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Opinion

Don’t look now, a new loophole

David Broder Washington Post

It’s not true that Democrats and Republicans in Washington can’t agree on anything.

In July, they united in passing a $286 billion transportation bill that busted through President Bush’s supposed spending ceiling and provided goodies that almost every member of Congress can brag about at home.

If there is one cause that motivates politicians more than the pursuit of pork, it is the protection of their custom-made districts, shaped by computers and backroom negotiations to spare them the inconvenience of competition on Election Day.

California is the prime example of this bipartisan conspiracy to entrench incumbents. The largest delegation in the House – 53 members strong – is almost completely insulated from involuntary change, thanks to a deal the delegation’s key Republicans negotiated with the Democratic Legislature in Sacramento when lines were being drawn after the 2000 Census.

But now Republican Gov. Arnold Schwarzenegger has threatened to upset the cozy arrangement by sponsoring a November ballot initiative that would take redistricting authority away from the Legislature and hand it to a panel of retired judges.

The California representatives, regardless of party, see this as a threat. With Schwarzenegger free under California law to raise millions to support this and other initiatives, House members wanted to raise a kitty to fight him.

But they ran into a snag. The campaign finance law they passed in 2002, known as the McCain-Feingold bill, banned federal officials from soliciting unlimited “soft money” contributions “in connection with any election.” That meant that while Schwarzenegger, as a state official, could go for the big money, these poor congressmen would be limited to a few thousand bucks per donor.

Not to worry. The law is administered by the Federal Election Commission, whose six members are famously responsive to the members of Congress who put them in their jobs.

Two congressmen from California – Republican John Doolittle and Democrat Howard Berman – asked the FEC for an “advisory opinion” on whether the November initiative balloting is an “election.”

Some lawyers contend otherwise, but the general counsel of the FEC told commissioners the answer was unmistakably “yes,” citing an earlier ruling in Arizona.

But then the California delegation began to apply its muscle. Conveniently, Congress has permitted informal communication with FEC commissioners, provided they put on the record the substance and source of the lobbying.

The three Republican commissioners said they were contacted by Doolittle. Commissioner Michael Toner reported that “Congressman Doolittle contended that Governor Schwarzenegger does not speak for the Republican Party in advocating passage of the redistricting initiative,” adding that his “position was contrary to the views of the White House, the Republican National Committee and the Republican House delegation in California.”

Berman also enlisted the most influential Democrat he could find, House Minority Leader Nancy Pelosi, to call Democratic commissioners to condemn the general counsel’s opinion.

It worked. On Aug. 18, the commission voted to overrule its lawyer and allow unlimited solicitation of funds by members of Congress to fight the redistricting initiative.

The commission issued its ruling without providing any legal rationale for the decision. It just did what its congressional masters required.

This is, sadly, but the latest example of the way in which Congress is backsliding on the effort to curb the political money chase.

Mitch McConnell, the Senate Republican whip, arranged to have an amendment added to an appropriations bill that would loosen the restrictions on “leadership PACs,” the campaign committees many leading members of both parties use to funnel money into the campaigns of colleagues and parties, as a way of garnering support for future leadership contests. Now, transfers from those committees are limited in size. McConnell’s amendment would erase those limits.

Meantime, the whole question of billionaire-funded “527 groups,” the ostensibly independent campaign committees that played such a prominent role in the 2004 campaign, is still before the Congress. Some want to subject them to the same rules as apply to the parties. Others want to deregulate the parties to enable them to compete on even terms with the 527s. Neither approach commands a clear majority.

But with public attention focused on Iraq, hurricanes and gas prices, the loophole-openers are having their way.

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