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"Sham" Issue Ads and Sham Campaign Reform

by 

Bradley A. Smith

Professor of Law

Capital University Law School

303 E. Broad Street

Columbus, Ohio 43215

614-236-6676

email: bsmith@law.capital.edu

May 26, 2000

 

The Brennan Center for Justice at New York University Law School, a leadinglobby/litigation group for heavier campaign finance regulation, has recently released astudy purporting to be "the missing link in the debate over sham issueadvocacy." As usual, journalists are eating up anything served by a"reform" group, with even the normally sedate David Broder praising the study as"an eye opener." Unfortunately, the study, titled "Buying Time," doesas much to obscure and confuse the debate over issue advocacy as to clarify and enlighten.

In the landmark case of *Buckley v. Valeo*, the Supreme Court recognized thatlimits on political spending and contributions infringe on the First Amendment right tofree speech. However, the court held that the government interest in preventing corruptionwas important enough to justify minimal regulation. Hence, congress could require thedisclosure of the sources of contributions, and limit the size of contributions madedirectly to candidates, so long as contribution limits were not set so low as to preventcandidates from raising the sums needed to communicate effectively with the public.However, congress could not regulate spending on, or the sources of funds for, independentdiscussion of political issues, even though such discussion might have the effect ofinfluencing elections. Only ads that would "expressly advocate" the election ordefeat of a candidate were subject to regulation.

"Sham issue ads," as the Brennan Center calls them, are ads that are runduring campaigns by political parties and other groups. These ads discuss, often in harshor swooning terms, the records of certain candidates on particular issues, but stop shortof specifically urging the election or defeat of any particular candidate for office. Acommon tag line, for example, is "call Senator X, and tell him to stop messing with[social security/the environment/rights of workers/etc]." Because they do notexpressly advocate the election or defeat of a candidate, the ads are not subject toregulation under the Federal Election Campaign Act (FECA). Therefore, they can be paid forwith money raised outside of the contribution limits in the FECA. But because they may,and are often intended to, affect the outcome of elections, regulatory advocates such asthe Brennan Center consider them a "loophole" in the law. "BuyingTime" is an effort to track the extent, nature, and influence of televised issue ads,in the hope of building a case for greater regulation of this form of political speech. 

Let’s start with what the report does right: it provides us with a great deal ofraw data, and lots of pretty, colored charts and graphs, much of which was not previouslyavailable, or not available in a readily useable format. I do not mean this to be faintpraise. Information is a powerful tool, and accurate information, especially whenorganized so as to be visually appealing and easily memorable, can greatly aid ourunderstanding of important issues, such as campaign finance. The Center examined thenature and content of over 2100 political ads airing over 300,000 times in 1998, andprovides potentially valuable information on tone, theme, timing, and sponsorship of theseads. Unfortunately, as soon as the Brennan Center starts trying to draw conclusions andsuggest regulatory prescriptions based on this information, the quality of the study fallsapart.

For example, much of the Center’s report relies on the notion that anadvertisement may only be considered "express advocacy" subject to regulation ifit contains what the Center dubs "magic words," such as "vote for,""elect," "support" and "defeat." In fact, no court in theUnited States has ever held that any particular words of advocacy – "magic"or otherwise - are necessary to find that an ad is subject to regulation under FECA.Indeed, several courts, including the United States Courts of Appeal for the NinthCircuit, the state supreme courts of Indiana, Texas, and Wisconsin, and the Oregon Courtof Appeals, have explicity, by name, rejected a "magic words" test for an ad toqualify as express advocacy subject to regulation. 

The Brennan Center would have the casual reader believe that the "sham" issuead "loophole" is created by the courts applying a ridiculously unrealistic andinflexible standard when determining which ads are subject to regulation. In fact, the"loophole" does not exist because the courts have applied a "magicwords" test, but instead exists in spite of the fact that no court has ever adoptedsuch a rigid test. In fact, a number of courts, including the Ninth Circuit in *Furgatchv. FEC*, the U.S. District Court for the District of Columbia in *FEC v. ChristianCoalition*, and, indeed, the Supreme Court in *FEC v. Massachusetts Citizens for Life*,have found express advocacy despite the absence of any "magic words."

Of course, it is easiest to determine that an ad qualifies as express advocacy when ituses one of the Center’s so-called "magic words," so in fact most casesfinding express advocacy by non-candidates do use such words, or others like them.Further, the absence of such words does make any prosecution for violating contributionlimits extremely difficult. But then, the First Amendment is intended to provide broadprotection to speech. 

Nearly 60 years ago, in *Chaplinsky v. New Hampshire*, the Supreme Court held that"fighting words" could be regulated by the state as an exception to the FirstAmendment, but the exception has proven so narrow, so hard to meet, that virtually nocases have met the test. Similarly, in *New York Times v. Sullivan*, the SupremeCourt made clear that newspapers could be found guilty of libel for commenting on publicofficials, but set the test so high that such lawsuits are rarely even pursued, let alonewon. Similar things could be said about the Court’s tests for regulating indecenttelephone communications (*Sable Communications v. FCC*), or incitement to riot (*Brandenburgv. Ohio*). In other words, the fact that an exception to the rule of protected speechis narrow or hard to meet does not mean that the test is inflexible or unrealistic. It maysimply mean that other important constitutional principles are at stake.

In the context of campaign finance regulation, those principles are rather obvious.Limits on political spending and contributions regulate political speech. Don’tbelieve it? Well, just try to publish a newspaper, or run a broadcast station, or rent ahall for a speech, or print brochures, or do most any of the things both issue andcandidate campaigns do, without spending money. And political speech, it should go withoutsaying, is at the core of the First Amendment. 

It is inconceivable that the First Amendment would allow the government to engage inprior restraint of speech on political issues, but that is what limits on issue ads woulddo. The *Buckley* court recognized that even the threat of prosecution would have achilling effect on speech, and so adopted the "express advocacy" test (which theBrennan Center mistakenly thinks is the "magic words" test). That is, unless anad crosses a bright line into the realm of expressly advocating the election or defeat ofa candidate, it may not be regulated. Messages with any ambiguity, no matter how slight,must remain unregulated if we are to avoid a chilling effect on free speech.

It is important to note that the *Buckley* court was not unaware of the likelyconsequences of providing broad protection for issue ads. The Court expressly recognizedthat issue ads would be used to skirt limits on express advocacy, stating, "Thedistinction between discussion of issues and candidates and advocacy of election or defeatof candidates may often dissolve in practical application.... It would naivelyunderestimate the ingenuity and resoucefulness of persons and groups desiring to buyinfluence to believe that they would have much difficulty devising expenditures thatskirted the restriction on express advocacy of election or defeat but neverthelessbenefitted the candidate’s campaign." But the Court, in its delicate balancingact, nevertheless held that this was the price to be paid to protect free speech onpolitical issues – the core First Amendment freedom.

Having begun its analysis of the data by setting forth a legal standard never adoptedby any court, the Center’s report soon finds itself steering off into bizarreterritory. For example, the Center reports that only four percent of candidate ads meetthe "magic words" test. But as this is not the test used by any court indetermining whether an ad is express advocacy or issue advocacy, and as no court has foundthat candidate ads, despite their lack of "magic words," do not meet thestandard for express advocacy, of what importance is this statistic? 

More telling is this statistic: the report found that fully 87 percent of all issueads, "sham" or not, did urge viewers to take some sort of action, most often tocall a candidate or official. One might think this would blow the idea that these ads area "sham" out of the water. After all, the ads are discussing issues and urgingviewers to take some specific action other than voting for or against a candidate. Thatwould seem to be protected political discourse. But that is not what the Center concludes.Rather, it goes on to note that of the ads its coders (a handful of graduate students atArizona State University) deemed to be "genuine" issue advocacy, 61 percentincluded toll-free numbers and 25 percent included information about specific bills, butof those its coders deemed to be "sham" issue ads, only 7 percent includedtoll-free numbers, and only 4 percent included information about specific bills. Thus,they conclude, "reasonable people are- with relative ease- able to discern betweenads whose primary purpose is to support a candidate and those intended to provideinformation about a policy issue." Really?

Even assuming that the Brennan Center’s coders correctly discerned the"sham" issue ads from the "genuine" issue ads (we are told that theydid this "with little uncertainty ... 99 percent of the time," and with"a high degree of accuracy," but have no way of knowing if their evaluationwould match our evaluation, how "uncertain" they were, who and on what basis itwas decided that they were "accurate," or what a "high degree ofaccuracy" is) all this tells us is that 39 percent of "genuine" issue adsdo *not* include toll-free numbers, and 75 percent *do not* include specificbill information. Further, we know that some "sham" issue ads *do* includesuch information. If you are thereby feeling confident that the presence or absence of atoll-free number or specific bill information separates "sham" ads from"genuine" ads, protecting your group from possible fines and litigation for itspolitical participation, honk.

In any case, all this represents yet another flaw in the Brennan Center’sthinking. Even the most ardent proponents of campaign regulation generally recognize thatcampaign finance laws have had a wide variety of unintended, and generally negative,consequences. The reason for this is largely due to a static method of analysis, and"Buying Time" displays that static analysis at its worse. The Center seems tobelieve that a change in the law will not provoke a change in political behavior. Butsuppose that the law were to use the presence of a toll-free number or specific billinformation as a determining factor of "genuine" issue advocacy. The purveyorsof "sham" issue ads would simply begin adding such information to their ads, inorder to gain legal protection. How would we discern the difference then? And when, by theway, did one’s First Amendment rights begin to depend on one’s willingness toprovide a toll-free number to listeners? Or on mentioning a particular bill, which may noteven be possible if a candidate of official has made a proposal but not yet introducedspecific legislation. 

This static analysis is again on display when the Center considers another proposal to"deal with" "sham" issue ads. In this case, the Center considers aproposal to define any ad that mentions a candidate within 60 days of a general electionor 30 days of a primary as "express advocacy." Under this proposal, fully onequarter of each election year would find citizens constrained in efforts to rally thepublic for or against legislative actions, if those efforts dared name the representativesinvolved. Still, the Center concludes that such a proposal would affect only 7 percent ofwhat it deigns to call "genuine" issue ads, but would hit 82 percent of the"sham" ads. The Constitutionality of such proposals should be gravely doubted.On what basis do speech rights decline close to an election? And, even assuming we couldinfallibly distinguish "sham" ads from "genuine" ads, since when didthe silencing of even 7 percent of "genuine" issue ads become acceptable underthe First Amendment? We would not tolerate a standard for obscenity, for example, thatalso limited nearly 10% of ads that all agreed were not "obscene."

But assuming that hurdle could be passed, let us consider the probable effects of sucha rule. The first effect is that much controversial legislative activity that is nowspread over the calendar would be scheduled in the 60 days immediately before theelection, when officeholders could cast votes free from issue ads that might drawattention to their actions. Thus, once again, and assuming that the Brennan Center has, inits wisdom, correctly distinguished "sham" ads from "genuine" ads, thechange in the law would merely change behavior. With more controversial votes scheduledshortly before the election, more groups would want to run "genuine" issue adsin the 60 days before the election, so the regulation would harm the "genuine"advocacy the Center claims to favor to a much greater extent than the Center suggests.

Secondly, the 60 day deadline would likely have the simple effect of moving asubstantial amount of "sham" issue advertising – if that is what it is– to the period just before the 60 day blackout. Why this is considered animprovement – when many Americans already complain that campaigns are too long –is a mystery.

The Brennan Center’s final excursion into the sublimely silly is its suggestionthat, just as ads runs by candidates are presumed to be "express advocacy," adsrun by parties should be presumed to be express advocacy, thus subject to regulation. Butthe Supreme Court has already held, in *Colorado Republican Federal Campaign Committeev. FEC*, that a political party may spend unlimited sums to expressly advocate theelection of its candidates for office, through independent expenditures. If the party mayspend unlimited sums in express advocacy, surely it can engage in issue advocacy that mayhave the effect of helping its candidates. The Court has also held, in *Citizens AgainstRent Control v. City of Berkeley* and *First National Bank v. Bellotti,*thatcontributions for issue advocacy may not limited. Finally, the Court has held in numerouscases, including the afore-mentioned *Colorado Republican*, and in a variety ofsettings, that parties have the same rights as other private groups. If we cannot limitcontributions to the Sierra Club, the National Rifle Association, or the Brennan Centerfor Justice to engage in issue advocacy, we probably can not limit contributions topolitical parties for that purpose.

But suppose that we could: then what? Parties would be further hampered in theircampaign efforts, just as candidates already are. This would mean a further shift ofpolitical power away from candidates and parties and toward special interests such as theSierra Club, the NRA, and the Brennan Center. This is reform?

For all these clumsy errors of static analysis, the bottom line on issue advocacy goesback to the First Amendment. Although the Brennan Center and its allies vehemently protesttheir devotion to free speech rights, the fact is that under the test they would like tosee for separating "sham" speech from "genuine" discussion of issues,speech about political issues would have less protection than libelous speech,"fighting words," flag burning, internet porn, soft core cable movies, toplessdancing, and incitement to riot. I do not wish to suggest that protection for these otheractivities should be reduced. I do want to suggest that leaving them with more protectionthan core speech about political issues is, on its face, an absurd way to interpret theConstitution. 

Real reform of campaign finance must begin with reality. That means that we must notbase our prescriptions on legal tests, such as "magic words," that have neverbeen applied in any court of law. It means that we must recognize that campaign regulationdoes not take place in a vacuum, but itself interacts with and reshapes the behavior ofpolitical actors. And it means recognizing that a primary purpose of the First Amendmentwas to take from the government’s hands the power to decide whose speech constitutes"genuine" discussion of issues, and whose speech is a "sham."

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