It might not be as colorful as Alanis Morissette’s “black fly in your chardonnay,” but Nancy Pelosi’s television turn in a climate change advertisement is ironic in so many ways -- not the least of which is that, in the process, the Speaker of the House may have violated the very campaign finance “reform” laws she has long supported. Trying Her Best to ‘Save the World’ … Illegally

It might not be as colorful as Alanis Morissette’s “black fly in your chardonnay,” but Nancy Pelosi’s television turn in a climate change advertisement is ironic in so many ways -- not the least of which is that, in the process, the Speaker of the House may have violated the very campaign finance “reform” laws she has long supported.

You know the ad, right? There is current Speaker Pelosi (D-CA), sitting on a sofa alongside former Speaker Newt Gingrich (R-GA) in front of the U.S. Capitol, telling Americans that “we need cleaner forms of energy, and we need them fast.” Pelosi then urges viewers to “go to” because “together, we can do this.”

Of course the hook in the ad -- paid for and produced by Al Gore’s Alliance for Climate Protection organization -- is that the current and former Speakers of the House come from opposite sides of the partisan political aisle. Indeed, at the top of the ad Pelosi introduces herself as a “lifelong Democrat” and Gingrich introduces himself as a “lifelong Republican,” prompting Pelosi to rhetorically observe, “We don’t always see eye-to-eye, do we, Newt?” But while the hook of political opponents coming together on this important issue is not only cute but effective, it should have been the red flag that the advertisement is actually illegal -- under Pelosi’s beloved Bipartisan Campaign Reform Act of 2002, a.k.a. McCain-Feingold-Shays-Meehan.

In fact, it didn’t take long for campaign finance lawyers across the political spectrum to notice that the ad has real serious problems under the federal election laws. In news stories in USA Today and the New York Sun, and online on Fox News and the Cybercast News Service, there was unequivocal agreement among election lawyers that, as Jan Baran put it bluntly, “It’s prohibited.” Baran then went on explain just the most obvious way the ad is illegal because of federal election laws and regulations.

“The ad constitutes a ‘coordinated expenditure’ on behalf of Ms. Pelosi’s by the group sponsoring the ad,” the Sun paraphrased Baran as explaining. “Any ad of that sort distributed in a candidate’s district within 90 days of a congressional primary or general election is deemed a campaign donation.”

You see, Pelosi faces a primary challenge for her seat in the U.S. House of Representatives, and that election will take place on June 3. While the timing may be particularly unfortunate for Pelosi, the climate change ad ran nationally -- including in her congressional district in California -- more than 250 times between April 18 and May 6 of this year, meaning that each of those airings easily fell within the prohibited time period.

After all, since the California primary election is on June 3 and the national general election (assuming Pelosi wins the primary) is on November 4, the blackout imposed by McCain-Feingold-Shays-Meehan began for Pelosi on March 5 (90 days before her primary). Then, following her primary, the blackout will lift for about two months, from June 4 to August 5, before a new blackout begins again on August 6 (90 days before the general), which will only lift after the general presidential and general elections on November 4.

If that sounds pretty stupid to you, well then consider that the blackout only applies to the places where the specific candidate is on the ballot, so the Pelosi ad could run anytime so long as it is anywhere but in her congressional district. Of course, television signals and cable markets aren’t generally limited by congressional boundaries, but the lawmakers who passed the campaign finance “reform” laws, including Pelosi, didn’t worry about that reality. Moreover, the lawmakers also didn’t consider just how difficult it would be to track different blackout periods falling and lifting across the country -- not in unison but in conflict based upon how many days away any particular candidate would appear on the ballot in that particular media market.

These are precisely the points all of us who have fought the long, hard, and continuous battle against campaign finance “reform” have made for years now -- to the legislators, regulators and judges. And, while we have made some progress in the courts and at the Federal Election Commission, we have been left with election laws that are not only so ridiculously restrictive but also so unbelievably unrealistic that they really do catch even the political candidates, as well as their lawyers and advisors, by surprise.

Pelosi’s camp rationalized her appearance through a statement claiming that the ad was “non-partisan,” and in any event that the current Speaker “didn’t coordinate,” not really at least, with the Alliance for Climate Protection. Then, in typical Washington fashion, Pelosi’s camp proceeded to blame someone else for her legal transgression, claiming that Pelosi “trusted” that Al Gore’s group “would run the ad only where it was proper and legal.” But probably Pelosi, and certainly her lawyers, understand that she would strike out on those three arguments because, quite simply, none of that matters when it comes to whether a candidate or a contributor violates the campaign finance “reform” laws.

In other words, lawmakers like Pelosi have created a system where everyone is looking for loopholes, just to get the political message out there. But in the post-McCain-Feingold-Shays-Meehan world, all too often there is no loophole to exploit. As election lawyer and campaign finance critic James Bopp Jr. explained to the New York Sun: “I’m a guy that specializes in loopholes” and “I don’t know of any loopholes” that the Pelosi ad could slip through.

All of this should cause Pelosi and her campaign finance “reforming” friends to reconsider their position as to just how much the government should be regulating political speech, even if it could, or does, relate in some way to an election. Mind you, we don’t really think she will give it a second thought, which is why we also think what Judicial Watch’s President said is particularly appropriate.

In filing a complaint based on the climate change ad with the Federal Election Commission, Thomas Fitton commented, “Nancy Pelosi and Al Gore may want to save the world, but they still have to follow federal law.” We couldn’t agree more. After all, what’s good for the rest of us is just as good for the “reformers” themselves.

May 29, 2008
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