## The First Amendment is NO Loophole

February 13, 2006

Dear Colleague:

I would like to bring to your attention to the attached editorial
written by former FEC Chairman Bradley Smith. This appeared in *Roll
Call* on February 9, 2006.

In recent days some proposals have been put forward to use Tribes as an
excuse to impose a broad new regulatory scheme limiting political speech
for millions of Americans. This proposal is put forward under the false
premise that Tribes have access to a \"loophole\" under our campaign
finance laws. That premise is entirely incorrect. To be clear: There is
***no*** loophole. Instead there is a proposal to extend
McCain-Feingold\'s limits on political speech into areas not now, nor
intended to be, covered under law.

The only sense in which it is accurate to say that the lack of an
aggregate cap on Tribes is a loophole is the explicit lack of such a
limit in our laws. But to call that a loophole is to view our campaign
finance laws from the wrong perspective. Under our Constitution, the
right to free political speech is not determined by the extent to which
the government positively grants us permission.

Political speech is central to a healthy democracy, which is why it is
given special protection under the First Amendment. And that is no
loophole.

> Sincerely,

Tom Cole

Member of Congress

**Play by the Same Rules? What Rules?**

February 9, 2006\
*By Bradley A. Smith, Former FEC Chairman\
Special to Roll Call*\
![](media/image1.wmf){width="1.0416666666666666e-2in"
height="9.375e-2in"}

In the wake of the Jack Abramoff lobbying scandals, some type of
lobbying reform appears to be a given. Unfortunately, the issue seems
likely to get tangled up in "campaign finance reform." The issues should
not be conflated.

There are at least two likely targets of campaign finance reform
masquerading as lobbying reform. One is the American Indian tribe
loophole, which allows tribes to bypass the aggregate donation limits to
federal candidates that individuals have to abide by, and to use general
tribal funds to do it. The other has to do with the free-spending
organizations known as 527s.

The hook for regulating tribes and 527s is the claim that they ought to
"play by the same rules as everyone else." Really? Just what rules would
those be? The rules that apply to The New York Times and The Washington
Post, which can endorse any candidate they want and spend unlimited
corporate sums to promote that candidate? Well, nobody means that. They
mean the "same rules" that apply to others who are not "press" - if we
can agree on who the "press" is, which is another issue.

In reality, there is no one set of rules under which "everyone plays."
Take 527s. Presidential campaigns, which are a type of 527 organization,
have one set of rules; leadership political action committees, also
527s, have another. House and Senate campaigns operate under a third set
of rules, and national party committees operate under a fourth. State
and local parties operate under different federal rules, not to mention
a plethora of state and local rules. PACs operate under different rules
from all the above, and the rules governing business PACs and union
PACs, though similar, are not identical. Nonconnected PACs - we're still
talking 527s here - have one set of rules, and trade association PACs
have rules. Then there are rules for independent 527 groups such as
Americans Coming Together and Swift Boat Veterans for Truth.

In addition, there are political participants other than 527s. These
include individuals - who are treated differently depending on whether
they are federal candidates, officeholders or officers of a national
party - plus corporations and 501(c)(3), (c)(4), (c)(5) and (c)(6)
organizations. All have different rules.

It is said that for tribes to "play by the same rules," they should have
the same aggregate limit on giving as individuals do - \$101,400 over a
two-year cycle. But PACs have no aggregate limit on their giving. So if
tribes were subjected to an aggregate cap, who would be failing to play
by the same rules, tribes or PACs?

Nor is playing by the same rules always "fair." For example, corporate
PACs play by one set of rules, as do labor PACs. But those rules are
biased in favor of large corporations and large unions over small
corporations and small unions.

Why so many sets of rules? It is difficult to write rules that respect
the First Amendment and allow for robust political activity - which most
of us consider a good thing - yet cover every situation, organization or
type of participation we want to limit. Furthermore, we often treat
different types of entities differently for policy reasons. And politics
affects the law: Powerful interests are best positioned to fend off new
rules that are disadvantageous to them. This all suggests that campaign
finance regulation is likely, over time, to favor the big, rich and
powerful over the small, poor and average.

Here are two ideas: First, separate lobbying reform from campaign
finance reform. They are not the same thing. The Abramoff scandal
focuses on bribery and fraud, which are already illegal. It also
concerns activity that is legal but may skirt Congressional rules or
generally accepted ethical norms. These problems can be addressed
through the internal rules of Congress. The solution need not jeopardize
the constitutional rights of citizens and their advocates to petition
members of government, the vast majority of whom are honest and
diligent.

Second, let's not adopt hasty campaign finance reforms because of
unrelated scandals and catchy slogans. In 2002, in Enron's wake,
Congress passed the McCain-Feingold law. Four years later, only the most
deluded would call the law a success. It has not reduced the time that
politicians spend fundraising; it has not made campaigns less negative;
it has not reduced the public perception of corruption in government; it
has not made campaigns more fair; it has not empowered average citizens;
nor has it reduced the power of special interests.

Let's not put additional regulation on an already confusing campaign
finance system. Instead, we should consider a holistic approach to the
issue, scrapping the current system entirely and rebuilding it while
giving serious thought to how citizens do, and ought to, participate in
campaigns given our nation's Constitution and traditions. We should
consider the actual effects of campaign finance regulation on our
system, rather than the wishful thinking of a small band of
foundation-funded "reformers" whose prescriptions keep proving wrong.

**Bradley A. Smith, former chairman of the Federal Election Commission,
is senior adviser to the Center for Competitive Politics, a professor at
Capital University Law School, and of counsel to the law firm Vorys,
Sater, Seymour & Pease.**