See the Anti-Obama Ad That Was Banned in Washington (Maybe)!

Jacob Sullum | August 27, 2008

Texas billionaire Harold Simmons, who helped fund the Swift Boat Veterans for Truth in 2004, this year is backing the American Issues Project (AIP), whose main effort so far is an ad attacking Barack Obama for his association with former Weatherman Bill Ayers. Obama's supporters are so mad about the ad that they want to punish him for it, and they expect the Justice Department to help.

In an August 21 letter to Deputy Assistant Attorney General John Keeney, Obama campaign attorney Bob Bauer argues that Simmons is breaking federal campaign law by failing to register AIP as a political committee and by giving it too much money (about $3 million so far). He says the ad, which asks, "Do you know enough to elect Barack Obama?," clearly qualifies as "express advocacy." He avers that the group, which says it champions "conservative values" such as "smaller government, a strong and ready national defense, lower taxes, and a government that encourages entrepreneurship and new job creation," has no known activities other than running anti-Obama ads and no purpose other than influencing elections. He sent Keeney a second letter on Monday, supplying additional details about AIP, describing the group as "patently illegal," and accusing Simmons of a "willful violation of law."

Election law expert Rick Hasen analyzes AIP's defense, which hinges on whether it qualifies for an exemption to the political committee rules that the Supreme Court carved out in a 1986 decision. Hasen is skeptical that it does, adding, "The group, and perhaps Simmons, could face fines, but by then the election would be over."

So which is the real outrage: that Simmons will get away with it, at worst paying a fine he can easily afford, or that the offense of which he is accused amounts to exercising his First Amendment rights in a manner that offends people in power?

Back when Simmons was casting aspersions on John Kerry's military career, I noted that Democrats and Republicans are equally happy to use election law as a gag to silence people who annoy them. In December I cheered SpeechNow's efforts to eliminate restrictions on express advocacy by independent groups that eschew donations from labor unions and corporations. 

[Thanks to John Kluge for the tip.]

Comments

SIV|8.27.08 @ 6:50PM|#

as Bill Ayers wife sez:
"Dig It! First they killed those pigs, then they ate dinner in the same room with them, they even shoved a fork into a victim's stomach! Wild!" In appreciation, her Weather Underground cell made a threefingered "fork" gesture its official salute.

Stick a fork in the Obama campaign, he is done.

|8.27.08 @ 6:57PM|#

Look SIV ran his own lil' anti-Obama ad!

|8.27.08 @ 7:04PM|#

Annoy ?
How about lie outright and imply Obama is a terrorist ?

I understand your concerns about the 1st amendment but to assume everything a politician does is about "power" is a little simplistic.
Could it be that Obama does not want to be falsely called a terrorist ?
Gee. I can't figure out why. What a sissy.

SIV|8.27.08 @ 7:05PM|#

First they came for the Right Wing Texas billionaires and I'm speaking up even though I'm not from Texas or a billionaire.....

drew|8.27.08 @ 7:05PM|#

Blah blah blah, shouldn't we be thinking of the kids?
What about the kids?

Swift Boat|8.27.08 @ 7:07PM|#

Benjamin,

Perhaps, in the future, they'll call attacks like this "Weather Undergrounding...

I can only hope....

|8.27.08 @ 7:09PM|#

I've always wondered, why don't more pols sue on defamation grounds folks who make claims that could be demonstrably shown to be false and made with a reckless disregard of such to a majority of a jury?

For that matter, what's the libertarian take on defamation law? Good thing, or blatant socialism/authoritarianism?

|8.27.08 @ 7:10PM|#

Harold Simmons is not "backing" a group called the American Issues Project.

Harold Simmons created the name "American Issues Project" for the purpose of running these ads. There is no such group; this is Simmons spending his money. I don't know he made up a group; nor do I know why Sullum wrote up the story so misleadingly.

Probably for the same reason he threw in the meaningless phrase "in a way that offends people in power" - because vagueness is your friend when you're trying to create a false impression.

|8.27.08 @ 7:11PM|#

blah blah blah, shouldn't we think of the billionaires?

What about the billionaires?

Dave B.|8.27.08 @ 7:12PM|#

Could it be that Obama does not want to be falsely called a terrorist ?

They're not saying that the ad is illegal because it makes false claims, they're saying that the ad is illegal because it makes claims that cast Obama in a negative light.

|8.27.08 @ 7:15PM|#

Has Bill Ayers ever been demonstrably linked to the Capitol bombing? I thought the deal was that his groupd certainly did it, that he later wrote he took part in his book but then also said that the book was fictional in parts?

Anyways, the tie to Obama demonstrated in the ad, that
1. Obama launched his career in the same city as Ayers lived and
2. Obama and Ayers served on a (left wing no less!) board

strikes me as pretty bad logic to base the conclusion "friends" on...

|8.27.08 @ 7:16PM|#

SIV hasn't been this excited since Obama was going to be driven out the race in March.

Abhishek Saha|8.27.08 @ 7:17PM|#

I posted on this topic yesterday.

To those who invoke defamation law, this ad does not qualify, plain and simple. It does not make any demonstrably false statements. Nowhere does the ad call Obama a terrorist but merely notes his association to radicals.

I agree that the ad is nasty and misleading. However, free speech means we should put up with it. As someone who is supporting Obama as the lesser evil, I am highly diappointed at the strategy they have taken in response to this ad.

|8.27.08 @ 7:18PM|#

Perhaps its personal with McCain and Ayers. Did any of Ayers' bombs damage, say, a house owned by John McCain? Given even McCain himself does not know which houses are his and which are not he may be operating on the premise that this is very possible and therefore takes it personally...

SIV|8.27.08 @ 7:19PM|#

joe,

It is DemocRAT Party Convention Week. I always enjoy that!

SIV|8.27.08 @ 7:22PM|#

Why shouldn't Harold Simmons exercise his First Amendment rights? He shouldn't be silenced by Barack Obama using a law authored by our next President John McCain.

Other Matt|8.27.08 @ 7:43PM|#

As someone who is supporting Obama as the lesser evil

What a cop out.

Stand up and be proud of your support if that's what you want to do. joe's a complete fuckwit, but you have to give him points for being a dedicated fuckwit despite all manner of reason and logic to the contrary being shoved in his face. However, this kind of lukewarm qualification is ridiculous, either embrace the man or do something different, but don't try this half assed BS of "as the lesser evil."

Say you want to vote for Obama because you believe that socialism is a good thing and you really don't need that cash from your paycheck. Say you want to vote for McCain because you believe that authoritarian values are good, and you like a little more leftovers from your paycheck than the Obama guy. Say you want to vote for McKinney because she'd be an absolute hoot if she happened to bump into Putin in some state dinner someplace. Say you want to vote for Barr because of your personal values. It doesn't matter, but don't be such a wimp as to try to qualify your vote for someone you believe to be a disaster by calling it the "lesser evil."

Personally I believe Obama is much more capable of evil than McCain, simply because he has yet to define anything, and people view him as the second coming as they project their own feelings into that void. That's dangerous, it gives him license to do anything and the media is scrambling all over to accord him any means necessary to qualify his positions. If you want the lesser evil than McCain is by far the better choice as he'll be hampered by a congress of Dems with their soiled panties in a bunch for losing again, and therefore we'd be pretty much gaurenteed four years of gridlock to let society sort it out for real. Obama being elected will result in a bunch of joelike fuckwits overcome with joy passing all kinds of stupid shit which we'll spend the next forty or fifty years having to recover from. Again, McCain=Gridlock, Obama=Costly, unworkable, ill defined stupid shit, combined with kool aid drinking masses. Which has the higher potential for evil?

In either case, go vote for someone and be proud of it, don't try to position yourself to deny your vote later when Obama turns out to be what anyone with a brain can see coming.

As for Simmons, let the man say what he wants. There are enough outlets for someone to call Bullshit on him without having to resort to running to mommy saying he hurt your feelings. He's preaching to people who are already on his side anyway, so unlike the somewhat substantive questions raised about Kerry, right or wrong, this is just an inference smear. It's actually much less of an affront than what Obama did to Ferraro in terms of "truth in statements" when she made the rather tame comment that he wouldn't be getting the attention he was if he wasn't black.

DannyK|8.27.08 @ 7:50PM|#

I'm just frustrated that the Democrats don't seem to have any libelous billionaires on their side. Why do the Republicans have all the fun?

Abhishek Saha|8.27.08 @ 7:53PM|#

Other Matt -- You are entitled to your opinion about Obama being more dangerous, I am am entitled to mine. Reasonable people can differ on the issue of which candidate is more libertarian.

However, you cross the line when you tell me how strongly I should feel about my support. In future, please keep such opinions to yourself. It reveals you as an immature troll.

George Soros|8.27.08 @ 7:54PM|#

I'm just frustrated that the Democrats don't seem to have any libelous billionaires on their side. Why do the Republicans have all the fun?

What am I? Chopped liver?

|8.27.08 @ 7:54PM|#

The guy with all the blood on his hands has the higher capacity for evil.

Duh.

|8.27.08 @ 7:56PM|#

You know, Barack Obama knows a guy who used to know people who killed a guy.

How many people do you think have died because of John McCain?

How do you go divvying up the body count from Iraq among the people who fought so strenuously to make it happen?

|8.27.08 @ 7:57PM|#

What's the libertarian take on free speech? Allow it! Oh, and also allow slander, libel and defamation lawsuits in retaliation. Of course, it isn't Obama suing over this ad, it's a bunch of his speech-hating supporters. In a libertarian world they wouldn't have grounds to sue.

|8.27.08 @ 8:04PM|#

What should we do? I know, go to court. This is clearly a violation...oh, we already did that.
Repeat; Only one solution, THE LIBERTARIAN MILITIA.
We have to fertialize the tree of liberty.

|8.27.08 @ 9:09PM|#

joe, as a proper liberal you'd think you'd want to straighten your candidate out about threatening free expression.

|8.27.08 @ 9:10PM|#

Brandybuck
I asked what is the libertarian position on defamation as a course of action. I guess your second sentence answers that from your point of view.

You know of course that defamation suits certainly keep many people from speaking what they may want to speak, abridging their liberty in that respect. That's why I asked what libertarians think about it.

I can see both sides of the defamation issue (that on the one hand it could restrict speech but on the other hand a person's "reputation" might be seen as one's property that a person cannot willfully damage without paying).

On this specific issue it's clear that the Obama people are just insisting on the other side playing by the rules as they are currently set up. Though you may be right that the rles stink it's hardly controversial to insist your opponent play by them...

|8.27.08 @ 9:15PM|#

MNG, here is the text of the ad:

Narrator: "Beyond the speeches, how much do you know about Barack Obama?
What does he really believe?

Consider this: United 93 never hit the Capitol on 9/11.
But the Capitol was bombed thirty years before -

By an American terrorist group called Weather Underground that declared 'war' on the U.S. -
Targeting the Capitol, the Pentagon, police stations and more.

One of the group's leaders, William Ayers, admits to the bombings, proudly saying later:
'We didn't do enough.'

Some members of the group Ayers founded even went on to kill police.

But Barack Obama is friends with Ayers, defending him as, quote, 'Respectable' and 'Mainstream.'

Obama's political career was launched in Ayers' home. And the two served together on a left-wing board.

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?
American Issues Project is responsible for the content of this ad."

Do you see anything defamatory in there?

Remember that defamation = In law, defamation (also called calumny, libel, slander, and vilification) is the communication of a statement that makes a false claim, expressly stated or implied to be factual

I only see facts and questions here; nothing false.

So you tell me.

Michael|8.27.08 @ 9:25PM|#

I'm in Other Matt's camp in regards to people that claim they're voting for the "lesser of two evils". Either grow some balls (or ovaries) and be honest about your support for a candidate or don't vote at all. Nobody is driving you to the ballots at gunpoint.

NoMoreMrNiceGuy|8.27.08 @ 9:49PM|#

Anyone think that it is more than a little odd that political speech is more heavily regulated than pornography
though the purpose of the First Amendment is to preserve political freedom and prevent the regulation of speech from occurring in the first place?

Fluffy|8.27.08 @ 10:20PM|#

You know, Barack Obama knows a guy who used to know people who killed a guy.

How many people do you think have died because of John McCain?

You know, joe, this is the proper response to an ad that talks about Obama's extremely tenuous link to Ayers.

Not that other "Wah wah wah astroturf! Wah wahh wahh Jacob's perfectly clear turn of phrase has no meaning to me when I stick my fingers in my ears! Wah Wahh Wahh!" whining bullshit you did in your other post.

The bottom line is that Obama's campaign did not contest the ad on its truth grounds nor did they call it libel. The substance of their complaint is "This guy shouldn't be allowed to run a political ad because he didn't fill out the right forms!" The Obama campaign can go fuck itself then, and I hope this guy runs the ad over and over and leaves the Obama attorney voicemails taunting and laughing.

BTW if it's really just a one-man astroturf organization, the Obama campaign's point is moot. He could just have paid for the ads as an individual and nobody could say fucking shit about it and the FEC would have no say. So the Obama campaign's complaint is made even more trivial if this is a one-man shop, and not less.

Fluffy|8.27.08 @ 10:23PM|#

BTW, the one thing false in the ad is when they call the Weathermen a terrorist organization.

A group that attacks government installations is insurrectionist, not terrorist. To be a terrorist you have to attack non-state private property and persons.

It's funny that the party that defends gun ownership in part on the grounds that the public needs to be armed for potential resistance to the state doesn't realize that if that's true, you have to expect that once in a while members of that armed public will, in fact, resist the state.

NoMoreMrNiceGuy |8.27.08 @ 10:24PM|#

Oh, Mr Nice guy, that's for putting that awful Alice Cooper song in my head every time I see your name.

|8.27.08 @ 10:38PM|#

"How many people do you think have died because of John McCain?

How do you go divvying up the body count from Iraq among the people who fought so strenuously to make it happen?"

You mean like Joe Biden? Or maybe it is because McCain voted for the Patriot Act. Oh Joe Biden did that to and the FISA reform and supported the Surge and wanted to have US troops divide the country. If any one in the Democratic Party actually beleived anything they say, they would never have put someone who was pro war on the ticket. That 'blood on their hands" is all just bullshit and you know it.

Fluffy you are right, that is the proper if bullshit response. The response shouldn't be "we will prosecute you after we win". Is there any doubt that an Obama DOJ will be going after any group they don't like after the election?

|8.27.08 @ 10:40PM|#

NMMNG-The people who support the regulation of campaign speech think they ARE preserving political freedom by preventing rich guys from dumping millions and millions into political advertising. The syllogism looks like this:
1. Advertising=power
2. Rich guys can dominate advertising
3. Therefore rich guys can dominate advertising

TAO-My question was generated by the many pols who take umbrage at an ad or comment by their opponent that they then claim was "willfully false" not so much by this ad. Though if I were Obama's lawyer I'd say that the implication of the ad that Obama is close friends with a terrorist would be the source of my case (not saying I'd win, btw-defamation does not just involve blatant statements of fact, but implications that can be pled to create, given known circumstances, a defamatory effect).

fluffy-You don't respect the FEC laws so of course to you its just someone whining over the "forms" that were filled out. But how a group registers with those forms controls how they can act under the rules and the Obama complaint is that this group registered one way and acted another. Again, of course in a contest with given rules one side is going to insist that the other side is held to the rules. That's hardly remarkable...

|8.28.08 @ 12:01AM|#

2. Rich guys can dominate advertising
3. Therefore rich guys can dominate advertising


Well its hard to argue with that part of the syllogism.

NMMNG|8.28.08 @ 12:09AM|#

so, the answer to a problem that you identify here, of rich guys being able to dominate the air waves, is to make sure that there are plenty of patronage jobs in the Federal beuracracy that oversee the regulation of speech that the two parties can dole out on the tax payer's dime? Given, this has been the approach to the problem you identify since at least the '74 reformist agenda congress got busy on this matter, how much
money from rich guys been prevented from actually going on the air waves?

NMMNG|8.28.08 @ 12:15AM|#

mangled in edit:

how much
money from rich guys been prevented from actually going on the air waves?

how much money from rich guys has been prevented from actually being used to fund their messages on the air waves?

BDB|8.28.08 @ 12:16AM|#

I find SIV's little quote more hilarious than scary. Seriously, who talks like that anymore?

|8.28.08 @ 1:23AM|#

BDB: The scary part is imagining "education reform" by people who thought like that back then, and even now don't seem to really understand how wrong they were.

|8.28.08 @ 5:17AM|#

joe, I know you're trying hard to stick with Obama's energy policy by keeping your tires well-inflated, but putting your lips on the valve and blowing is just making you dizzy. Use the pump at the gas station.

Any law that limits freedom of expression beyond sanctioning slander, libel & treason are evil. Granted that McCain wrote one of those laws, I find the Obama campaign's willingness to bring the government in on this just as odious. Not exactly "new" politics we're seeing here.

|8.28.08 @ 9:08AM|#

This whole thread reminds me of the Rock 'Em Sock 'Em Robots.

Nothing like a debate over which group of sleazy bastards is the more ethical. Campaign finance laws are largely unconstitutional (regardless of what the Supreme Court says) and mostly a very bad idea.

Comic Book Guy|8.28.08 @ 10:58AM|#

Abhishek Saha,

the lesser evil

WORST VOTING STRATEGY...EVER!

robc|8.28.08 @ 11:01AM|#

Comic Book Guy failed to point out the failure in the english language too. "lesser" implies exactly two choices. AFAIK, there will be no state with only two candidates on the ballot. "least" was the proper word. Im also pretty sure Obama wont be the "least evil" candidate on my ballot. Cynthia McKinney might be, due to incompetence.

|8.28.08 @ 12:02PM|#

This is hardball.

People who made or run these ads and have business with the government had better make sure they are squeeky clean because payback is a bitch.

|8.28.08 @ 12:13PM|#

So which is the real outrage: that Simmons will get away with it, at worst paying a fine he can easily afford,

No.

or that the offense of which he is accused amounts to exercising his First Amendment rights in a manner that offends people in power?

Fucking A right. IMRO, the entire NcCain-Feingold Campaign Reform Free Speech Nullification Act is an unconstitutional affront to every American's right to express their opinion on the issues of the day.* SCOTUS screwed the pooch on this one.

* Elections obviously fall into that issues of the day category.

MAX HATS|8.28.08 @ 12:28PM|#

In a libertarian world they wouldn't have grounds to sue.

In a libertarian world there's no such thing as libel? What?

Salvius|8.28.08 @ 1:30PM|#

Anyone think that it is more than a little odd that political speech is more heavily regulated than pornography

Yes, and I think the response should be obvious:

Someone needs to start producing hardcore pornographic political advertisements.

bubba|8.28.08 @ 2:54PM|#

On one hand, I think the Campaign Finance laws are fundamentally wrong and unconstitutional.

On the other, I'm irritated that they are being violated on behalf of the douchebag who wrote them.

|8.28.08 @ 2:59PM|#

This focus on Ayers just makes me more convinced that the Baby-Boomers are, on the whole, the most disgustingly self-centered generation in history.

|8.28.08 @ 3:01PM|#

My thoughts:

1. If the Ayers/Obama relationship does indeed prove damaging to Obama, it will be because Ayers has never expressed any regrets, apologies or remorse for the actions the Weathermen engaged in all those years ago. If Ayers had done so before he and Obama served on the Annenberg education reform project, there'd be little chance of any political damage.

2. Do opposition research on yourself. Didn't anyone at Team Obama consider that Obama's association with Ayers might be political dynamite? If so, did they really think squelching the relationship is the best response?

If you act like you have something to hide, people will think you do, indeed, have something to hide.

3. The Obama/Ayers relationship is the result of the Democrats not only embracing the anti-war people from the 60's and 70's, but also embracing the Marxist radicals from that era who were at the forefront of the anti-war movement. Most folks from Main St. USA would want nothing to do with Ayers and his ilk. However, to most of the upper echelon of the Democratic Party, Ayers actions were unremarkable and he and those like him were just mis-guided. Make of that what you will, but in my opinion, this is one reason why Democrats have had little success in winning the White House over the last 40 years.

4. Academia has no problem in embracing violent left-wing radicals. Does anyone here believe that a right-winger with political violence in his past that was never renounced would be hired as a professor anywhere? No, me neither. Make of that what you will.

Carry on.....

Invisible Finger|8.28.08 @ 6:48PM|#

This whole Ayers thing pisses off Obama supporters so much that there must be something to it.