Posted: 9/5/08

     Rick Hasen wants to hear from me about the reason why the Obama campaign has not renewed its complaint against the American Leadership Project, a 527 that drew a complaint when spending on behalf of Hillary Clinton and that is now on the loose, so far unchallenged, against John McCain.  The Center for Competitive Politics started this, raising the question, and it uses the occasion to make its case that the law is used—abused—as an “electoral sword.” 

     Now I have re-read both these posts several times, and I remain stumped. The CCP does interesting work, Rick is a justly noted scholar, commentator and blogger, and so I wonder:  am I perhaps misreading the question that I find, as it has been posed, beyond comprehension?

     But I will rephrase their question, very specifically: why does the Obama campaign not file a new complaint against ALP over its McCain advertising?

     One reason is that in these remaining general election campaign weeks, the Obama campaign will pick its fights with care, and legal actions undertaken for the protection of the McCain campaign are not on any of the draft “to do” lists that I have compiled or seen.  Trevor Potter and his colleagues, representing the McCain campaign, can shoulder this responsibility: his client is the one suffering any alleged injury.  Rick’s question should be: “Trevor?” 

     Trevor has not acted, to my knowledge, and not a word has been heard from the Republican National Committee.  The McCain campaign and its RNC agents may have chosen to turn the other cheek.  Or maybe the cheek that ALP slapped does not smart all that much and they don’t imagine that a defense is needed.  Or they have studied the law carefully and concluded that the case is too close or that they have none at all.  And there is always the possibility that the McCain campaign has no wish, for tactical reasons, to confront 527s, anticipating or hoping that it will have a battalion of its own help out over the next weeks.

     Any injury here is either to the public interest, in the enforcement of the campaign finance laws, or to a competitive interest, or both. The injured competitor—and if there is a competitive injury here, it is to McCain—is apparently unmoved to act.

     On the broader question, of the use and misuse of the law, CCP wishes to have it only one way. Yes, the law can be deployed as a weapon:  complaints can be filed and investigations demanded to serve political ends.  But violations of the law, committed for competitive advantage, are also found in the campaign armory.
 
     Misuse of the law is only troubling to CCP when accusations without merit are wildly made and the innocent dragged into a legal process they should not have to endure. Of breaking of the law, and the political gain the malefactors expect from that, CCP has little to say.  This is because CCP dislikes the campaign finance laws and is organized to argue for their dismantlement.  For CCP, the law is the evil; and those violating it are victims—victims of an unjust, indecipherable legal regime that ensnares the unwitting or so squelches legitimate expression that defiance is predictable. 

     Campaigns are organized to win elections and the law is one factor among many to be taken into account in mapping the path to victory.  Whether the law is as it should be must be a question for another day. The law is what it now is, and no sensible campaign will pass off as inconsequential wholesale violations of the law that give an advantage to one side of the contest.

     Hence the complaint against ALP in the primary. 

     Now we hear that ALP is back on the air, in another campaign, advertising on other issues with another candidate in its sights.  The other campaign can evaluate for itself ALP’s legal position.

     Of course, the candidate it represents has declared that he no longer has an interest in “refereeing” 527 activity.  This might explain his campaign’s silence. But if ALP’s advertising is OK by John McCain, then certainly the Obama campaign would have no cause to complain. 

     And if it is not OK by John McCain, then it is his battle, as the injured competitor, to fight.

     This is the answer to the question as at least I understood it.  Rick?

Bob Bauer