The Des Moines-based American Future Fund is exploiting loopholes in rules governing political advocacy groups in order to run campaign advertising in targeted races without disclosing its donors.

The Des Moines Register provided the latest evidence in this article from Saturday’s edition: “National group airs ads on Iowa House.”

For background on the American Future Fund, a 510(c)4 organization “formed to provide Americans with a conservative and free market viewpoint,” you can read this piece by Iowa Independent’s Jason Hancock, this TPM Cafe story by Mrs. Panstreppon, or Paul Kiel’s report for TPM Muckraker.

The American Future Fund is associated with heavy-hitters in the field of campaign advertising. Its media consultant is Larry McCarthy (creator of the 1988 Willie Horton ad), and its legal consultant is Ben Ginsberg (who was involved with the Swift Boat Veterans for Truth in 2004).

Representatives for the American Future Fund deny that the group seeks to influence elections. For that reason, they are not subject to campaign disclosure rules governing political action committees and other groups that make independent expenditures during election campaigns.

However, the American Future Fund’s radio and television commercials this year have focused on candidates running in competitive Senate races, such as Republican incumbent Norm Coleman of Minnesota, Democratic candidate Mark Udall of Colorado, and Democratic candidate Jeanne Shaheen of New Hampshire. You can view many of those ads at the AFF’s You Tube channel. Note that while these commercials ostensibly are focused on generating phone calls in support of a particular issue position, they haven’t been aired in states without a contested Senate seat.

Now the AFF is weighing in on key Iowa legislative races. From yesterday’s story in the Des Moines Register:

On Wednesday [October 29], AFF launched television ads in Iowa that criticize Democratic Reps. McKinley Bailey of Webster City, Paul Shomshor of Council Bluffs, Elesha Gayman of Davenport and Art Staed of Cedar Rapids. All four are incumbents struggling to hold onto their seats in the face of strong Republican challengers.

Other ads that compliment Republican Reps. Doug Struyk of Council Bluffs, Jamie Van Fossen of Davenport and Dan Rasmussen of Independence. Struyk is a Republican leader whose opponent has spent little; the other two are dealing with strong Democratic challengers.

AFF’s spokesman explained the timing of the political messages by saying it took months to compile analysis on the legislative session, which ended in April.

What an amazing coincidence. Analysis about legislative action completed more than six months ago resulted in television ads that appeared six days before a general election.

In another amazing coincidence, the AFF’s ads happen to focus on candidates running in six battleground districts being targeted by both parties. Dozens of legislators who voted the same way on those issues, but represent uncompetitive districts, are not subject to AFF’s advertising blitz.

I could only find two of the American Future Fund Iowa’s tv ads on You Tube. One praised the Republican incumbent in Iowa House district 81, Jamie Van Fossen, and the other criticized the Democratic incumbent in House district 9, McKinley Bailey.

It’s worth noting that while urging viewers to call legislators, these ads give the phone number for the switchboard at the State Capitol. However, the switchboard is currently closed, because the legislature is not in session. The AFF spokesman explained that the law requires advertisements to use official phone numbers, but he is evading the issue.

These commercials cannot be intended to generate citizen communication with legislators if they are giving a phone number that no one is currently answering.

Clearly the AFF selected the subjects and timing of their advertising in order to influence the outcome of legislative elections in Iowa. (The Republican Party of Iowa is concentrating its resources on making gains in the Iowa House, where Democrats have only a 53-47 majority.)

The tv ads direct viewers to the web site of the AFF’s Iowa chapter: www.iowa.americanfuturefund.com.

AFF spokesman Tim Albrecht

told The Des Moines Register last month that AFF is a group that focuses solely on national issues. “At that time we were, but after a lot of analysis and reviewing what had occurred in the last legislative session, we decided to open an Iowa chapter,” he said.

It is AFF’s first state-based chapter in the country, said Albrecht, who is a former spokesman for Iowa Republican legislative leader Christopher Rants and AFF’s only paid staff member.

Earlier this year, the Iowa Future Fund was incorporated by the same people behind the American Future Fund, and the Iowa Future Fund ran television ads criticizing Democratic Governor Chet Culver. (Here is one of the Iowa Future Fund’s ads against Culver.) In March, the Iowa Democratic Party called for an investigation into the Iowa Future Fund’s advertising campaign and failure to disclose donors. In April, a press release announced the creation of the Iowa Progress Project to replace the Iowa Future Fund. In theory, the the Iowa Progress Project was going to focus on state issues, while the American Future Fund focused on national issues.

It is unclear why the American Future Fund decided to create an Iowa chapter, rather than have the Iowa Progress Project pay for television commercials about Iowa House incumbents. If anyone has any information regarding the Iowa Progress Project or the decision to create an AFF Iowa chapter, please post a comment or send me a confidential e-mail (desmoinesdem AT yahoo.com).

Can anything be done to force the AFF to disclose who is paying for these commercials? Charlie Smithson, executive director of the Iowa Ethics and Campaign Disclosure Board, told the Des Moines Register that his office had received a complaint about the ads, but that campaign disclosure laws do not apply because the AFF ads do not urge viewers to vote for a candidate.

Mr. desmoinesdem has extensively researched election law and tells me that one relevant case in this area is Federal Election Commission v. Wisconsin Right to Life. Wisconsin Right to Life was running ads urging people to contact their senators about judicial filibusters. Senator Russ Feingold was up for re-election, and the ads did not urge people to vote against him, but the FEC considered them “sham issue ads” that were intended to influence an election and therefore were subject to regulation by the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold).

The Supreme Court had previously upheld McCain-Feingold’s provisions on political advocacy ads (in the McConnell vs. FEC case), so the key question was whether Wisconsin Right to Life’s ads were the kind of political advocacy Congress can regulate. With Chief Justice John Roberts writing for the majority, the court

held that McConnell v. FEC did not establish the test that any ad intended to influence an election and having that effect is express advocacy. Such a test would be open-ended and burdensome, would lead to bizarre results, and would “unquestionably chill a substantial amount of political speech.” Instead, the Court adopted the test that “an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The Court further held that the compelling state interests invoked by the government to regulate advocacy did not apply with equal force to genuine issue ads. Neither the interest in preventing corruption nor the goal of limiting the distorting effects of corporate wealth was sufficient to override the right of a corporation to speak through ads on public issues. This conclusion, the Court held, was necessary in order to “give the benefit of the doubt to speech, not censorship.” The dissent by Justice Souter called WRTL’s ads indistinguishable from political advocacy ads and accused the majority of implicitly overruling McConnell v. FEC.

I agree with Souter’s position that so-called issue ads targeting candidates in key races shortly before elections are really political advocacy ads subject to McCain-Feingold. If the American Future Fund were mainly trying to influence Iowans’ views on issues, they wouldn’t be running their commercials only in battleground districts. Also, the timing of the ads only makes sense in the context of this Tuesday’s election. As I mentioned above, no one is currently answering the phone number AFF asks viewers to call.

But Smithson has to look at the AFF’s Iowa advertising from a narrow legal perspective. Clearly the ads are promoting favorable opinions about some Republican incumbents and unfavorable opinions about some Democratic incumbents. But as long as the ads urge people to call a telephone number (even a non-working one), courts would probably not hold that the commercials have “no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

I am not an expert on election law or disclosure requirements for 501(c)4 organizations. Perhaps there is some way Congress could require more financial disclosure of 501(c)4s so that they would not be able to run campaign ads with no accountability.

I don’t know the solution, but I do know that we can help Democrats fight back against the American Future Fund’s ad campaign by giving to the Iowa House Democrats’ Truman fund or to the following individual candidates:

McKinley Bailey (incumbent in House district 9)

Art Staed (incumbent in House district 37)

Elesha Gayman (incumbent in House district 84)

Paul Shomshor (incumbent in House district 100)

Phyllis Thede (challenger in House district 81)

Gene Ficken (challenger in House district 23)