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Why the Swift Boat Ads and the "527" Question Have Nothing to Do With Each Other

I haven't been able to fault Kerry's response to the Swift Boat ads and the other attacks. It took a day or two to know whether the media would choose to take this slander seriously, and as soon as it did, Kerry showed that he could respond quickly, sharply, gracefully and creatively. I'll accept that the attacks worked, in that they raised some doubts about Kerry, wiped out his misleading and temporary goodwill among conservative veterans, and helped knock a few points off his poll numbers. But Bush paid a huge price for a tiny advantage, the biggest price being that you only get one shot at an attack like that, and you had better shoot to kill. When the cycle turns, and Kerry is back on top, the Bush machine has incriminated itself and has no recourse to these same tactics. (Although the Republican convention suggests that perhaps Bush has realized that once you go into the gutter, you might as well stay there.)

One thing infuriates me about both Kerry's response and the media's gullibility, however, and that is the ease with which the factual argument about the Swift Boat vets' obvious collaboration with the Bush campaign has been conflated with the debate about the proper legal treatment of the independent political committees known as "527s," which has also allowed Bush to lure Senator McCain back to his side of the argument. I heard one CNN anchor casually refer to Americans Coming Together, which is a voter registration and turnout effort , as "another 527 attack group." The Swift Boat attack has very little to do with the legal structure formed to launch the attack, and everything to do with the nature, content, and truth-value of the attack itself.

I say this not to defend 527 groups. I agree with McCain and other reformers that 527s should be more strictly regulated. To be more specific, neither McCain nor Bush actually propose to "ban" 527s, since all political committees, such as the Democratic National Committee, the Republican Senate Campaign Committee, and the Sierra Club PAC, are regulated under Section 527 of the tax code and will continue to be. The ones I named above are also regulated by the Federal Election Commission and the size of contributions they can accept to influence federal elections is limited. But many 527s are not registered as political committees with the FEC. Often, that's perfectly legitimate. A committee that only intends to work on local or state elections doesn't have to register under federal law. But in the late 1990s, many of the short-lived front groups that were running attack ads in federal races chose to structure themselves as 527s for tax purposes, without registering as federal political committees. This allowed them to completely hide their contributors, until 2000 when a bill pushed by Senator Joe Lieberman required them to reveal their donors and the IRS to make public a database of those donors, one that only recently seemed to start working reliably.

It seems clear as day to me that those 527s formed solely to influence federal elections, like the Swift Boat gang, should be required to register as political committees and that those with a broader purpose and longer history, such as the moveon.org-affiliated 527, should have to attribute part of their spending to a federal political committee. The FEC has made a small, insufficient move in that direction, effective next year, and with all due disrespect to that flawed body, the line they have to draw is not an easy one to find. "Swift Boat" is not a hard case, but many of the others are.

But suppose that the FEC did everything that McCain could ask, strictly requiring any 527, and even many 501(c)4 nonprofits to register as political committees and use hard money for any expense related to a federal election? Would that effectively cut the Swift Boat group out of the game?

It would not. If it could not structure itself as a non-federal 527, the Republican operatives who created Swift Boat Veterans would have at least three other options:

1. A single donor could fund the entire ad. It's a well-established legal principle that a single individual cannot be limited in speaking in favor of a candidate, including buying ads, as long as he or she does not coordinate with a campaign. Texas Republican Bob Perry could have contributed $1 million if he wanted to, and funded the ads single-handedly. The same issues of coordination that apply to "Swift Boat" and to the Democratic 527s would apply here.

2. A hard-money committee could have been created. In this case, "Swift Boat" donors could give no more than $5,000, but if just one percent of the many thousand Bush Pioneers gave, it would go a long way.

3. Rely more on free media. It's obvious that the Swift Boat ad, like all the notorious attack ads of modern times (LBJ's "Daisy" and "Willie Horton," for example) earned free repetitions on the news that far outnumbered their paid placements. Swift Boat didn't need to buy all the time it did. A few spots in cheap markets, and an internet ad, can get as much coverage on the news as a much bigger buy. Thus, even with Bob Perry's $200,000 alone, the committee could have had most of the impact it had.

Given that the Swift Boat ads only happen to come from a 527 committee and could have taken these other forms, limiting the legal structure known as 527s would not have any effect on Swift Boat. That point needs to be made again and again. It also means that the "controlling legal authority" of coordination that would apply to a 527 or to an independent expenditure by a single individual are not the issue here. The issue should be the moral one of whether the Bush campaign knowingly permitted a false ad to go forward that they themselves would not have been willing to endorse.

There's also another misconception about 527s: The press routinely echoes the Bush line that there are more Democratic 527s simply because Democrats were slicker at finding the loophole. Wrong: Democrats turned to 527s because they anticipated that their candidate would agree to the voluntary limits set by the presidential public financing system and would be absolutely flat broke from March until August. They had no way to anticipate that their nominee would, like Bush, drop out of the public financing system for the primaries and thus be free to raise and spend money until the convention, or in particular, that a base of small and moderate individual contributors would suddenly appear on the Democratic side. The irony is that the Democrats are actually far less dependent on their big-dollar 527 donors than they expected to be as recently as Valentine's Day. McCain-Feingold didn't create 527s, but the limits it placed on parties increased the perceived importance of this particular alternative outlet.

The point is that there will be outside money in politics. That's just the way it is. Any campaign finance reform that is premised on the idea that we can "get big money out of politics" is naïve and doomed to fail. This is what I have referred to as "the limit of limits." And there will be dishonest attacks in politics, which often will ride on outside money.

If there will always be such attacks, the only solution is to make sure that campaigns can respond. Imagine how much more effective the Swift Boat ads would have been if they had run before the Democratic convention (and therefore, before the nominee received public funding for the general election), and Kerry had not opted out of the public financing system for the primaries, or had not been able to raise $180 million from individuals. During that anticipated "dark period," the "Swift Boat" attack would have gone without a response, unless another 527 got involved.

Public financing systems in Maine and Arizona have many appealing characteristics, but one of the most overlooked is that, because they are not based on limits, they can deal with this problem in a different way, by ensuring that attacked candidates have the opportunity to reply. A candidate who agrees to participate in the public financing system, and who is attacked by independent expenditure groups, regardless of legal structure, receives additional public funds to reply. This is not a perfect system. It requires a state official, typically the state's ethics officer or commission to determine very quickly whether an ad really is an attack intended to influence the election. It can allow plenty of stuff to sneak in, and it can also have a chilling effect on some non-electoral ads whose sponsors might hesitate to trigger the match. Another approach would be voluntary spending limits, as in the presidential public financing system or the New York City campaign finance system, but allowing the spending limit to increase for a candidate who is subject to attacks. None of these are immediate answers to the challenge presented by the Swift Boat ads, but the press should not have been so gullible in accepting that restricting 527s would somehow rid politics of false advertising.

Posted by Mark Schmitt on August 30, 2004 | Permalink | Comments (2) | TrackBack

On Marvin Olasky

Josh Marshall last week seemed a little shocked to discover the deep insanity of Marvin Olasky, the crackpot credited with George Bush's ?compassionate conservatism.? Olasky had published a column arguing that Kerry's very decision to join the Navy and request service in Vietnam was actually nothing more than a ploy to avoid service in Vietnam, indeed a savvier tactic than Olasky's own or Bush's. After reading it more closely, Josh also questioned whether there was an anti-Catholic smear in Olasky's assertion that Kerry's sin (not clear to me what it is) could never be redeemed because he was "once-born" whereas Olasky and Bush had acknowledged that "only God saves sinners."

Is there a religious smear in Olasky's column? Of course there is, although one man's smear is another's theology. And it deserves a little more discussion, because Olasky is one of the most disturbing characters in the Bush pantheon, the domestic equivalent of a Doug Feith or Michael Ledeen. In any normal world, he would be ranting on a street corner, but in Bush's America, Olasky is a trusted advisor whose book, The Tragedy of American Compassion, is, I believe, the only text that Bush has ever cited as an inspiration for his domestic agenda.

I read the book in the mid-1990s, when Newt Gingrich and the not-yet-born-again (as a liberal) Arianna Huffington were touting it. I expected an argument that religious institutions should play a greater role in delivering social services, an argument I was prepared to be sympathetic to, although with the typical liberal caveats about discrimination and proselytizing. Instead, the book is as much an attack on American religion as on government programs. To Olasky, the "tragedy" of American compassion was the existence of compassion. The trouble all began, he argues, not with the Great Society or the New Deal, but with Jane Addams. Before Addams (a deeply religious woman, by the way) brought her tawdry ideas about "compassion" to Hull House, religious groups handed out prayer tracts, not food, and forced poor people to attend church rather than giving them shelter. Since only God could save the poor, anything other than spiritual salvation causes more harm than good. There is no question that Olasky's version of a "faith-based initiative" would involve paying churches to not deliver social services.

Olasky disappeared for a while and then supposedly Karl Rove introduced him to Bush, which led to the "compassionate conservatism" of the 2000 campaign and the "faith-based initiative." Olasky's radical evangelism could hardly have fit well with the far more responsible -- and good -- ideas of John DiIulio, which is why it was never a surprise to me that the faith-based initiative never amounted to anything. For too many people, probably including Bush, it was always an excuse to do nothing.

Then there is the matter of Olasky's pose as a modern-day Whittaker Chambers. He has seen the dark side of the left, he says, and he alone sought redemption for his sins. Olasky is referring to the 1970s, which he spent as a member of the Communist Party-USA. Now, there is something powerful in the experience of a Chambers or a James Burnham, people who were Communists in the 1930s, and seared by the Hitler-Stalin pact or the revelations of Stalin's crimes, began to see how their earlier idealism had betrayed itself. It made many of them wiser and more skeptical of absolute systems of truth. But the 1970s? The Communist Party-USA, disgraced decades earlier? That may be a crime, but worse, a pretty dimwitted move. Even among serious Marxists, 99.9% would never have joined the CPUSA in the Brezhnev era. Rather than give credibility to Olasky's later conversion, his Communist past has always seemed to me to call into question his basic judgment. Why would you trust someone more because he was a moron in the 1970s? Obviously, he is one of those people who is driven to seek the farthest extremes possible, and likewise in the choice of his religious affiliation in a self-created denomination known as the Presbyterian Church in America (not to be confused with other denominations with similar names), which is about as far outside mainstream protestantism as the CPUSA was outside the mainstream of leftist politics in the 1970s. (He cast off his former religion, Judaism, the same way he cast off Communism.)

Finally, there was an interesting line in Olasky's column that Marshall found. Referring to himself and Bush, in contrast to Kerry, Olasky wrote:

The other thing both of us can and do say is that we did not save ourselves: God alone saves sinners (and I can surely add, of whom I was the worst). Being born again, we don't have to justify ourselves. Being saved, we don't have to be saviors.

I'm not really qualified to understand what he's talking about, but there was an echo there of that amazing, shocking Bush comment to Bob Woodward: "I do not need to explain why I say things. That's the interesting thing about being president.  Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation. "

Senator Byrd and others who have called attention to this strange quote have seen it as an extreme example of presidential arrogance. But it may be that they are, like so many before them, reading with secular eyes and ears language that has a far different meaning in a particular religious context. But I'm just speculating here because I am out of my depth on the subject of the varieties of born-again-ism.

I wish the Republicans had had the courage to introduce the nation to Mr. Olasky at their convention. Zell Miller's "conversion experience" just doesn't go far enough.

Posted by Mark Schmitt on August 28, 2004 | Permalink | Comments (13) | TrackBack

Paid sick leave

According to the brilliant analysts at the Institute for Women's Policy Research, sixty-six million workers, or 54% of the workforce, does not get a single paid sick day after a full year on the job.

That statistic, I think, is one of the best indicators of the two classes of the labor market, and how the divide is not so much about wages and income as about benefits and security. And those of us on the relatively secure side of the divide cannot really understand how different life is in a world where you don't have any paid sick leave. I might think I understand what it is to earn low wages -- $10,500/year, in my first job -- but I've never had a job that didn't offer sick days. Can't even imagine it.

(I did work at a company once that had a clever policy: You could take as many sick days as you needed, but at the end of the year, if you had significantly more days than the average for the company as a whole, you had to talk about it with your supervisor, and perhaps there were some steps after that. That seemed fair, and it discouraged you from thinking of sick days as a use-it-or-lose-it allotment, like personal days.)

IWPR mostly talks about the lack of paid sick leave as a matter of income, health, and productivity, arguing in support of legislation to require paid sick leave. That argument is compelling, but I'd like to know something else about this number: How many of these 66 million are actually at significant risk of losing their jobs if they take one or more sick days?

Jacob Hacker has a sort of preview of his next book in The New Republic, and I think he is most clearly saying the big thing that needs to be said about the economy: That the principal problem, the big thing that has changed, is not the number of jobs, the rate of growth, or income inequality. It's the shift in risk from the government and corporations onto individuals. We are all experiencing this risk-shifting -- our savings are in stocks and mutual funds, not certificates of deposit, our pensions are 401(k)s, not defined-benefit plans -- but while some of us have been able to exchange the security of the past for greater economic opportunity, a majority of workers are absorbing more risk without accompanying reward. The paid-sick-leave numbers are just one indicator of this phenomenon.

I'm convinced that if Kerry and other candidates begin to hit the language that Hacker sets out for them, they will be met with the same "he really gets it" phenomenon that helped elect Clinton in 1992.

Posted by Mark Schmitt on August 9, 2004 | Permalink | Comments (9) | TrackBack

"The Reform that Backfired" -- My Latest American Prospect Article

Sorry for the drought here lately. Some major life developments beginning to come into focus, on which more to come later. For those of you who haven't given up, my latest column in the American Prospect online went up today:


For those interested, here are links to Amazon for the two books mentioned in this essay:

Julian Zelizer, On Capitol Hill : The Struggle to Reform Congress and its Consequences, 1948-2000

Robert C. Byrd, Losing America: Confronting a Reckless and Arrogant Presidency

Posted by Mark Schmitt on August 9, 2004 | Permalink | Comments (1) | TrackBack