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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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