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Benjamin Ginsberg, formerly the Bush campaign’s chief outside counsel, resigned last month after controversy over his representation of the anti-Kerry advocacy group Swift Boat Veterans for Truth. Ginsberg has pointed out that other members of the election bar simultaneously represent Sen. John Kerry’s campaign and other outside organizations, called “527 groups.” (These 527 groups are required by law to be independent of candidates’ campaigns.) Ginsberg is right that such dual representation by him and his Democratic counterparts is perfectly legal. But though legal, such activities in both parties are undesirable, creating intolerable problems with enforcement and public confidence. To remedy these problems, the Federal Election Commission should presume that such dual representation is usually inappropriate. ARE DUAL ROLES INEVITABLE? Such a presumption would be a change from the current system, where dual representation of campaigns and 527 groups is not unusual. In a commentary in The Washington Post on Sept. 1, Ginsberg noted that although “the [media] pack swarmed” because of his serving as counsel to the Swift Boat Veterans for Truth and President George W. Bush’s campaign, similar behavior is occurring among many Democrats. Ginsberg pointed to a “revolving door of connections to the Kerry campaign” involving leading Democratic lawyers (and other leading Democrats) with various “Democratic ’527′ groups.” He made clear at once, completely correctly, that for lawyers to have several such roles is “not illegal.” As for the nonlawyers, such as Harold Ickes, an executive committee member of the Democratic National Committee, and Bill Richardson, chair of the Democratic convention, who both head 527 groups, Ginsberg left open whether their conduct is legal — presumably because whether they (and others in similar dual roles) are illegally “coordinating” with the Kerry campaign is a live issue. It is just as live an issue with respect to several leading Bush supporters and groups. Are such dual roles inevitable? Should we bar party officials and aides — and people who had those roles in the past — from any political work for nonparty groups? What if they went to work on an issue their party is ignoring? What if they disagree with their party and want to work from outside to press for change? What if they are not from national committees but from only state or local parties, especially in places that lack Washington’s proliferation of political pros? On the one hand, fortunately our politics is not so frozen that we must try to petrify political advisers. On the other hand, if we allow dual roles and revolving doors, how do we ensure against blatant evasion of appropriate limits on what the party, or any one entity, can do? EVADING THE RULES The “swarm” of competing charges cries for context. Why do we have problems with two-hatted lawyers and revolving-door advisers? Two reasons: One is the effort to run negative ads “independent” of the candidate they aim to support — as the Kerry campaign claims is true of the Swift Boat ads. Consider also the 1988 “Willie Horton” ads attacking Democratic presidential candidate Michael Dukakis. The FEC split 3-3 on partisan lines and so could not move beyond an aborted investigation of whether those ads had been independent, as they purported to be. The second reason is the efforts to evade campaign finance limits. For example, start with the late Sen. John Heinz, who in 1983 launched a “Republican National Independent Expenditure Committee” that contributed $185,000 to the GOP candidate for the vacancy left by the late Sen. Henry Jackson of Washington. Since $260,000 (the legal limit) had already been contributed to that campaign by the National Republican Senatorial Committee — which Heinz had recently chaired for two years — the new Heinz group’s contribution stirred bitter conflict. Not only did the Democrats prepare a complaint to the FEC about illegal “coordination,” but — strikingly — the National Republican Senatorial Committee chairman, Sen. Richard Lugar, protested Heinz’s steps. After a few days, Heinz resigned from the National Republican Senatorial Committee. INDEPENDENT SPEECH Today, Heinz would not have to pull back as he did in 1983. Since 1996, thanks to the Supreme Court decision in Colorado Republican Federal Campaign Committee v. FEC, even a political party itself can engage in “independent” spending for ads, get-out-the-vote efforts, and so forth — so long as that particular activity is kept separate from the candidates and from any other party efforts “coordinated” with candidates. Consider Democratic National Committee Chairman Terry McAuliffe’s recent interview with Newsweek (as abbreviated by Robert Samuelson in The Washington Post on Aug. 25) about “independent” ads by the Democratic National Committee: “McAuliffe: ‘Legally, I cannot have that conversation. . . . I cannot signal to the Kerry campaign what type of ads we’re doing, how much money we’re spending, because that would be deemed coordination. . . .’ “Q: ‘You can’t tell him anything about what the themes of your advertising will be?’ “A: ‘No sir, absolutely not . . .’ “Q: ‘Do these rules strike you as absurd?’ “A: ‘Yes.’ “ Nonsensical as it is to believe that a party can campaign for a candidate independently of the candidate, there are some nonparty groups that are utterly, undeniably independent of any party or candidate. For example, in 1971, a group of retirees wanted to run one full-page ad (cost: $17,000) calling for President Richard Nixon’s impeachment because of the bombing of Cambodia. In 1972, another group wanted to run ads supporting the busing of schoolchildren. At the time, the law limited any “independent” spending to $1,000 total and also required the advance “permission” of the candidate the ad would “support.” (In 1971, there was no such candidate yet.) Lower courts held those limits unconstitutional in the early 1970s, and the law has recognized that First Amendment values protect genuinely independent grass-roots efforts. Ever since, campaign finance experts have agreed that the need to protect genuinely independent voices is the toughest hurdle for those who want to ensure against evasion of limits. How do we decide what is genuinely independent? Drawing the line between independent voices and evaders is a crucial feature of the Bipartisan Campaign Reform Act (commonly known as McCain-Feingold), which limits all “issue ads.” The issue ads are now limited whether they are independent or otherwise “genuine,” or whether they are mere shams trying to evade legal or political responsibility for supporting the candidate. The Supreme Court upheld the McCain-Feingold limits, but the Court flatly ignored how many issue ads have not been efforts to evade. A REBUTTABLE PRESUMPTION Regulating these issue ads is not a simple problem, but at least deciding what to do about two-hatted lawyers like Ginsberg and his Democratic counterparts is easy. If a group claims to be independent but chooses to use a lawyer or pollster or other campaign service provider who is also working (or has recently worked) for a candidate or party, then the FEC should presume that coordination exists. The group should be able to rebut the presumption by showing that factors other than coordination led to the dual representation and that the dual representation is reasonably necessary under the circumstances. For example, the group might show that in, say, Montana, there is only one Republican pollster or Democratic election lawyer with the needed expertise. Yet this exception would be narrow: On the national scene, many experts not currently representing campaigns are available to advise 527 groups. (I stress that I do no such work.) Thus, such dual representation typically would not be justified. If we allow dual roles even when unnecessary, we face a damaging dilemma. Either we investigate (intrusively and often fruitlessly) whether, when A and B work together legally, their talk strays into forbidden aspects of the campaign and thus becomes illegal coordination. Or we ignore possible coordination and thereby pull down public confidence in the integrity of our electoral process. Or, most likely, we do both. There is no question that the conduct of Ginsberg and the Democratic lawyers to whom he pointed has been legal. Knowing them personally, I have absolutely no doubt that they have abided impeccably by the legal limits. But I hope that Republicans and Democrats alike can agree that it would be easy to improve the law and strengthen public confidence in our elections. Roy Schotland is a professor at Georgetown University Law Center who specializes in election law.

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