The Obama petition to the Department of Justice regarding the American Issues Project ad is a foolish attempt to stop the criticism — foolish because it draws all the more attention to the ad. It makes what I understand to be a local ad buy in Michigan and Ohio all the more a viral video. Amy Holmes asks about its legality. American Issues Project notes on its website that it is a 501(c)(4), a so called “social welfare” organization under the tax code. Those groups can engage in political activity, provided that political activity is not their primary activity. I have no idea whether AIP has a broader mission than ad buys against Obama, but it claims that it will be speaking about broader social issues. If its primary purpose is social welfare, and not political, the ad is no different than other ads by independent groups. It needn’t register as a political committee if its principal purpose is not politics. I suppose an investigation, if followed up on by DoJ, might cause some heartburn for AIP, but it is doubtful to lead to much. Obama’s counsel doesn’t mention the most controversial and highly unconstitutional ban in the McCain-Feingold bill, a limitation on “electioneering communication” within 60 days of an election because we aren’t within the 60 day period yet. (I welcome the views of more experienced election law counsel out there).
Note: I had earlier referred to AIP as a “529 group” which is apparently wrong as a matter of fact, but definitely wrong as a matter of the internal revenue code. I meant “527 group,” but frequently cite the wrong provision Title 26 of the U.S. Code. As a couple of astute readers have pointed out, 529 refers to college savings plans and the like. I doubt that AIP sponsors such a plan. As a father of two young children, I am usually more obsessed with college savings than with political organizations under the Code. I am certain, therefore, to make the mistake again, but highly recommend pre-paid education plans early in your child’s life. When coupled with coercive indoctrination into the benefits of in-state education from an early age (especially here in Virginia), they are a worthy investment.