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Monday, August 16, 2004

New ad from MoveOn PAC urges President to violate campaign finance laws

26 U.S.C.A. § 527(e)(5)(D) provides in pertinent part:

The term "qualified State or local political organization" shall not include any organization otherwise described in subparagraph (A) if a candidate for nomination or election to Federal elective public office or an individual who holds such office —

(i) controls or materially participates in the direction of the organization ....

I venture into this territory with considerable hesitation, for I'm neither a tax lawyer nor an expert in the recent campaign finance "reform" laws.  But I believe this to be the subsection of the Internal Revenue Code that would destroy the SwiftVets' status as a so-called "527 organization" if Dubya were to comply with the demand made at the conclusion of a new TV ad that apparently is about to be aired by a competing — and vastly better financed — 527 organization, MoveOn.org PAC. 

As reported in NRO's "The Corner" blog today by Byron York (boldface mine):

MoveOn.org's political action committee has released a new TV ad condemning the ad now being aired by the anti-Kerry group Swift Boat Veterans for Truth. The script of the MoveOn spot is as follows:


ANNOUNCER: George Bush used his father to get into the National Guard, and...


ANNOUNCER: ...when the chips were down, went missing.



ANNOUNCER: Now, he's allowing false advertising that attacks John Kerry...


ANNOUNCER: ...a man who asked to go to Viet Nam and who served with dignity and heroism.


ANNOUNCER: Here's what a true Republican war hero has to say about the anti-Kerry ad: "I think the ad is dishonest and dishonorable... I think the Bush campaign should specifically condemn the ad."

CUT TO SHOT OF BUSH AND CLOSING DISCLAIMER COPY. ANNOUNCER: George Bush: Take that ad off the air. MoveOn PAC is responsible for the content of this advertisement.

MoveOn says it has purchased air time for the ad to run for one week in each of the markets in which the original Swift Boat Veterans for Truth ad ran.

I haven't yet been able to find a reference to this ad on MoveOn.org's website nor the separate (but remarkably similar) website for its PAC, and Mr. York doesn't link to or describe his source, but I'm still looking.

In NRO's "Kerry Spot" blog, Jim Geraghty notes two logical problems with the ad:

First, this again shows the mockery of these "independent" groups, which are, without "coordination," is putting out exactly the advertising message the Kerry campaign and DNC need, exactly when they need it, using soft money.

Second, this logic of the ad is undone by its mandatory closing line, "MoveOn PAC is responsible for the content of this advertisement." Well, if MoveOn PAC is responsible for the commercial, and not, say, John Kerry, why is George W. Bush being held responsible for the Swift Boat Vets for Truth ad?

While I agree with both of Mr. Geraghty's points, I'm even more troubled that any major player in the American political scene — and certainly MoveOn.org qualifies as that, if for no other reason than its bankroll — would openly urge a sitting President to violate our nation's campaign finance laws, or find him at fault for refusing to do so. 

Were Dubya to demand that the SwiftVets pull their ad — a demand that I believe the SwiftVets would politely but firmly reject — then the President would certainly be guilty of at least attempting to be someone who "controls or materially participates in the direction of the organization" while both "a candidate for nomination or election to Federal elective public office [and] an individual who holds such office."  I don't know enough about campaign finance laws to know whether that would be a criminal act, or whether, if successful, it would have any effect other than blowing the SwiftVets' 527 status and thereby subjecting them to heavy taxation or penalties.  But I'm confident that, at a minimum, his doing so would be a subverting of the McCain-Feingold system.

President Bush having signed that legislation into law at the urging of groups like MoveOn.org, and the US Supreme Court having upheld at least this part of it (or so I understand) against constitutional challenges, it seems to me entirely possible that were he to comply with the MoveOn.org ad's demands, President Bush would be committing an impeachable offense and violating his oath to "preserve, protect, and defend" the Constitution and laws of the United States of America.

Not gonna happen.  Wouldn't be prudent.

In fact, President Bush has spoken out — not against any particular ad run by a 527 organization, but against all of them in general on grounds that such organizations constitute a huge loophole that subverts the intent of McCain-Feingold to dry up so-called "soft money" contributions.  That's a good use of the bully pulpit of the Presidency, and there he should and will stop.

As far as the political smarts of the MoveOn.org ad — were I at all confident that the SwiftVets could match MoveOn.org dollar for dollar, and were MoveOn.org to delete its exhortation for presidential lawlessness, I'd say, "Bring it on!"  Sen. McCain shot from the hip in his condemnation of the SwiftVets video, and finding himself highlighted in an anti-Bush ad might prompt him to reconsider his initial reactions as quoted here.  But more significantly, this ad is going to demolish — I suppose in what one could call an episode of "friendly fire" — the last remnants of the dikes keeping the mainstream media from looking at the SwiftVets' claims in detail.

Update (Mon Aug 16 @ 8:20pm):  USA Today reports that the ad is due to be released tomorrow (Tuesday).

Update (Tue Aug 17 @ 7:30pm):  Sincerely or not, Sen. Kerry — at the urging of his preferred running mate, Sen. McCain, has "denounced" the MoveOn PAC ad, but apparently, and quite appropriately, has not directed or demanded of MoveOn PAC that they pull it.  Color me skeptical, but I have to admit that it's good PR.

Posted by Beldar at 04:50 PM in Law (2006 & earlier), Politics (2006 & earlier), SwiftVets | Permalink


Other weblog posts, if any, whose authors have linked to New ad from MoveOn PAC urges President to violate campaign finance laws and sent a trackback ping are listed here:


(1) Zev Sero made the following comment | Aug 16, 2004 5:56:48 PM | Permalink

This is actually an example of a phenomenon I've noticed for years. Democrats do something wrong, and honestly assume that Republicans do the same; when they get caught they unashamedly say 'everyone does it', genuinely believing that to be true. They point to Republicans in situations where it is possible to break the law with little risk of getting caught, and say 'look, there's a Republican breaking the law'; they have no evidence that the Republican is actually doing anything wrong, but they assume that he must, because they would, and they can't imagine anyone not doing so.

I recall an example of this in the Congressional hearings into the Clinton/Gore financing scandal, with the foreign donations. The Democrats on the committee unearthed an episode where Haley Barbour had raised some money in Hong Kong for a youth outreach effort, which was perfectly legal, so long as none of this money found its way into campaign activities. The Democracts gleefully questioned Barbour about this, confident that he had in fact illegally used the money for campaign expenses, because that's what they would do in his shoes; when he said that he had done no such thing, and had in fact kept this money carefully separated from campaign money so as to comply with the law, they seemed literally incapable of understanding that answer. It's not that they accused him of lying—they simply didn't comprehend that he was denying having broken the law. The mere fact that he had the money proved that he had used it illegally, because, in their view, any normal person (i.e. themselves) would have done so.

The same thing applied when Clinton and his defenders tried to pretend that perjuring oneself in a civil trial and/or about sex is no big deal, that everyone does it, so it was unfair to blame him for doing it. It never seemed to occur to them that not everyone would lie under oath, even in such circumstances, and that yes, people do go to jail for perjury, even in civil cases, and even when the questions are on a sexual topic.

It's an open secret that MoveOn's campaign is in fact coordinated with Kerry's; they barely bother to conceal it. And they can't imagine that anyone in their situation wouldn't break this law, so they assume that Republican equivalents, such as SBVfT, must be secretly taking direction from the Bush campaign, and therefore if Bush told them to take their ad off the air they would do so, law or no law.

(2) Steven Jens made the following comment | Aug 16, 2004 9:13:25 PM | Permalink

The Kerry Spot does have permalinks, but they're a poorly-hidden secret (or, probably more accurately, a well-hidden non-secret).

The entry you mention is available here.

(3) Beldar made the following comment | Aug 17, 2004 3:57:03 AM | Permalink

Thanks, Steven! I shoulda thought to use the archived version for a permalink substitute; I've duly edited the text of this post and the link there, and will use the archived posts from "Kerry Spot" in the future!

(4) J Mann made the following comment | Aug 17, 2004 4:59:09 AM | Permalink

Beldar, I've been thinking the same thing about coordination. However:

1) John McCain has called on Bush to condemn the SwiftVet ads.

2) The Bush campaign hasn't said (AFAIK) that they can't comment on third party ads because of campaign finance reform, although it would be a perfect response.

Granted, neither point is enough to demonstrate that McCain-Feingold permits Bush to condemn the SwiftVet ad, but they're enough to give me pause . . .

(5) Beldar made the following comment | Aug 17, 2004 5:32:32 AM | Permalink

I respect Sen. McCain, but it does not speak particularly well for him in this instance that he apparently doesn't know the literal language of the legislation that bears his name.

To give him the benefit of the doubt, I suppose one could "condemn" the ad without simultaneously directing or demanding that it be withdrawn. But I tend to agree with the White House strategy of condemning the entire 527 loophole; focusing on the comparatively small-change sums being spent by the SwiftVets would ignore the millions being spent by other 527 organizations (which, coincidentally enough, have been overwhelmingly anti-Bush).

(6) J_Crater made the following comment | Aug 17, 2004 9:27:55 PM | Permalink

CNN just ran MoveOn.org ad saying Bush's dad got him in NG, went missing, and calling the SwiftVets ad a lie (bet they can't prove that).

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