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

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.]