Last week the Campaign Finance Institute published a working paper on nonprofits and campaign finance. CFI styles itself as the moderate to conservative wing of the “reform community.” This paper, however, makes a radical proposal.

First, here’s some political context for the paper:

McCain-Feingold largely outlawed soft money contributions to the political parties. In the 2004 election, erstwhile Democratic soft money contributors used 527s as a vehicle for their political efforts. The Republican party by and large did not use 527s. So after the election, the GOP has naturally tried to eliminate the 527 vehicle. Democrats (and a few Republicans) have resisted that effort, and Congress seems unlikely to do anything about 527s this year. The effort to restrict political activities (i.e. “campaign finance reform”) has gotten bogged down for the moment.

The CFI paper tries to broaden the thinking of Congress and thereby the power of the government over free speech. It studies how 12 interest groups used political action committees, 527s, and nonprofit groups in the 2000, 2002, and 2004 elections. (The federal tax code puts nonprofits in the 501c section; they are allowed to engage in education efforts that involve political advocacy).

The sample relied on by the study should give pause. The study seeks to influence public policy, and campaign finance policy covers everyone involved in elections. Ideally, a study of interest groups in elections should be representative of all groups involved in elections. The CFI study does not try to show that their sample is broadly representative. That’s not surprising. It is highly unlikely that the CFI sample can be generalized. The interest groups chosen for the study will be familiar to students of American elections and policymaking; they are well-funded and highly organized. They are outliers and not a good foundation for making public policy that covers everyone.

The sample does have some interesting characteristics. It is evenly divided along partisan and ideological lines. Since the study looks at well-funded and highly organized groups, it thus examines potent threats to members of Congress on both sides of the aisle.

However, if Congress restricts only 527 spending, Democrats would be harmed more than Republicans. The CFI authors say that Republicans use the 501c groups more than the Democrats. The CFI study thus intimates that new restrictions on the political activities of 527s and nonprofits could be a good bipartisan compromise: Republicans would be rid of the 527 threat while Democrats would gain relief from the GOP nonprofits.

Yet upon further examination, the deal looks like more of a hit to the Democrats. The CFI data show that Democratic 527s spent many times what the GOP nonprofits expended in 2004. (The CFI authors contend public data underestimates spending by nonprofits because of inaccurate reporting to the IRS). So the CFI authors are essentially asking the Democrats to sign on to a bad deal.

Politics aside, the CFI study poses larger and more disturbing questions, too.
Preventing corruption has long been the primary legal justification for regulating campaign spending. To prevent corruption courts have allowed Congress to regulate campaign contributions and to treat spending at the behest of candidates as a contribution. The interest groups studied by CFI abide by these laws by using their political action committees to contribute to campaigns.

The focus on corruption also erected a wall between elections and politics. If you give money to a candidate, the thinking goes, you might bribe him and hence, your contribution should be regulated. If you didn’t give money to a candidate but wanted to spend whatever sums advancing your ideas independent of his campaign, that fell under free speech and enjoyed constitutional protection.

527s and nonprofits, on the other hand, spend money on elections and politics but cannot give to candidates. As they CFI study shows, much of this spending involves groups communicating with their members or trying to persuade the public in general. The 527 and nonprofit spending thus falls under free speech.

The CFI authors suggest otherwise. They argue that 527 and nonprofit spending could corrupt representatives. Members of Congress, they say, do not distinguish spending by legal category; PAC contributions, 527 efforts, and nonprofit work are all understood to be payments to a candidate, presumably prompting legislative favors in response.

If such spending risks “corruption,” it may legally be brought under the restrictions of campaign finance law, primarily mandatory disclosure of sources and limits on donations. Those strictures would eliminate all significant 527 spending and many small nonprofits.

The CFI authors provide no evidence that representatives see spending by 527s and nonprofits as quid pro quo contributions. They are also strikingly indifferent to the consequences of their proposal for the rights of their fellow citizens.

For CFI, the distinction between elections and politics and between contributions and free speech has outlived its usefulness. Not surprisingly, the CFI authors do not mention an unmistakable implication of their proposal: in the future, all spending on political advocacy sooner or later will be subject to campaign finance laws. The CFI authors do not mention how this extension of state power comports with the freedom to engage in politics promised by the U.S. Constitution.

Perhaps that’s because it doesn’t.

The judge who threw out Maryland’s Wal-Mart law (which would have required large employers to dedicate at least 8 percent of its Maryland employee compensation to health care benefits) apparently did so on interstate commerce grounds:

In yesterday’s decision, Judge J. Frederick Motz of Federal District Court ruled that the Maryland law, which was overwhelmingly passed by the Democrat-controlled state legislature in January, was pre-empted by the federal Employee Retirement Income Security Act, or Erisa.

The act sets out a national standard for company benefit plans, replacing what would otherwise be a patchwork of state regulations.

The law “violates Erisa’s fundamental purpose of permitting multistate employers to maintain nationwide health and welfare plans, providing uniform nationwide benefits and permitting uniform national administration,” he wrote in the decision.

Maybe that same judge should throw out state health insurance mandates. They have the effect of making it impossible for private health insurance companies to engage in interstate commerce. Once upon a time, the right to engage in interstate commerce free of state regulation was something in the Constitution — it did not merely depend on Erisa.

Forbes today posts a terrific article looking at many of the peripheral issues surrounding the online gambling debate that I touched on yesterday. A few key passages:

Big credit-card associations MasterCard and Visa have allowed issuing banks to prevent payments from going through to Internet gambling sites for several years by using specially coded computer software that identifies a vendor as an online gambling site. American Express also blocks transaction with gambling sites. The online payment service PayPal actually got into hot water over the issue and had to pay $10 million to the federal government two years ago to settle charges it helped facilitate illegal online gambling.[…]

But with billions of such payments made every year, compliance with a new set of monitoring laws will be difficult at best and financially onerous to say the least. Smaller banks would be hit harder than larger banks, which have the resources to build the compliance technology that would be needed to track payments and block them if need be. Smaller banks are already struggling with the additional costs of complying with stricter anti-money laundering rules under the Patriot Act.

[…]

Blocking wire transfers through banks would force people to be more creative if they still wanted to use the online sites–for example, opening accounts in foreign banks or using non-U.S. Internet payment services.

Certainly, the House bill, should it become law, would be a boon to PayPal because it essentially eliminates all other online payment service competitors from the U.S. market. That would include Neteller, a U.K.-based online payment service, whose stock was down 15% on the London Stock Exchange’s alternative investment marketplace, and Firepay, owned by FireOne Group, whose stock was off nearly 20% on London’s AIM market. Both those companies would have to give up their online gambling site customers if they wanted to do business in the U.S. “It’s a protectionist bill for PayPal,” says Cato Institute’s Radley Balko.

Not surprisingly PayPal, owned by eBay, enthusiastically supported last week’s legislation. Its only remaining competitor in the U.S. market would be Google’s fledgling Internet payment service.

But other financial firms have been supportive of the effort to clamp down on Internet gambling. In a statement Tuesday, MasterCard said the vast majority of its cards deny authorization for Internet gambling. “MasterCard will continue to work aggressively with all appropriate parties to combat illegal Internet gambling,” it said.

It isn’t surprising that the credit card companies are supporting the ban. They already agreed to block their customers’ access to gambling sites and offshore payment services years ago, under threats from the Justice and Treasury Departments, as well as from aggressive state attorneys general, particularly New York’s Elliott Spitzer. It’s a similar story with the larger banks, who can absorb the costs associated with the news legislation. Probably doesn’t hurt that it’ll deliver a blow to their upstart competitors, who will have to spend a higher percentage of operating costs to comply with the law than will the bigger banks.

And neither banks nor credit card companies want to incur the wrath of the ban’s supporters in Congress, who some insiders I’ve spoken with say have made clear that how these industries approach the gambling ban might well effect the outcome of what the banking and credit card industries consider to be higher-priority issues.

All of which means banks and credit card issuers are supporting the online gambling bill, even though it will raise the cost of doing business, and require them to infringe on the privacy of their customers.

Sausage-making at its finest.