Attacking political speech

A campaign finance "watchdog" outfit last week filed a complaint with the Federal Elections Commission against two groups — one pro-Republican and the other pro-Democrat — alleging they violated the law by airing political ads during the current presidential campaign.

Democracy 21 wants the FEC to investigate the American Issues Project, which ran a $2.8 million general-election ad campaign against Democratic presidential nominee Barack Obama, and the American Leadership Project, a group that backed Sen. Hillary Rodham Clinton in the Democratic primaries and ran about $4.3 million in ads supporting her against Obama.

The complaint argues that both groups violated the law by not submitting for registration as political action committees, which would have restricted their fund-raising to capped donations. The American Leadership Project was largely financed by unions that supported Clinton. The American Issues Project ad against Obama was funded by Texas billionaire Harold Simmons, a McCain fundraiser.

The American Issues Project is a nonprofit 501(c)4 organization. It ran August ads in Michigan and Ohio linking Obama to William Ayers, a Vietnam-era militant who helped found the violent Weather Underground, who is unrepentant about bombing the Pentagon in those days, and who helped Barack Obama launch his presidential campaign. Fred Wertheimer, the president of Democracy 21, also wrote to the Internal Revenue Service, asking the IRS to examine whether the group violated its nonprofit status.

The tax laws — and to a lesser extent the FEC regulations — holding who can operate as a "non-profit" group and what level of political activity they can fund under that rubric are complex. Any ruling is likely to hinge on the complexities of the tax code — which means any ruling is likely to end up in court, after this election is a fading memory, since the FEC commissioners are not noted for their expertise in tax law.

Just once, though, wouldn’t it be refreshing to see someone in a position of authority in this country cut through such piles of pleadings with the directness of Alexander at Gordium?

Supposedly in response to an oracle predicting the man who untied the intricate Gordian knot would conquer all Asia, the Macedonian commander simply sliced the thing in half with his sword.

A parallel ruling on the question at issue would simply hold: "1) If the law does not restrict such advertising, the case is dismissed. On the other hand, 2) If the law does restrict such advertising (that being the only other possible finding), then since freedom of speech is enshrined in the Bill of Rights, and since fact-based political speech criticizing a politician or candidate during an election year is arguably the form of free speech most vital to the safety of the republic, the law in question is obviously unconstitutional and therefore both this case and the law itself are hereby thrown out and declared null and void."

Some will hold neither the FEC commissioners nor any court lower than the Supreme Court could rule on the constitutionality of these sections of the IRS code. But that’s clearly wrong.

Every federal official swears an oath to protect and defend the Constitution. If they’re unable to determine what that means, they’re honor bound to refuse to swear the oath.

The oath does not compel them to protect and defend the Constitution "but only after I wait for the Supreme Court to get around to telling me how."

If a misguided Legislature enacted a law requiring that members of some specific race or faith be shot on sight, there is not a judge or commissioner in the country (we firmly hope) who would say, "Oh well, it’s the law, so let’s get to it. I surely hope this matter reaches the Supreme Court before they’re all dead."

No. They would declare such an edict unconstitutional on sight.

As they should do, here.

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