1:13 PM EDT, August 12, 2013
The Democratic Governors Association wants to conduct federal electioneering activity — things like get-out-the vote campaigns and voter identification programs — but it wants to do it with money that isn't subject to federal campaign finance restrictions. The group, which bears the strong stamp of Gov. Martin O'Malley, is attempting to do that by exploiting a loophole in campaign regulations that, even if legal, is stunningly cynical.
The Bipartisan Campaign Reform Act of 2002 — better known as the McCain-Feingold act — bars an "association or similar group of candidates for state or local office or individuals holding state or local office" from conducting federal electioneering activity with non-federal funds. Though the DGA does not concede the point, it would seem obvious that an association of Democratic governors would fall under that prohibition. To get around that, two top officials at the DGA — including Colm O'Comartun, the group's executive director and a former long-time aide to Governor O'Malley — have created a non-profit group called Jobs and Opportunity to do that electioneering work on its behalf.
Just how far removed would Jobs and Opportunity be from the DGA? According to its request for an advisory opinion from the Federal Election Commission, the only two officers of Jobs and Opportunity are Mr. O'Comartun and DGA Chief Operating Officer Ben Metcalf; other DGA staffers and officers will help decide how Jobs and Opportunity spends its money; the DGA might provide funds for Jobs and Opportunity; and the governors who are members of the DGA will "generally" not play a role in strategic or operating decisions of the entity, though only because some state laws prohibit it.
In a memo to the commission, attorneys representing both the DGA and Jobs and Opportunity note that the McCain-Feingold law explicitly extends restrictions on the use of non-federal funds for federal electioneering activity to both state and local political parties and entities controlled by them, but it does not explicitly extend the prohibition to entities controlled by associations of state or local elected officials. The DGA argues that this distinction was not accidental: "Congress was acting at the very edge of its constitutional powers" in extending its restrictions to associations of non-federal officeholders but did so as a "prophylactic step" to prevent federal candidates and parties from using such entities to "supplant state and local party committees as the vehicles through which the coordinated campaign was run."
Why that risk would not exist if the activity was conducted by a wholly controlled subsidiary of a group like the DGA is not at all clear. Congress, for whatever reason, did not explicitly prohibit the kind of step the DGA is now attempting, but that doesn't make it good for democracy.
Any question about whether the DGA has gone badly astray on that point should be dispelled by its approving quotation of the Supreme Court's landmark Citizens United v. FEC decision of 2010 that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." Just how many elected Democrats, from President Barack Obama on down, would argue that with a straight face?
The DGA and its defenders say that anyone who thinks there's something untoward about what the group is planning doesn't understand the way political campaigns operate. Jobs and Opportunity would be a poor vehicle for running coordinated voter registration, voter identification and get-out-the-vote activities, the DGA argues, because other FEC rules would prohibit it from issuing communications that refer to federal candidates close to an election or even from using generic messages like "vote Democratic" within a certain time frame. Moreover, the DGA notes, federal candidates and national party committees would be prohibited from soliciting or directing non-federal funds to Jobs and Opportunity.
With all due respect, we know this much about the way political campaigns operate: Identifying, registering and turning out voters who support a Democratic candidate for governor is in almost all cases going to benefit Democratic candidates for Congress and the presidency, and vice versa. And those who are candidates for state office in one election cycle often become candidates for federal office in the next — chief DGA fundraiser and possible presidential candidate Martin O'Malley is a prime case in point.
As convenient as it might be for a group like the DGA to claim that it operates in a separate sphere, the truth is that everything is connected. How else would one explain the flood of donations to the DGA from companies with legislative or regulatory interests in Maryland immediately after Mr. O'Malley began a term as chairman of the group in 2011?
Mr. O'Malley is certainly not the first ambitious politician to see the advantages of a group that allows him to travel the country raising large amounts of money and doling it out to fellow politicians who might be in a position to help him one day. He won't be the last, either. But the Federal Election Commission doesn't need to make the rules for groups like that any looser.
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