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Threat of Law: Strategy of 2008? « The Washington Independent

Though only days old, a liberal non-profit group aiming to hinder Republican fund-raising this election cycle has already provoked a heated debate among legal scholars and political experts over its tactics.

Accountable America, headed by Tom Matzzie, a prominent progressive political activist, has sent thousands of letters to potential GOP donors warning of possible public exposure and legal peril if the recipient organizations are found to be influencing elections unlawfully.

(Matt Mahurin)
(Matt Mahurin)

Illustration by: Matt Mahurin

The strategy has gained praise from liberal groups, who remember all too well the power of the Swift Boat Veterans For Truth to harpoon Sen. John Kerry’s presidential chances in 2004. Campaign finance watchdogs are fighting hard to prevent that scenario from recurring. Conservatives, meanwhile, have blasted the recent mailings with charges of political interference approaching intimidation. The Swift Boat campaign, after all, played to their benefit. Some participants on a popular online legal forum recently equated the tactic to McCarthyism.

Rising above the cacophony, however, a new message is emerging, one that predicts the letter campaign — while an interesting campaign-finance experiment — will have little sway over the Republican donors it’s targeting.

“I would bet you a nickel that anyone who gets that letter — a warning from someone they’ve never heard of — it goes right into the wastebasket,” said Martin Anderson, a campaign strategist for both the Nixon and Reagan campaigns who is now a senior fellow at Stanford University’s Hoover Institution.

“These are well-heeled Republicans,” said Joseph Lowndes, a political scientist at the University of Oregon, “who are probably well-versed in what they can and can’t do with their campaign donations. I can’t imagine this doing much to impede their efforts.”

This episode cuts to the heart of the debate weighing the social benefits of disclosing political donations against the protections of individuals who choose to participate in the process through their pocketbooks. It also highlights the potential of outside strategists to influence elections. Within the ever-shifting landscape of campaign finance law, these operatives have discovered more and more creative ways to establish leverage. In 2004, it was the so-called 527 groups, like Swift Boat Veterans. This year, though it’s still too early to tell, it could be something quite different.

“Beyond the effort itself,” Lowndes said of the letter campaign, “this might signal a new variety of tactic and counter-tactic.”

Accountable America’s letter — complete with a “warning” label at the top — cautions potential GOP donors that the group will publicize the relationships between contributors and non-profits abusing their IRS status. The letter points out that two prominent conservative non-profits — Freedom’s Watch and Americans for Job Security — have already been subjects of official complaints. The scrutiny of those groups, the letter reads, “could trigger scrutiny of their donors.”

Accountable America is also offering a $100,000 reward for anyone who exposes “business-oriented or conservative” non-profit groups operating illegally to sway elections.

Critics argue that the strategy, though probably legal, is also unacceptable. Daniel H. Lowenstein, an election law expert at the University of California–Los Angeles, referred to the letter as “vile speech.”

“If it were regarded as acceptable behavior to threaten to dig up any kind of dirt on persons simply because they contribute to a political campaign,” Lowenstein wrote in an email, “it would be a disaster for our electoral system and if the situation became too extreme, could delegitimize campaign disclosure requirements.”

Bradley A. Smith, a former chairman of the Federal Election Commission who is now a law professor at Capital University Law School in Columbus, Ohio, said Matzzie’s letter campaign amounts to political harassment. “He wants to intimidate people acting under the law,” Smith said.

Judicial Watch, a conservative legal watchdog group, is weighing whether it will file a complaint against Accountable America. Judicial Watch President Tom Fitton said the letters might violate a 137-year-old anti-intimidation statute known informally as the Ku Klux Klan Act. “The issue is a civil-rights issue,” Fitton said.

Matzzie, the former Washington director of MoveOn.org, does nothing to disguise his aim. “We’re trying to diminish the power of the conservative movement,” he said, “there’s no doubt about that.”

But he was quick to offer that it’s his First Amendment right to do so. Accountable America is a 501(c)4 group, meaning it can participate in elections, but that participation cannot be its primary purpose. “We’re not engaged in electioneering,” said Matzzie. “We have no such goal.”

Much of the current debate arises from the memory of the Swift Boat Veterans group, that spent more than $20 million in 2004 on ads critical of Kerry’s Vietnam record. The campaign helped to topple Kerry’s presidential challenge.

In the wake of that election, several campaign-finance watchdog groups filed an FEC complaint, charging that the conservative non-profit, while operating as a political committee, was not registered as such. It was two years before the FEC ruled that the group had, indeed, violated its 527 status. The Swift Boat Veterans did not bother to challenge the verdict, opting instead to pay a $300,000 fine. Two other 527s — including one run by MoveOn.org — received similar fines. Accountable America is clearly acting with the hope of nipping the conservative groups before they can bud.

It’s unclear how the FEC would approach individual donors when recipient groups are found violating election laws. Smith, a Republican who had been appointed to the FEC in 2000 by then-President Bill Clinton, said that, when violations arise, the FEC tends to go after the organizations, not the donors — though the agency has the legal right to do both. “If there’s an illegal donation accepted,” Smith said, “then there’s an illegal donation given.”

But political experts remain convinced that Matzzie’s warning letters will do little to discourage potential donors. Some think the campaign might even energize Republicans to give more.

“These are not people who are easily intimidated,” said Michael P. McDonald, associate professor of government and politics at George Mason University and a Brookings Institution scholar. “These letters are probably going to backfire. [Recipients] will be even more likely to open up their pocketbooks.”

Matzzie, for his part, disputes that claim. “The egos of the super-rich are pretty fragile,” he said.

Tony Coelho, the former California congressman who served as chairman for Al Gore’s 2000 presidential run, said there’s little surprise that groups are attacking from every possible front. “The whole idea of intimidating people in the election process is nothing new,” Coelho said. “It’s part of the game.”

Coelho also had some encouraging words for Matzzie: “As a Democrat,” he said, “I say go for it — what the hell.”

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