Redstate

You say "Clinton-era FEC", but as you know, the FEC is comprised of six commissioners, three from each party.  I know you weren't trying to pin this on President Clinton.

The AO itself is here.

that the initial ruling happened under Clinton as literally everything (see the coal mine stories) that has happened in government since January 2001 has been blamed on "the Bush Administration". If you count the recession, the blame actually goes back even farther.

The interpretation that tribes are persons is, I think, unassailable.  Congress wrote the law to define "person" broadly, then applied specific prohibitions on subsets of this category - namely corporations, unions and foreign nationals.  Tribes are NOT corporations, unions, or foreign nationals.  So they are "persons" whose contributions are subject to the same per-donation limits as contributions from you or me.  Except they are not subject to the aggregate limits applied to "individuals" - because they aren't individuals either!  Trusts, by the way, fall into a similar gap - they are "persons" and they are not "individuals."

 Which is a long way of saying that you shouldn't "blame" the FEC for rendering a fair reading of the law.  If you want tribes treated like corporations - it may be that there are similar policy justifications for doing so - or as individuals with an aggregate limit, I believe the Act itself needs to be amended.

Is Indian casino gambling, says Fergus M. Bordewich in a fine WSJ op-ed on January 6. (Subscription required)

From the point of view of gaming's beleaguered opponents, however, tribal casinos represent a legal monstrosity that subverts the nation's constitutional order and breeds corruption. "Lobbyists, legislators and inside-the-Beltway lawyers are the real stakeholders in Indian gambling," says Alexis Johnson, a lawyer based in Arizona, who has served as an adviser to campaigns against the legalization of tribal gambling in several states. "Abramoff is just the tip of the iceberg." Mr. Johnson likens casinos to the infected goods that the British distributed to Indians during the colonial period. "This is the new smallpox blanket," he says. "But everyone is enamored of it because it has got dollar signs all over it."

And tribes have powerful friends. Nationally, between 1990 and 2004, tribal political contributions to federal candidates alone have ballooned from less than $2,000 to more than $7 million. In California, Native Americans have become the largest contributor to political campaigns: They spent $70 million on the successful 1998 campaign to require the governor to approve any tribal casino proposal (the requirement was struck down by the state courts a year later). Native Americans also contributed another $30 million in a similar and also successful campaign in 2000. And nearly one-fifth of all the money that was spent in the 2003 gubernatorial recall campaign came from Native Americans.

Perhaps the op-ed will be posted on the free Opinion Journal site this weekend. I'll check back and link, if so.

I'll just add on that this was a unanimous opinion, and if Scott Thomas and Brad Smith both thought it was right, it's probably right.

I think the point is that followers of this sort of thing were able to correctly foresee that the then-relatively-harmless FEC ruling would become a monster in the presence of McCain-Feingold.

If the consultants could see that, then it is reasonable to assume that McCain and Feingold could see it, along with the rest of the critters. A lot of people were opposed to McCain-Feingold, and their lobbyists would have been making sure that the "Indian money" issue was well-understood by the Members on the committees.

This means that the "Indian loophole" was not viewed by the Critters as a problem, but rather as an opportunity, as in, "Oh good, I can vote for this thing knowing there's a way around it." That points to a certain charlatanism in the passage of "Campaign Finance Reform," along with some advance knowledge that from now on their hard money would be arriving from the Indian tribes instead of being delivered in a plain brown wrapper by a brown-shoed intern in the dead of night.

... that Sen. McCain is far and away the greatest beneficiary of from the "Indian loophole"? I'm not suggesting it was an intentional outcome of McCain-Feingold, but the irony here is just beyond stunning.

The Reformer and the Loophole.  

Has a ring to it.

Sheesh.

"I know you weren't trying to pin this on President Clinton."

The flip-side of the blame Bush coin is that we have to point out every time Bush wasn't the president, no matter how far back in history you go. Otherwise the pat answer will be "Bush's fault". For example, I refer to the Civil War era as the "PreBush Civil War Era" now. I also call Ancient Rome "Ceasar-Era Italy".

I know you weren't trying to imply that Nick was trying to blame Clinton. And I know you aren't denying that it was, in fact, the Clinton-era FEC.