Lynching loophole

If the question of who placed a now-infamous anti-Hendrix campaign ad in two local weekly newspapers is keeping you up nights, dear readers, we encourage you to invest in some Nytol.

Secretary of state spokesman Ken Silfven told News Hits last week that the SOS won’t be investigating.

Here’s the backstory, in case you’ve been living under a rock. The full-page ad, which ran in The Michigan Citizen and the Michigan Chronicle in the weeks before Detroit’s Nov. 8 general election, featured pictures of four local columnists, including our very own Jack Lessenberry, all of whom have been critical of Detroit Mayor Kwame Kilpatrick. The headshots ran below a faded photo of a mass lynching and the declaration, “Lynching is still legal in America.” The rest of the ad was a polemic that compared negative columns (or in WCHB radio host Mildred Gaddis’ case, radio commentary) to lynching, touted Kilpatrick as an assured African-American who is threatening to white people, and lambasted unsuccessful mayoral challenger Freman Hendrix as a collaborator in suburban exploitation of Detroit. A line of text at the bottom of the ad stated that it was paid for by a political action committee called Citizens for Honest Government. After the ad appeared, PAC treasurer Bill Miller said his group wasn’t responsible for the ad and that he had no idea who placed it.

Rich Robinson, executive director of the Michigan Campaign Finance Network — a nonprofit, nonpartisan political watchdog group — made a complaint to the secretary of state about the ad, based on a state law that requires campaign ads to include who’s paying for them. Violation of that law is a misdemeanor.

However, the fine minds at the SOS have declared that the lynching ad wasn’t subject to that statute. It wasn’t a campaign ad, Silfven says, because it doesn’t expressly advocate a vote for or against a specific candidate.

Uh, whuh?

News Hits isn’t sure how many ways there are to interpret, “Just say no to the suburban raiders and their puppet Helmut Hendrix (a.k.a. Freeman),” which appears in large print at the bottom of the ad. We’re not experts, but in an ad that compares two contenders in an election, “Just say no” would seem to encourage readers to vote against Hendrix.

“That may be your interpretation, but it’s not ours,” Silfven says. “We can’t make the leap and assume it’s talking about the election. Nowhere does it say that this is in connection with the election. So, while some people may want to read that into it, when it comes down to determining whether it violates campaign finance law, in our view, it looks like that line just wasn’t crossed.”

Silfven wasn’t able to explain what other message readers might reasonably draw from the phrase.

The SOS’ decision relies on federal court rulings striking down disclosure laws for issue ads, Silfven says. State law has long required disclosure of expenditures for candidate ads, but in 1998, then-Secretary of State Candice Miller introduced a law that extended the same requirement to issue ads, which can be broader in scope than candidate ads. The federal courts ruled that law was unconstitutional.

In that regard, Robinson says, Michigan now is behind the times. The 2002 McCain-Feingold Campaign Finance Reform Act created a special category of issue ads called “electioneering ads” that run within a certain time before a primary or general election.

“It’s recognized in federal law that if you include the name or image of a candidate in campaign speech, then it is, in fact, express advocacy,” Robinson says. “Michigan’s hanging their hat on an outdated precedent, but it’s a precedent that hasn’t been challenged yet. Someone is going to have to litigate what express advocacy is to bring our law in conformity to federal precedent.”

Robinson says his organization lacks the funds to mount such legal challenge.

In the case of the lynching ad, Robinson says, “They’re [the secretary of state’s office] being kind of anally literalist.”

PAC treasurer Miller was surprised at the SOS’ interpretation of the ad. “That’s their point of view? I think that’s funny,” Miller says. “I don’t think everybody would agree with that. I thought it was advocating for Kwame.”

Miller says he wishes the secretary of state would find out who was responsible for the ad — he’d like his name cleared.

Miller and Robinson agree that Michigan’s law needs to be tightened when it comes to campaign finance reporting.

As it stands now, Robinson says, “It’s just a porous, ineffective law.”

We’re getting that.

News Hits is edited by Curt Guyette. This column can be reached by calling 313-202-8004 or by e-mailing [email protected]
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