Near the end of the 2000 political season, the National Association for the Advancement of Colored People ran a controversial advertisement implying that George W. Bush was responsible for the murder of James Byrd. The ads features Byrd’s daughter, Renee Mullins, doing a voice over saying that after seeing Bush oppose hate crime laws, “It was like my father was killed all over again.”
Conservatives were outraged by the ad, they need not worry much longer, because ultra-liberal Democratic Sen. Paul Wellstone (Minnesota) has a solution — he wants to make that ad illegal.
The NAACP, like many such organizations, is incorporated as a nonprofit under IRS rules that forbid it from doing partisan political advocacy; if the NAACP itself had aired the ad, its tax exempt status could be jeopardized. To get around this limitation the NAACP exploited a “loophole” and created The NAACP Voter Fund. The Voter Fund is incorporated as a 501(c)(4) nonprofit. A 501(c)(4) nonprofit is defined by the IRS as a nonprofit that is devoted to some sort of social welfare issue. Such organizations can’t endorse candidates without risking their tax exempt status, but they can run the sort of issue ads that the NAACP ran directed at Bush.
For Wellstone and other extremist supporters of campaign finance reform, allowing the NAACP to take out such ads is an intolerable loophole in the law. As such Wellstone recently introduced an amendment to the campaign finance reform bill currently under consideration by the Senate which would forbid 501(c)(4) organizations from taking out any sort of ads within 60 days of a primary election.
Several opponents of any campaign finance reform, namely Republican Mitch McConnell, have actually signed on as supporters of Wellstone’s bill. Why? Because it is clearly an unconstitutional restriction of free speech, and there’s a good chance opponents of campaign finance reform will succeed in crafting any resulting bill in such a way that the Supreme Court will have to strike down the entire law rather than pick and choose to strike down just Wellstone’s amendment.
Wellstone, for his part, offers only the most pathetic of defenses in favor of his amendment. Despite the clear language from the Supreme Court on this matter, Wellstone thinks his amendment would survive legal challenge. And what about those NAACP ads? Don’t worry, Wellstone says, the Federal Elections Commission will be able to tell the good ads from the bad ads,
A comprehensive study conducted by the Brennan Center of ads run during the 1998 election found that only 2 genuine issue ads — out of the hundreds run — would have been inappropriately defined as a sham issue ad. Finally, in the event of constitutional problems, the Wellstone amendment is fully severable.
Hmmm. A sham issue ad, of course, is where the nonprofit claims to be just promoting an issue but, in fact, is really endorsing a candidate. Was the NAACP ad a sham issue ad? I would hazard a guess that it probably was. Moreover regardless of whether you think it was or not, the additional reporting costs and lawyers fees necessary to defend every advertisement would put everything back to square one — groups with large financial resources would still be in the game while the genuine grassroots efforts would get pushed out of the process entirely (Jesse Helmes once cleverly used the FEC to go after an ACT UP chapter that made the mistake of attacking him in a radio interview — few genuinely small groups can afford the risk of a protracted dispute with the FEC).
On Wellstone’s Senate web site there is some delightful Orwellian language with his office saying that these provisions are only fair,
Wellstone points out that limiting the issue ad ban just to corporations and labor will invite a shift in spending to non-profit groups in future elections, suggesting that in future years — even if this bill should pass — Congress will be forced to revisit sham issue ad regulation to close yet another loophole in federal election law.
Liberals used to trumpet this saying that the best response to speech with which they disagreed was simply more speech. Wellstone and others seem to have reversed this and decided that the less speech the better. It’s more than a bit weird to see a Democrat supporting efforts to outright ban political advertisements by labor unions. I guess they think that’s a small price to pay for an outright ban on corporate ads, but it seems like one immense Faustian bargain.
Hopefully the Supreme Court will still manage to save the soul of the country by invoking the ultimate loophole to this whole process, the First Amendment.
Wellstone Pushes to Close Sham Issue Ad Loophole In McCain-Feingold Campaign Finance Reform Bill. Paul Wellstone, Press Release, March 26, 2001