Mother Jones thinks a panel of federal judges with a record of Clinton animus may be ready to give Hillary Clinton a victory by ruling that a right-wing attack group may not run anti-Hillary ads if it doesn’t report the sources of its money. This would be a victory for far more than Hillary were this to come to pass.
This group wants to overturn a Federal Election Commission ruling that the McCain-Feingold legislations prohibits attack advertising funded with unregulated contributions.
If this rule survives the constitutional challenge, it might have implications for independent attack advertising at every level of politics, even for offices and questions not protected by McCain-Feingold. The outcome may turn in this case, Mother Jones suggests, on the obvious: Even though the ads that have been prepared don’t carry express advocacy — a direct call to vote for or against a candidate — they clearly advocate defeat of Hillary Clinton. That argument hasn’t flown in existing case law.
I attacked a similar set of circumstances in Arkansas, when an unidentified group ran “information” ads in advance of a Little Rock school tax election. The ads were roundly critical of the school district. They were clearly designed to encourage “no” votes on the tax increase. (It passed anyway.) But the state Ethics Commission decided, using federal case law as a precedent, that since the ads contained no express advocacy the people behind them (mainly Jackson T. Stephens Jr.) were not subject to financial disclosure rules.
Whatever else our campaign finance rules might be, full disclosure of the financial backing of advertising ought to be a baseline requirement.
Will a conservative federal bench make a little useful law on this? Hard to imagine. But we’ll see.