Hayward in Weekly Standard: Bereft of Clear Standards

Beneath charges by the Obama campaign that the American Issues Project (AIP) formation and actions are illegal lie "unanswered legal questions that make law professors swoon and candidates curse," says Professor Allison Hayward, writing in The Weekly Standard.

Hayward's article looks at the question of whether billionaire Harold Simmons' contributions of roughly $2.9 million to AIP for production and airtime of ads critical of Barack Obama could be construed as illegal under existing campaign finance laws, as claimed by the Obama camp.

Complicating the issue, says Hayward, is the lack of definitive answers in the court cases that have involved the major purpose rule.

Shut Up, They Explained; The Obama campaign tries to suppress an ad, The Weekly Standard, September 8, 2008. By Allison R. Hayward.

"AIP declares that it was formed to promote political ideas, but that campaign advocacy is not its major purpose. Can you measure 'purpose'?

"AIP is a new name for an older tax-exempt group. Do the activities of its former incarnation count when assessing its present purpose? You might argue that the new name equals a new group. Or you might argue that the name change is immaterial.

"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 the 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?"

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