CAMPAIGN FINANCE CRIME

ALLISON R. HAYWARD knows a good deal about election law, and she writes with verve and wit, making good entertainment of what is often the dreariest subjects. In THE WEEKLY STANDARD, she turns these talents to the task of defending the American Issues Project and its financier, Harold Simmons ("Shut Up, They Explained," September 8).

Before long, she has repackaged this little political start-up and pronounced it a tax-exempt "social welfare organization," and the multibillionaire Harold Simmons becomes, at the touch of her magic keyboard, a mere victim of laws ambiguously drafted and now put to dastardly partisan misuse. The charges against AIP and Mr. Simmons are merely, she writes, "campaign finance hyperformalism," by which she means that AIP and Simmons are guilty, at most, of filing the wrong "paper" with the government.

All skillfully done, and the effect Hayward achieves is in large measure owing to her careful management of the facts. If the facts are allowed to speak for themselves, the story is scarcely one of constitutional heroism and brutal political oppression.

  1. "AIP is a new name for an older tax-exempt group." This is Hayward's characterization of this group's purchase of an identity. This is not simply a new name; it is a new "group," two individuals with a plan and a third with the money to fund it, who are nesting within an operation, long defunct, that it is borrowing for the present purpose. The date of this identity heist? August 2008, the same month that the ads in question began to run.

  2. Again, Hayward: "The American Issues Project is a tax-exempt social welfare organization." This is not clear at all: If there is a "new name" and "new management," it may be what it appears to be: a new organization, and its tax-exempt purpose is asserted, not shown. The organization has yet to release its records, which it is obligated by law and has pledged to do: We shall see what these papers show, but unless Hayward failed to mention it, she has not yet seen them. She is seeing here only what she wishes to see.

  3. And more from Hayward: "AIP declares that it was formed to promote political ideas, but that campaign advocacy is not its major purpose" (emphasis in the original). Can you measure "purpose"? This is where the sudden emergence of this organization and the hard fact of its conducting only election-related activity slips stealthily from Hayward's account. By any measure, the organization's purpose--whether it is "a" or "the" major purpose--is election-related: This electioneering is all it has to show for an existence of barely a month's time.

  4. And the unfortunate, much picked-upon Mr. Simmons! Why, in Hayward's words, he "undeniably has the right to spend his own money on a campaign ad berating Barack Obama." Hayward wonders, then, why we should care whether he does so independently, as an individual, filing reports in his own name, or simply puts up the case for the fictitious "AIP."

The reason, one might assume, is that he and his partners like the ring of the "American Issues Project," passed off as a "social welfare" organization, and that it would serve his interests to have the public hearing the ad imagine that it is the collective effort of "citizens"--not the pet political project of a fabulously wealthy financier with a--to put it politely--exotic business and political past.

After all, if the ad closes with "Paid for by Harold Simmons and not authorized by any candidate or candidate committee," the next question is: "Who is Harold Simmons?" And he, it is fair to speculate, prefers not to have the question asked.

Simmons's innocence in this matter is belied by his history with political money. The Federal Election Commission fined him for twice exceeding the aggregate cycle limit on federal contributions: once in 1989 and once in 1990. Thereafter, his daughters alleged in legal action against him that he had drawn on a family trust fund for additional contributions in their names that they neither knew about nor approved ("family feud shows how rich spread political gifts; Simmons sisters dispute donations in their names," Dallas Morning News, May 4, 1997).

So Hayward has rewoven these threads into a tale far nobler than the participants deserve. This "group" is three people, one of whom has the money, donning the identity of an organization long out of business, and their purpose is to put on this disguise so that they can run political ads as a "social welfare organization" with Mr. Simmon's unlimited money and avoid various requirements of the law.

Objections to this conduct strike Hayward as "campaign finance hyperformalism"--too much fussing about the proper choice of paperwork. But she also complains about the lack of "clear standards" in the law. It seems that she should choose one defense or the other: The law is either fatuously formal, clear but silly in the lines it draws, or the lines are not clearly drawn.

But this is not a case where a collection of average citizens stumbled into a regulatory problem, no fault of theirs. They went about their business with the determination to steer around legal limits and fund their election-related activities just as they chose.

That this scheme was clumsy, and that the AIP clan will eventually have to answer for their violations, does not thrust them suddenly into a sympathetic light, and that the Obama campaign intends to see this through, to enforcement, does not make it an oppressor.

If this would cheer her, Allison R. Hayward might consider the Obama campaign's gesture of bipartisanship: assisting John McCain with the enforcement of the law he has championed, the most recent amendment to which was signed into law by President Bush.

Note: The undersigned is the general counsel to Obama for America, responsible for what Allison refers to, critically, as the "campaign's lawyering priorities." This letter also appears on his website, www.moresoftmoneyhardlaw.com.

BOB BAUER
Washington, D.C.

ALLISON R. HAYWARD RESPONDS: I enjoy Bob Bauer's spirited defense of the Obama campaign's steps against AIP. To respond briefly to his points, and at the risk of alienating every reader who isn't already a campaign finance geek:

Bauer disputes that AIP is a new name for an old group, observes that it may not properly be administered as tax-exempt, and declares that AIP's purpose is "election related." These are legal conclusions he reaches with the facts he has in hand, not, as he would have it, "facts" representing the whole picture. They are, by the way, conclusions typically left to federal administrative authorities in the context of civil enforcement. Recall that the Obama legal strategy is not one limited to civil enforcement. Bauer is contending that AIP/Simmons is in "knowing and willful" criminal violation.

Bauer agrees that Harold Simmons would have the right as an individual to spend his own money in unlimited amounts on this same ad, and so he must agree that the crux of the issue is whether, by giving that same money to AIP, he committed a crime. That is precisely the point I felt worth making. Whether the money comes from Simmons or Soros, it seems like "hyperformalism" to recognize the one type of spending as protected First Amendment activity and the other as criminal.

Bob Bauer is a student of campaign finance regulation of the highest order. He may recall that one impediment to the full enforcement of campaign finance laws prior to the 1970s was the fact that violations were punished as crimes. Whatever one's frustrations with the pace of FEC or IRS enforcement, I wouldn't think he would choose those days over today.

OBAMA'S R SUM

I SHARE DEAN BARNETT'S opinion that Barack Obama's résumé should raise red flags ("Would You Hire Barack Obama?" September 1). Not only has his career been strange for a lawyer, but it also lacks any important achievements. If I headed up a law firm, I would have to think three times before extending Obama a job offer.

I have had the misfortune to be the one to fire people like Obama from a couple of different companies I have worked for in the past. They are highly intelligent, but lack the drive to complete the work or project.

There is no way that I would vote for him as president, a job that requires tough and important decisions to be made on a daily basis.

GENE GUFFEY
Schönau-Gebüg, Germany

THE HOLLYWOOD RIGHT

I NEVER KNEW THE MEN featured in Stephen F. Hayes's article "Hollywood Takes on the Left" (August 11 / 18) were conservative, but how could I?

An American Carol shouldn't be burdened by the hope of creating a sea change in perception. Rather, if it does well at the box office and encourages sincere thinking, I believe it will be successful. I hope for the best for all of the people associated with the film. I'll vote for them with my wallet.

DAVID SHOWS
Columbia, Miss.

ATTACKING BIG BUSINESS

I 'M ENCOURAGED BY Senator McCain's changing opinion on drilling as reported by Stephen F. Hayes ("To Drill, or Not to Drill," August 25).

What enrages me about McCain, though, is that he says he associates with independent California petroleum producers because "they're not ExxonMobil."

He displays what I see as a disdain for big business. But, does he complain about the fabrics made for pilots that come from DuPont? DuPont is huge. I bet big Kevlar doesn't get complaints from McCain, either.

BRETT BUTLER
Springfield, Ill.