An effort to chill independent issue advocacy efforts during the 2008 election by Democracy 21 relies on an unfounded reading of campaign finance law, according to a memo released by the Center for Competitive Politics.
Democracy 21 sent a letter to the U.S. Department of Justice last week suggesting that independent groups and their major donors should worry about the possibility of a criminal investigation before speaking out ahead of the upcoming election.
Democracy 21 President Fred Wertheimer specifically asked that U.S. Attorney General Michael Mukasey "make it clear to the public that knowing and willful violations of the campaign finance laws by 527 groups will be subject to potential Justice Department investigation and prosecution."
"But Wertheimer does not want the criminal enforcement of the campaign finance laws as they were enacted by Congress and interpreted by the Supreme Court," observed Reid Cox, Legal Director at the Center for Competitive Politics and author of the memo. "Instead, Wertheimer wants to see criminal investigations based on previous FEC enforcement actions that are not-and have never been-supported by either congressional legislation or court interpretation."
"Criminal prosecutions based on independent issue advocacy are rare for good reason," Cox continued. "Consistent legal precedent ensures protected space for independent issue speech. There also remains much dispute that the FEC exceeded its authority in bringing those enforcement actions based on new and discredited regulations absent additional legislation from Congress or new decisions from the Supreme Court.
"One would hope that an independent non-profit like Democracy 21, which is ‘dedicated to making democracy work for all Americans,’ would be less hostile to free speech," Cox concluded.
Cox’s memo is the fifth in a series of analysis produced by the Center for Competitive Politics examining the legal and political issues surrounding the advocacy activities of independent groups in the 2008 election.