Friday, December 7, 2007

The Ron Paul Blimp and BCRA

I've been plenty critical of Ron Paul supporters of late, but the concept behind the Ron Paul blimp is in my view nothing short of briliant. Now, the idea of the blimp itself is, shall we say, creative and unorthodox- but there's hardly anything offensive about it.

Wonkette can't avoid ridiculing the concept, and let's be honest here- the whole idea sounds like something borne out of someone's 4:20 AM bong hit session (Dude! What if we, like, got a blimp and then we could tell, like, 88 million people about the rEVOLution, man! A blimp? Dude! That's the best idea ever!). But as crazy as it is, it wins points for originality and in an era where politicians need to separate themselves to get attention from the masses, original ideas are the best way to achieve that.

Assuming the project actually gets off the ground, the more fascinating element of the whole effort is to me the campaign finance law implications. To sum up the setup behind the blimp project: the blimp is being run by a for-profit company set up for the sole purpose of flying the blimp. The official business of this company is political advertising. The company's "customers" buy a specified amount of advertising time on the blimp. Since the customers are individuals making independent expenditures (and not pooling their funds) they are, theoretically, exempt from many of the limits of BCRA. The company itself is theoretically acting in no different a way than any other for-profit media company.

It seems likely that this whole thing will wind up getting brought before the FEC. If it does, it will place the FEC in a similar position to the BCRA "Revenge Fantasy" case pending with the FEC. If the FEC rules that the for-profit set-up behind the blimp is indeed exempt from BCRA, then BCRA's effects will be significantly limited with respect to independent expenditures.

On the other hand, if the FEC finds that the setup is in fact a violation of BCRA's independent expenditure provisions, then the FEC is probably in violation of Buckley v. Valeo's finding that individual indpendent expenditures are constitutionally protected speech. Thus, the free speech implications of contribution and expenditure restrictions will be brought even more into focus.

I should mention that there is one other potential problem the project may face from the FEC: the fact that the for-profit company will, in practice, only exist to assist one candidate. I'm not enough of an expert on election law to know how big a role that will play, but it's probably worth noting that the company would not be making use of the "public" airwaves and that the charged rates are presumably about market rate for advertising on a blimp of this sort (so there's no issue of "in-kind" donations by the company). Maybe the FEC could argue that the company is not accepting advertising in favor of other candidates, and therefore there is some sort of a bizarre "in-kind" donation going on- but I don't know how you could value such a "donation", and that type of ruling would raise other free speech concerns about forced political speech. Of course, there could be some other provision of election law that I'm completely missing that would make this scheme open to constitutional restrictions by the FCC; but I'm currently unaware of such provisions.

No matter how successful or unsuccessful this attempt is on the campaigning front, the blimp campaign setup combined with the setup should prove to be an interesting test of BCRA's "as applied" rather than "facial" constitutionality.