As Marc Ambinder reported last week, the conservative Judicial Confirmation Network is putting $1 million behind an ad that suggests Barack Obama's associations with Jeremiah Wright, William Ayers and Tony Rezko shed light on what Supreme Court Justices he might select as president.
The ad hit national cable Monday, and as of that time, none of the group's donors had been disclosed on the FEC's website.
A spokesperson for the Judicial Confirmation Network reached by phone on Monday said he could not answer how the ad had been paid for, or whether the group would be filing disclosure reports with the FEC. (The spokesman offered to put the Huffington Post in touch with the group's legal experts, but has thus far not delivered on that.)
But, as has been noted previously, Judicial Confirmation Watch is not a 527 group -- the most common kind of independent entity -- but rather a 501(c)4 nonprofit group. As the Huffington Post has reported, the rules for ads run by 501(c)4 entities are more constrictive.
At minimum, such groups are required to disclose sources of funding for "express advocacy" or "electioneering" ads, in order to ensure that any ad is not paid for with corporate treasury funds, as well as to prove money spent on the electioneering activity does not comprise more than half of a 501(c)4 nonprofit's budget for the calendar year.
Watch the ad:
This election season has already seen one short-lived 501(c)4 organization unloading an anti-Obama electioneering ad before going dark. The American Issues Project used money from a Dallas billionaire (and McCain bundler) to put another Ayers-related ad on the air.
There appears to be little doubt that the Judicial Confirmation Network's ad falls under the umbrella of "express advocacy."
In 2006, the Roberts-led Supreme Court described how independent ads could avoid being interpreted as express advocacy, in the FEC v. Wisconsin Right to Life case:
"First, their content is consistent with that of a genuine issue ad: They focus and take a position on a legislative issue and exhort the public to adopt that position and to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: They do not mention an election, candidacy, political party, or challenger; and they take no position on a candidate's character, qualifications, or fitness for office."
"Because the ad clearly questions the character and fitness for office of a Presidential candidate, it is express advocacy," said Laura MacCleery, deputy director of the democracy program at NYU's Brennan Center for Justice. "The question then is whether the group that made the ad is operating within the law, which does allow small tax-exempt c4 groups to do electioneering so long as that kind of activity is not its major purpose. Even it is not the group's major purpose, the organization should disclose the donors that paid for the ad."