The Federal Election Commission is about to meet on an Advisory Opinion Request filed by the restless Jim Bopp, who wants to know which independent ads against Senator Obama will qualify for free, corporate  financing under Supreme Court standards.The ads contest Senator Obama's record on a state Senate vote, and one asks him to apologize for what is declared to be a misrepresentation about the vote, while the other closes with the tagline that he is not a candidate "whose word" you can believe in.

   The General Counsel's draft concludes that one such ad--calling for an apology-- is protected issue advertising, while the other contains prohibited "express advocacy" in referring to the Obama candidacy and advising viewers that the Senator's word cannot be trusted.

   Now Chairman McGahn has shown up with a draft of his own, and he wants more: he believes that both ads are permissible, and that even the ad declaring that Obama as a candidate is untrustworthy can be read "as other than an appeal to vote against him.  McGahn gives textual analysis the old college try: yes, there is a reference to Obama as a candidate, and yes, the argument of the ad is that he is not a candidate whose word is good, but with bold interpretation, this need not be believed to be a campaign ad and only a campaign ad.

   McGahn adopts new interpretative rules.  For example, he argues that the agency should consider the "central focus" of the ad, which he straightfacedly claims is not the Obama "candidacy".  How the punchline of the ad can somehow not be largely dispositive of the question of "central focus" is not explained. 

   Similarly, the Chairman also puts forward the "overwhelming majority" rule, meant to measure whether this majority is on issue, not candidate discussion: but "overwhelming majority" of what?  Characters, words, lines, seconds spoken?  The "overwhelming majority" of the material in many campaign ads is dedicated to "issue discussion", and yet the ads close with a few choice and fairly central words like "Jones is an idiot and does not belong in the Congress".  The "overwhelming majority" rule does not help much with the decision that the Supreme Court has called on us to make--whether the ad can be reasonably interpreted as other than an appeal to vote for or against a specific candidate.

   In a final daring move, McGahn argues that the attack on Obama's veracity is merely a rebuttal from the requestor in an argument just between the two of them.  So, in this view, the rest of the public is simply let in on the quarrel but is not being asked, in fact, to factor the requestor's judgment into their voting decisions.  The ad, Chairman McGahn argues, "remains focused on what he supposedly said…thus stating that he is a 'candidate whose word you can't believe in' with respect to what he had said about the requestor." (emphasis addedd)

   The old college try: but for the very capable Chairman, not one that he would want his final grade to rest on.    

Bob Bauer