"Shut Up, They Explained"
HAYWARD, ALLISON R.
Shut Up, They Explained The Obama campaign tries to suppress an ad. BY ALLISON R. HAYWARD It’s not so much what you say, as how you say it. Never is that more true than in the funding...
...Heads explode at the DNC at the mention of Alberto Gonzales or Monica Goodling for their alleged politicization of the Bush Justice Department...
...I leave for others to debate the accuracy of AIP’s facts...
...The problem is whether he can do exactly the same thing through AIP...
...Or it may not...
...Allison R. Hayward is assistant professor of law at George Mason University School of Law...
...The Amerian Issues Project is a tax-exempt social welfare organization, meaning that it pays no tax on money it receives, yet donors do not get a tax deduction as they might if AIP were a charity...
...Coordinated spending equals contribution, and Simmons’s contributions could then not exceed $2,300 per election per candidate...
...A group called the American Issues Project (AIP), with roughly $2.9 million of funding from Simmons, has produced and purchased air time to set before the American people—in certain swing states—their issue du jour...
...To fully appreciate the signifi cance, the viewer must also learn that William Ayers, said activist, is not (as one might assume from the name of the group) a climatology blogger...
...It is also incorporated...
...The latest presidential dust-up involves the irresistible combination of a billionaire corporate raider, the sixties, the Department of Justice, and something judges dreamed up called the “major purpose” test...
...Unfortunately for the campaign’s credibility, AIP’s setup may be completely sound...
...Supporters have flooded TV stations running the ad with complaints...
...Likely, the Federal Communications Commission and the Federal Election Commission will be hearing from him, too, but agents for these departments don’t carry sidearms so they are a bit further down the list...
...But that right buckles under the weight of campaign fi nance regulation as soon as Simmons sponsors a group effort...
...The Obama campaign, faced with this broadcast, has mounted a multifaceted campaign to break AIP’s kneecaps...
...Federal law in general prohibits corporations from spending money on campaign advocacy...
...One fundamental tenet of American campaign fi nance law is that an individual may spend as much of his own money spouting off about candidates as he desires, provided his efforts are not coordinated with a campaign...
...Not aha...
...Instead, it is worth taking seriously the claim by Obama’s camp that the means chosen to make the communication are “blatantly” unlawful...
...AIP declares that it was formed to promote political ideas, but that campaign advocacy is not its major purpose...
...Unless . . . the campaign activity became the major purpose of the group...
...Beneath it all lurk unanswered legal questions that make law professors swoon and candidates curse...
...BY ALLISON R. HAYWARD It’s not so much what you say, as how you say it...
...Stipulate for a second that a presidential candidate with ties to such a character would prefer not to account for those ties...
...Here’s one context in which we can anticipate Obama will be something other than the candidate for “change...
...Can you measure “purpose...
...Simmons’s money...
...That this “disregard of federal law is motivated by [AIP’s] need for unlimited amounts of Mr...
...Knowing enough, in this context, means knowing about his ties to a Weather Underground activist turned college professor...
...Do the activities of its former incarnation count when assessing its present purpose...
...The smattering of court cases involving the major purpose test offer no defi nitive answer...
...Knowing and willful violations can be prosecuted criminally, less odious violations are pursued in civil enforcement...
...Then, the group would be required to register and report as a political committee, could take no more than $5,000 per year from any one donor, and couldn’t take any money from corporations or unions...
...Harold Simmons undeniably has the right to spend his own money on a campaign ad berating Barack Obama...
...You might argue that new name equals new group...
...Or you might look at how it depicts its purpose in advertising and solicitations...
...And what does it say about the Obama campaign’s lawyering priorities that it is so eager to make a moral crusade and pathbreaking political prosecution out of campaign fi nance hyperformalism...
...If an incorporated group was formed to promote political ideas, had no shareholders, and took no corporate or labor funding, the Court concluded that the corporate spending ban could not constitutionally apply...
...The AIP spot, shot in dark tones with ominous music, asks viewers whether they “know enough” to elect Barack Obama president...
...Well...
...Does this make sense...
...Capitol, the Pentagon, police stations, banks, and courthouses, not to mention in their own Greenwich Village townhouse, killing three and injuring two members...
...Justice William Brennan, writing for the Supreme Court in 1986’s Mass achusetts Citizens for Life, articulated an exception to the corporate spending ban...
...Never is that more true than in the funding of campaign speech...
...By the way, AIP has fi led FEC reports documenting the source of funding for the expenditures, so nobody can complain about theirs being a shadowy enterprise...
...But when the question is as bereft of clear standards as this one, how could that be...
...The billionaire, Harold Simmons, is number 136 on the Forbes 400 ranking of the super rich, with a net worth of $6.9 billion...
...You might measure its purpose by how much it spends (this is what the IRS does) during some period of time...
...Major purpose” has been a factor in some FEC enforcement matters, but these carry no precedential power...
...Obama’s lead attorney has written the criminal division of the Department of Justice, demanding prosecution for “blatant” violations of the law...
...AIP is a new name for an older tax-exempt group...
...How can it be that the distinction between laudable and criminal rests in fi ling the right paper...
...Must campaign activity be the “major purpose” or must it register if that activity is a “major purpose...
...No, he was instead a leading man of the left during the sixties, whose group, among other exploits, set off bombs at the U.S...
...To buttress Obama’s criminal complaint, his counsel contends not only that Simmons has done something illegal, but has been knowing and willful in breaking the law...
...The FEC has attempted several times to write a “major purpose” rule, but has never produced language that would satisfy a majority on the commission...
...This must be the blatant violation, you say...
...Is it the case, as the Obama complaint contends, that “facts have come to light that underscore the patently illegal nature of AIP’s formation and operation...
...Obama’s aggressive reaction will also no doubt give his other critics reason to pause before launching their own messages...
...As former Vice President Gore might observe, there is no controlling legal authority...
...Harold Simmons qua Harold Simmons could produce an ad and buy television time, spending his own money...
...Or you might argue that the name change is immaterial...
Vol. 13 • September 2008 • No. 48
