Soft Thinking
The Tennessean thinks the Federal Election Commission's new regulations for enforcing new campaign finance reform rules on so-called "soft money" donations don't go far enough to curb free speech and is urging the FEC be reformed. The Tennessean's editorial board apparently hasn't realized yet that the soft-money ban itself is a toothless law.

As regular readers of HobbsOnline have known since April 25, the McCain-Feingold finance reform law has a very large loophole in it, as commentator Mickey Kaus revealed here on kausfiles. In a nutshell, McCain-Feingold regulates soft-money donations and campaign spending by corporations but says nothing about unincorporated groups and limited liability corporations, or LLCs.

Wrote Kaus: It turns out the new law's ban on last-minute ads only applies to corporations. True, most nonprofit "advocacy" groups - such as the Sierra Club and the ACLU - are corporations. But ... they don't have to be. It's perfectly possible to form a simple unincorporated association and still get nonprofit tax status. (You just have to show that your articles and bylaws meet IRS requirements.) And if you're not incorporated, then McCain-Feingold's ad ban doesn't apply.

If the editorial writers at The Tennessean are aware of the loophole, their editorial doesn't let on. The editorial whines that while campaign finance reform aims to stop the national political parties from funneling "soft-money" to candidates, the FEC's regulations will would allow state parties to put soft money into campaign ads that attack or support federal candidates. "It's the very sort of action the soft-money ban was supposed to stop," the Tennessean says. But the law wasn't written that way. The Tennessean, in effect, is urging the FEC to overstep its authority and write new law. The Tennessean's editorial also belittles a legitimate challenge to the constitutionality of the soft-money ban under the First Amendment.

This is not the first time the paper has blown it in an editorial on a crucial constitutional question.