The ACLU ran an ad in a paper (The Hartford Courant) pressing Lieberman on the civil liberties issues raised by national security programs and measures, such as detainee treatment and electronic surveillance. The ad questions whether the Senator will pass the test of these votes, and it urges viewers to "tell Joe Lieberman his votes on American values will help determine your vote in November." A spat broke out between the local and national ACLU over whether the ad, apparently run in other locations with other incumbent Members of Congress as their targets, contravened an organizational commitment to nonpartisanship.Having not seen that ad, I must withold judgment. But Bauer does point to a problem with the FEC regulations that note that if reasonable minds could disagree as to whether a ad was express advocacy or not, it might not be express advocacy. What if the, presumably, reasonable six minds on the Commission split 4-2 on the question and the ACLU gets fined?
A subplot is the legal one in which the question is the legality of this ad, judged by the "express advocacy" standard of federal campaign finance law. Was the ad, run within weeks of the election, illegal corporate spending to influence the election, or merely "grassroots lobbying" conducted under the watchful protection of the First Amendment? In its selection of text, the ACLU invited the question: for the ad does refer to the pending election and to the significance to that election—and its outcome—of the Senator's stance on these particular issues.
Sounds like a very fun lawsuit- doesn't it.
Be sure to read Bauer's ode to the ACLU at the post.