that marked the 2004 elections.
Indeed, if there was any doubt that our anecdotal accounts of a lot less independent political advertising were correct, then a story in the Boston Globe on Monday confirmed what we weren’t seeing or hearing. In its lead, the Globe reported that "[i]ndependent political groups, some of which made big splashes in the 2004 race, are playing reduced roles in this year’s presidential campaign." The story goes on to quote Ken Goldstein, director of the Wisconsin Advertising Project, explaining that his empirical research had found that "[g]roup ads still represent the dog that’s not barking." In fact, Goldstein went on to note that, "[c]ompared to 2004, a much smaller percentage of ads are sponsored by [independent] groups." The Globe article asserts the reason there is so little independent speech — especially compared to 2004 — "is partly the result of the sheer volume of advertising purchased by the candidates and parties," and also because "many activist groups are focusing this year on congressional contests, not the presidential race."
But that explanation doesn’t sound quite right. In 2004, President George Bush and Democratic presidential candidate John Kerry raised huge amounts of money for their campaign war chests. In fact, as I remember, one of the Democratic objections in the aftermath of Kerry’s loss was that his campaign had failed to spend all of the money he had on hand. Moreover, regardless of whether the 2008 presidential candidates have more money, I also have been hearing or seeing independent groups spending freely on congressional races, at least not anything like the advertising we saw in 2004. So there must be some other reason why independent groups are deciding not to speak up.
Here is where the panel discussion really explained just what has changed in these past four years. All of the panelists — and Bopp in particular — made it clear what has deterred independent groups from speaking this time around. The reason, quite frankly, is that campaign finance regulations have become so unclear and the penalties so severe that most independent groups, and the individuals supporting them, cannot take the risk of speaking up. As the panel explained, after the 2004 election cycle, the FEC investigated and prosecuted independent groups on both sides of the ideological aisle, including the Swift Boat Veterans and Americans Coming Together and all the rest. Not only did these FEC enforcement actions result in thousands and thousands of dollars in civil penalties, but they also opened up these admittedly independent organizations to full-fledged lengthy government investigations, including the inspection of document after document and the deposition of officers and donors alike.
With the threat of such serious consequences for speaking up, it shouldn’t come as any surprise that a lot fewer independent groups are willing to put themselves and their donors on the line to do so. In other words, it’s the chilling effect, stupid. The lack of independent political speech in 2008 is the direct result of the chilling effect created by the FEC’s prosecutorial pursuit of independent groups and their donors after the last election. It now appears to be too late to thaw this chill before Election Day, but hopefully the sound of silence from independent groups this time around will serve as a wake up call as to just how high the First Amendment stakes really are. Because if the enforcement authorities commit themselves to steering clear of prosecuting and punishing what little independent speech has emerged in this election cycle, then maybe, just maybe, the chill will thaw before we do this all again four years from now.
