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Experts: Obama-Ayers Ad May Be Illegal


First Posted: 08-21-08 07:12 PM   |   Updated: 09-21-08 05:12 AM

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UPDATED BELOW

A new ad raising Barack Obama's ties to 60s-era radical William Ayers may violate election law, according to campaign finance experts interviewed by the Huffington Post.

The spot, released by the America Issues Project (an incorporated 501c(4) committee, according to a report by Politico's Ben Smith), intersperses images of Obama and Ayers, and features a narrator asking, "Why would Barack Obama be friends with someone who bombed the Capitol and is proud of it? Do you know enough to elect Barack Obama?"

"This negative campaign ad is clearly express advocacy, and under a federal law passed in 2003, the Bi-Partisan Campaign Reform Act (known colloquially as McCain-Feingold), it cannot legally be paid for with corporate money, including those of a non-profit," said Laura MacCleery, deputy director of the democracy program at the Brennan Center for Justice. "The ad indisputably concerns an election, takes a position on the character and fitness for office of a candidate, and raises no legislative issue. Even this highly skeptical Supreme Court would turn up its noses at the foul odor emitted by this clear abuse of federal election law."

For its part, a Fox News representative told the Associated Press that the network had rejected the spot.

The zone of jurisprudence occupied by the ad is undoubtedly a complex one -- intersecting with both tax law as well as state regulations and federal election law. But the spot could certainly fall afoul of the "express advocacy" prohibition that flows from recent Supreme Court campaign finance decisions, including the recent FEC v. Wisconsin Right To Life case. At a minimum, the nature of the committee's funding -- whether it comes from corporations or individuals -- could be a matter for the FEC to probe.

MacCleery noted that in FEC v. WRTL, the Roberts-led Supreme Court wrote that an independent expenditure ad is "the functional equivalent of express advocacy" when it is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

Furthermore, in describing the types of ads that could avoid normal disclosure requirements, the court laid out several other standards for non-disclosure:

"The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy. The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate's character, qualifications, or fitness for office."

The Ayers ad mentions Obama's name, uses the word "elect" (in the form of a question), and mentions not a single legislative issue, and quite obviously takes a position on his character and fitness for office. Thus, if an incorporated 501c(4) produced the ad and paid for its broadcast with corporate funds, it should be filing FEC disclosure reports.

For its part, the Obama campaign notes that a former McCain aide is now leading the group, and is suggesting an illegal coordination between an independent group and the Arizonan's campaign. But while the evidence for that claim is circumstantial (and refuted by McCain), the notion of whether the independent group's fundraising and activity are legal is another matter entirely. While the group might claim to be what's referred to as an MCFL-501c(4), which would not prevent their broadcasting the ad, it's not clear that the group could avoid disclosing its donor rolls, either.

The only problem, from Obama's point of view, is that the wheels of justice on FEC matters grind slowly. Former FEC lawyer Larry Noble agreed that while this ad would make "an excellent case" for any aggrieved party to bring, the FEC would likely be powerless to get to the bottom of the issue until after the election.

"Clearly there's a question of whether it's reportable as election communication," Noble said. "Beyond that, there's a question about how it's funded, if it's corporately funded. ... But the FEC doesn't have the ability to immediately go into court as a practical matter."

The America Issues Project did not immediately return phone calls or emails from multiple Huffington Post reporters regarding the nature of its 501c(4) status or its stance on FEC electioneering rules. Broadcast commercials that mention a federal candidate's name during certain time periods are considered electioneering. One of the time periods is 30 days before the party conventions, which encompasses the time this ad is running.

From the FEC's website:

Electioneering Communications

An electioneering communication is any broadcast, cable or satellite communication that fulfills each of the following conditions:

1. The communication refers to a clearly identified candidate for federal office;
2. The communication is publicly distributed shortly before an election for the office that candidate is seeking; and
3. The communication is targeted to the relevant electorate (U.S. House and Senate candidates only).

Clearly Identified Candidate

A communication refers to a clearly identified federal candidate if it contains the candidate's name, nickname or image, or makes any unambiguous reference to the person or their status as a candidate, such as "the Democratic candidate for Senate." 11 CFR 100.29(b)(2).

Publicly Distributed Shortly Before Election

Generally, a communication is publicly distributed if it is disseminated for a fee by a television station, radio station, cable television system or satellite system. 11 CFR 100.29(b)(3)(i). Electioneering communications are limited to paid programming. The station is not required to seek or receive payment for distribution of the communication to qualify. Therefore, public service announcements, infomercials and commercials are all included within the definition.

The electioneering communications rules apply only to communications that are transmitted within 60 days prior to a general election or 30 days prior to a primary election for the federal office sought by the candidate, including elections in which the candidate is unopposed. A "primary election" includes any caucus or convention of a political party which has the authority to nominate a candidate to federal office. 11 CFR 100.29(a)(2). This condition regarding the timing of the communication applies only to elections in which the candidate referred to is seeking office.

LATE UPDATE: In response to a detailed series of questions related to electioneering and FEC filing status, the American Issues Project issued a terse email reply to the Huffington Post.

"Yes sir. We filed with FEC," wrote spokesperson Christian Pinkston.

As of Thursday night, there was no filing for the group on the FEC's website (which can take some time to reflect newly received reports). Still unclear is the extent of the independent group's disclosure -- specifically, whether it will simply reveal the aggregate receipts and expenditures, or whether it will reveal individual donors for the $2.8 million ad buy.

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