Jim Bopp and the editorialists at the New York Times are not of one mind on the issues of the day and if there is an exception here or there, no one would expect to find it in the realm of campaign finance doctrine.  And yet now, it seems that just that has happened:  a strange and expected convergence in their perspectives of 527 and other "issue advertising."  It has shown up in their beliefs that what an organization may or may not do legally depends, somehow and unexpectedly, on whether by one measure or the other, what it says is true.

     The Times, famously, argues that 527 regulation has as its mission the restraint of smears, lies, or unhealthily negative speech.   This is wrong, as has been said here; and Bopp once would surely have agreed.  Now, in an Advisory Opinion Request before the FEC, he implies that his doctrinal direction has shifted.  Truth as he reads—he calls it ''indisputable" truth—is all of a sudden relevant to the question of whether a campaign ad, paid by a nonprofit corporation with business corporation funding and directed against a candidate for federal office, is constitutionally protected speech rather than a violation of the federal campaign finance laws.

     His request to the FEC puts before the Commission several pages of materials that he would have taken to be proof of “truth” about the ad’s allegations about Barack Obama.  They are nothing of the sort:  nothing in his presentation comes close to satisfying his standard of “indisputable truth,” and some would say, the undersigned included, that the proposed ad seriously, purposefully misrepresents the “truth”  In no way, however, does this matter for the purposes of the legal inquiry, except that Bopp thinks that it does.

     The ad, in fact, is split between the substantive issue—the significance of votes cast by Senator Obama while a state senator—and the further doubt raised about whether the Senator has told the “truth” about those votes.  This doubt is put forward as the main line of assault. This is the ad’s tagline:  “Barack Obama: a candidate whose word you can’t believe in”.

     Bopp clearly believes, and he wishes the Commission to agree, that an ad with this message about a clearly identified candidate is an “issue ad” properly understood to have other than an as appeal to vote against the Senator.  And consistent with this hoped-for result, he does not believe that the closing line—“a candidate whose word you can’t believe in”—is express advocacy of the defeat of a federal candidate.

     This is a study in pure nonsense.  But Bopp, with his stress placed on the “truth,” perceives, or so it would appear, a way out.  It is not easy to make out what he has in mind.  His point has something to do with his belief in the truth of the ad:  he leaves his thoughts dangling suggestively over the two and a half page request (not counting the attachments documenting the “truth”). 

     One guess is that he would like to argue that a campaign issue is a bona fide issue for advertising purposes—fit, then, for the Wisconsin Right to Life exemption—if the issue is one of the candidate’s truthfulness.  If an ad is made and broadcast to answer a candidate’s misrepresentations, this elevates it to the level where it may be interpreted as other than an appeal to vote for or against a candidate.  Attack a candidate for a vote supporting the war, and you have a campaign ad; attack the candidate for lying about the vote, and it is something else, or something more, namely, an issue ad, provided—of course—that what you say is "true."

     Does Bopp mean that the express advocacy standard is inapplicable where the advertiser is simply “setting the record straight” —that if this is the objective, then the line “a candidate whose word you can’t believe in” is more a public service than political advocacy for the candidate’s defeat?  If these are not Bopp’s views, then why the attached “documentation” for the bogus claim made in the ad? 

     For Jim Bopp to pitch his fortunes to this standard, which would require a federal government agency to adjudicate claims of truthfulness, is a bizarre turn in his long record as an advocate. Stranger still would be any expectation that he would have of selling this defective legal product to the Federal Election Commission.

Bob Bauer