Groups should take ownership of ads

The organizers of a new group called The Real Truth About Obama Inc. had it all planned out.

They filed a lawsuit with a friendly federal judge in Richmond asking him to exempt them from campaign advertising regulations. Then they prepared to receive his hearty bon voyage as they sailed off to the U.S. Supreme Court to unleash a fleet of Swift Boat-style attacks in the final months of the presidential elections.

It didn't quite work out that way. U.S. District Judge James Spencer refused to give the group the blanket protections it sought to raise and spend unlimited money on radio attack ads without any public disclosure.

The surprise ruling is another demonstration of how difficult it is to balance individual free speech protections with the broader public interest in preventing corporations, unions and other commercial entities from controlling political debate by buying up all available air time for fabricated, venal attacks.

Spencer previously concluded in 2000 that the Federal Election Commission relied on overly vague definitions to distinguish between advertisements that stick to issues and those that promote the election or defeat of a specific candidate. Pure issue ads cannot be restricted, but groups advocating for a particular election outcome must disclose their finances and limit donors to $5,000 annually.

The judge criticized the FEC's definition of election advocacy because the agency attempts to predict audience perception rather than sticking to the actual content of the message.

Much has happened since that decision. Political groups have grown adept at blurring the line between issue ads and hit pieces. In 2004, the FEC chugged in and imposed fines on the Swift Boat Veterans and other unregulated groups, but only after their poison had taken effect.

The U.S. Supreme Court rolled back some campaign ad restrictions last year, but it used a "reasonable interpretation" standard remarkably similar to the one that gave Spencer heartburn.

The Real Truth lawsuit is the latest attempt to wipe out all public oversight of political groups. At issue are radio ads using an actor with an "Obama-like voice" who promises to "make taxpayers pay for all 1.2 million abortions performed in America each year" and to legalize abortion "at any time during pregnancy, as many times as a woman wants."

The question is not whether the group can air abortion ads, but whether it must follow the rules for attacks on individual candidates. There's no doubt that such regulations bump up against free speech rights, but as long as groups like Real Truth mix politics and covert corporate influence-peddling, judges will have to sort through the mess in search of a proper balance. Spencer's ruling suggests that's not getting any easier.