The Magazine

Shut Up, They Explained

The Obama campaign tries to suppress an ad.

Sep 8, 2008, Vol. 13, No. 48 • By ALLISON R. HAYWARD
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You might measure its purpose by how much it spends (this is what the IRS does) during some period of time. Or you might look at how it depicts its purpose in advertising and solicitations. Must campaign activity be the "major purpose" or must it register if that activity is a "major purpose"?

By the way, AIP has filed FEC reports documenting the source of funding for the expenditures, so nobody can complain about theirs being a shadowy enterprise.

The smattering of court cases involving the major purpose test offer no definitive answer. 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. "Major purpose" has been a factor in some FEC enforcement matters, but these carry no precedential power. As former Vice President Gore might observe, there is no controlling legal authority. 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. (Knowing and willful violations can be prosecuted criminally, less odious violations are pursued in civil enforcement.) But when the question is as bereft of clear standards as this one, how could that be?

Harold Simmons undeniably has the right to spend his own money on a campaign ad berating Barack Obama. But that right buckles under the weight of campaign finance regulation as soon as Simmons sponsors a group effort. Does this make sense? How can it be that the distinction between laudable and criminal rests in filing the right paper?

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 finance hyperformalism? Heads explode at the DNC at the mention of Alberto Gonzales or Monica Goodling for their alleged politicization of the Bush Justice Department. Well? Here's one context in which we can anticipate Obama will be something other than the candidate for "change."

Allison R. Hayward is assistant professor of law at George Mason University School of Law.