An ad comes on the TV set announcing
that Rep. Buddy Diddler clubs baby seals
and molests small doves. The ad then
urges you, the humble viewer, to call
Rep. Diddler and tell him to stop
clubbing baby seals and molesting small
doves. Hard to believe that ad isn't
supposed to harm the congressman's
reelection chances.
Well, except that the Supreme Court
decided in 1976, in Buckley vs. Valeo,
that it actually could be considered an
"issue ad" and not a clear-cut advocacy
ad for a candidate -- since it didn't
expressly say words like "vote
against" or "defeat" -- despite its clear message that Rep.
Diddler should be turned out of office.
A study to be released Thursday by New
York University Law School's Brennan Center for Justice confirms
what most Americans already can figure
out: that this Supreme Court ruling is a
joke to a political establishment that
exploits it ruthlessly.
The study analyzes 2,100 TV political
ads from the 1998 House and Senate
elections -- ads costing $180 million,
run in the top 75 media markets and
reaching an estimated 80 percent of the
American people. The ads were viewed by
a team of "coders" -- five
undergraduates, a professor and a
graduate student from Arizona State
University, as well as the Brennan
Center authors of the study -- who
assessed whether an ad was an "issue"
ad, or if it was just playing one on TV
and actually promoting or dissing a
particular candidate.
The study, "Buying Time," concludes that
the argument that "issue ads" are a way
for the common Joe to voice his opinion
is laughably not the case. Instead, the
ads are a way for both parties and big
special interest groups to slip by
campaign finance laws and pour money
into elections.
The definition of what constitutes an
"issue ad," as established by footnote
14 in the Buckley case, is a vague one
that falls whenever an ad does not use
the "magic words" indicating true
advocacy -- specifically, "vote for,"
"elect," "support," "cast your ballot
for," "Smith for
Congress," "vote against," "defeat" and
"reject."
Because "issue ads" supposedly don't
advocate for one candidate, they are not
subject to the same Federal Election
Commission regulations, such as
disclosure requirements or financial
source restrictions. The abuse of this
power -- the ability for moneyed
interests to flood markets with these
ads without any accountability -- has
been an increasing cause for alarm among
campaign finance critics.
"The Supreme Court felt that Congress,
in its campaign finance reform
legislation from 1974, used way too
broad a definition of political
communication," says Thomas Mann, a senior fellow
at the Brookings Institution. "Trying to
set up an alternative, they used a
footnote in a way that was very
ambiguous. Creative entrepreneurial
political consultants saw an opening,
while other courts have taken footnotes
as the literal truth."
"The Supreme Court has a naive view of
human communication," says Kathleen Hall Jamieson, dean of the Annenberg School of
Communication at the University of
Pennsylvania. "Most communication is
implicit, not explicit, and we all know
that. Whether or not a political ad uses
the [magic] words, any reasonable person
interprets the ad to mean vote for or
against a candidate. The Supreme Court
is made up of lawyers, who are by
definition literalists, and they failed
to understand that.
"Somehow," Jamieson goes on, "the
Supreme Court concluded that if it walks
like a duck, talks like a duck, swims
like duck and looks like a duck -- but
it doesn't say 'vote for' or 'against'
someone -- it's 'issue advocacy.'"
The Brennan Center study attempts to
poke demonstrable holes in the Supreme
Court's definition of "issue ads." For
instance, according to the study, only 4
percent of the ads run by candidates
themselves ever use the obvious "magic
words" -- "vote for" or "defeat" --
though they are completely allowed to do
so. This demonstrates, according to the
study, that deeming an ad as "advocacy"
merely because it contains the key words is
too narrow a definition.
"This report proves once and for all
that the 'magic words' test is nothing
but legal alchemy," says E. Joshua
Rosenkranz, president of the Brennan
Center for Justice. The definition of an
issue ad "may have made sense to the
Supreme Court when it made it up in
1976, but this report proves that it
makes no sense in today's political
environment."
"The key point to me from this study is
that even people who use hard money, and
thus could say 'vote for' or 'vote
against' choose not to," observes Rep.
Christopher Shays, R-Conn., the leading
advocate for campaign finance reform
among House Republicans. "It verifies
the fact that there's no restraint for
'sham' issue ads. It hits the nail on
the head that sham issue ads are
campaign ads."
"Courts have said almost with one voice
that issue discussions are protected by
the First Amendment," counters Joel
Gora, a professor at Brooklyn Law School
and special counsel for the American
Civil Liberties Union on campaign
finance reform, including during the
Buckley case. "That's the whole Brennan
Center thrust, that you need to register
with the government to criticize the
government."
The Brennan Center study indicates that
89 percent of the 57,817 issue ads shown
were run by the two major political
parties and eight national organizations
representing a variety of political
ideologies -- the AFL-CIO, the Business
Roundtable, People for
the American Way, Americans for Job
Security, the
Sierra Club, the National
Right to Life Committee and the American Association
of Health Plans.
"The people who have opposed reform have
created this fiction that what reform
will do is silence ordinary citizens,"
says Rosenkranz. "What we've
demonstrated is that those people are an
absolute fiction. We found not a single
ad that we could ID as being run by a ma
and pa in some locale."
While agreeing that issue ads almost
always clearly promote one candidate
over another, San Francisco attorney
Joseph Remcho says he disagrees "with
the Brennan Center's premise that that's
a bad thing." Remcho is a specialist in
the First Amendment and constitutional
law and is representing a group of
plaintiffs fighting Prop. 208 -- a
California campaign finance law setting
contribution and spending limits -- and,
he argues, "It's a good thing to have as
much as possible in terms of speech out
there. If there are groups who support
candidates because they agree with them
on issues and want to focus their
energies on advocating for that
candidate, that's good."
Interestingly, some opponents of the
campaign finance reform laws favored by
Rosencranz and Shays say that they share
the disdain for issue advocacy groups
and their products -- though they lay
the blame for the ads at the feet of
campaign finance reform laws.
Ed Ramey, a Denver attorney who
specializes in election law, says
Colorado just experienced "a huge
influx" of issue advocacy groups during
the last election. But, he says, "what
brought those groups into Colorado were
the imposition in '96 of low limits on
campaign contributions." In a state law
later declared unconstitutional because
of the efforts of Ramey and a few
others, "campaign finance reformers
imposed unrealistically low contribution
limits on candidates, parties and PACs,"
Ramey says -- a $100 maximum donation
per person for state legislative races,
$500 to statewide candidates, $2,500 for
parties per election cycle and $250 per
PAC. Suddenly, Ramey says, "the money
that once went to candidates fully
disclosed or to parties fully disclosed,
now went to issue advocacy groups --
undisclosed."
"These issue advocacy groups are to some
extent the creature of campaign finance
reform itself," Ramey says. "When you
squeeze money out of the federally
disclosed paths, it just goes to other
paths. Probably all of us would like to
see these issue advocacy groups
disappear. But if we do, the money will
find another way in, under the surface,
that we'll like even less. The money
doesn't go away."
Other opponents of Shays' and McCain's
campaign finance reform efforts -- like
Sen. Mitch McConnell, R-Ky.; House
Majority Whip Tom DeLay, R-Texas; and
Rep. John Doolittle, R-Calif. -- chose
not to comment.
Perhaps not surprisingly. As pointed out
by Sen. Russ Feingold, D-Wisc., a
leading critic of the campaign finance
system, the Brennan Center study notes
that "political parties using soft money
are the worst abusers of the phony issue
ad loophole."
Political parties are allowed to use
"soft money" -- unrestricted donations
that are meant for various
"party-building" activities and not for
specific candidates -- for "issue
advocacy" ads.
But both the Republican National
Committee and the Democratic National
Committee are misusing the loophole,
according to the study. Of those
studied, 85 percent of the ads didn't
even mention the political party until
the end. And 99 percent of the
"party-building" ads mentioned the name
of a candidate.
"In '98, we saw the extent to which
political parties have taken to use
so-called 'issue advocacy' as a major
element in their election strategy,"
Mann says. "All of these ads are run not
to generically 'help the party,' but in
specific geographical districts and
states, mentioning the name of a
candidate, most of them having an attack
component -- and they don't have any
issue content."
One "party-building" ad cited in the
study was run by the Wisconsin
Republican Party and involved the Senate
campaign of then-Rep. Mark Neumann, who
was challenging Feingold in 1998. In an
attempt to portray Republican Neumann as
independent, the "party-building" ad
bragged about how often he had voted
against his party. "He even stood up to
his own party to rebuild Social
Security," the ad says.
Party soft-money ads have been an issue
in the past couple of months. Vice
President Al Gore once pledged that he
would forgo "soft money" television ads
run by the DNC as long as the RNC didn't
run any either. On March 14, Gore said
that he would "take the first step by
requesting the Democratic National
Committee not to run any issue ads paid
for by soft money unless and until the
Republican Party uses money for
advertising ... You have the power to
join me in banning soft money. If you
are willing to do the right thing, we
can change politics forever." But DNC
chairman Joe Andrew said this week,
"We will put [ads] up when we think it's
strategically important to put them up."
Since "issue ads" are classified as such
and don't fall into the purview of FEC
law, they can be funded anonymously.
One of the most notorious examples of
this, according to Jamieson, occurred
during the Republican presidential
primaries when a pseudonymous group
calling itself "Republicans for Clean
Air" ran an "issue" ad (Watch the ad.) that blasted the
environmental record of Arizona Sen.
John McCain and praised that of Gov.
George W. Bush. The New York Times soon
reported that financial supporters of
Bush's -- Sam and Charles Wyly -- had set
up the organization and poured at least
$2 million into the ads. The incident
was interpreted by proponents of
campaign finance reform as a crass
skirting of campaign contribution limits
and a textbook example of the problem
with "issue ads."
"I think the ads that are the most
problematic are the ones run by
pseudonymous groups ... like the Wyly
brothers ad," says Jamieson. "These are
ads that seem to have electoral intent
but they skirt the law."
Calling the study "eye-opening," McCain
-- one of the Senate's leading voices
for campaign finance reform -- argues
that it "provides more ample proof that
we must act to change our campaign
finance laws. Loopholes are being
exploited at an alarming rate and this
report proves that this statement is not
just anecdotal, but factual."
Moreover, McCain warns dramatically, "We
will continue to see the increase of the
pernicious effect of an evil that goes
unchecked. And like any evil, it will
get worse before gets better."
The Brennan Center study "shows
explicitly and convincingly that sham
'issue ads' are indeed campaign ads,"
says Shays. "They target specific
candidates, and they are meant to
influence elections. We should treat
sham 'issue ads' the same way we treat
campaign ads under the existing election
laws."
"For the first time we've gotten a real
empirical handle on the nature of
political advertising," says Mann. "For
the first time, we've gotten a sense of
the relationship between what the courts
have said about express advocacy and
issue advocacy and what's actually
going on out there in the real world of
politics."
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