"These Shadowy Groups"

During the 2004 Presidential election campaign, the Swift Boat Veterans For Truth damaged not only John Kerry's White House prospects but also the image of so-called "527" organizations, so named for the section of the U.S. Tax Code that governs them. The Bush campaign never endorsed the Swift Boat smears, but it never fully denounced them either (even as Bush said that he respected Kerry's Vietnam War service). Bush instead denounced what he and his spokespeople called "shadowy 527 groups."

There are, however, two very different problems with 527s. One problem, the one dramatized by the Swift Boat ads, is that they can lie with impunity. They say things that the campaign of the opposing candidate or party can't say directly without fear of blowback.

The second problem is that 527s facilitate evasion of campaign finance limits. Wealthy individuals and groups can pour unlimited funds into political advertising by 527s, so long as they don't coordinate their activity with the campaigns. That second problem is real, but as I argued during the 2004 campaign in this FindLaw column, there's no good way around it given our First Amendment.

Meanwhile, in the current election cycle we are beginning to see an unhelpful blurring of the two objections. The fact that an ad comes from a 527 may well be a symptom of the First Amendment and campaign finance system we have, but it does not mean that the ad is false, misleading or unfair.

Posted by Mike Dorf