TAB defense gets crushed by court ruling on `magic words'AUSTIN AMERICAN-STATESMAN
Monday, December 15, 2003
When the U.S. Supreme Court upheld the congressional ban on soft money last week, it also punctured the defense of a business lobby that solicited $1.9 million in secret corporate donations for an attack ad campaign last year.
A grand jury is investigating the campaign launched by Texas Association of Business President Bill Hammond last year to ensure the election of some two dozen pro-business legislators. It is illegal in Texas for corporations to fund political campaigns.
For a year, Hammond and TAB attorney Andy Taylor have argued that the ads were issue-oriented, and thus protected free speech because they avoided magic words, such as "vote for" or "vote against." The Supreme Court threw out the magic words defense in its ruling, saying there is no difference in an ad that says "defeat Jane Doe" and one that condemns Jane Doe's record and exhorts the public to tell her what you think.
Anyone who saw the TAB's vicious ad campaign in the weeks before the November 2002 general election would never mistake them for issue ads. They were the purest advocacy, and the TAB paid for them with secret corporate donations.
The high court's ruling said " . . . the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad." The issue ads paid for with unregulated soft money are "functionally identical" to advocacy ads subject to strict donation limits.
"Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words."
Now that it is clear that the TAB defense has evaporated, should it come clean, acknowledge its mistake and pledge more honesty in future political campaigns? Absolutely. Will it? Most unlikely.
In fact, Hammond said before the Supreme Court decision that the TAB will use the same tactic in next year's elections, soliciting secret corporate money to run ads against candidates he thinks aren't sufficiently pro-business. "We intend to do it the same way," he said.
That's a bright red flag for prosecutors who care about the state law prohibiting corporate electioneering.