Primer on Issue Ads

Issue Advocacy:
Electioneering Issue Advocacy
vs.
Genuine Issue Advocacy

Update:  FEC issues state-by-state periods during which "electioneering communications" will be regulated for the 2004 presidential primaries and caucuses. Click here to view.

Through a legal distinction of campaign speech versus non-campaign speech, known as so-called "issue advocacy," television advertising today has become a key instrument for undermining the integrity of federal and state campaign finance laws. Recent efforts by citizens and legislatures to place ceilings on campaign fundraising and spending, and to provide accountability of those groups and individuals who are attempting to influence elections, had largely been evaded by the strategic use of "electioneering issue advocacy" – an issue that is now at the heart of the legal challenge to the nation’s new campaign finance law, the Bipartisan Campaign Reform Act of 2002.

Issue advocacy has historically been viewed as a class of political advertising intended to further or derail a political issue, legislative proposal or public policy—not to advocate the election or defeat of candidates. Issue ads have thus fallen outside the definition of campaign advertisements and beyond the realm of most state and federal campaign regulations, including simple disclosure of who is paying for the communications. The nature of issue advocacy has come under increasing scrutiny, however, as empirical evidence of television advertising from this study and others question whether many such ads are in reality electioneering advertisements—"electioneering (sham) issue ads"—disguised as issue advocacy just to evade campaign finance and disclosure laws.

A. The Rise of Electioneering Issue Advocacy and the "Magic Words" Test

After decades of lack of enforcement of federal campaign financing laws, Congress renewed its determination to regulate money in politics in the early 1970s. Suspicions of financial abuses broke into outright criminal charges against President Richard Nixon with the Watergate scandal which, in turn, prompted Congress to strengthen campaign finance regulations with passage of the Federal Election Campaign Act (FECA) of 1971, amended in 1974. The law imposed a variety of disclosure requirements, contribution limits and spending ceilings on all candidates, parties and groups.

When the Supreme Court considered FECA and its amendments in Buckley v. Valeo, the Supreme Court found several of the Act’s provisions regulating expenditures unconstitutional. Specifically, the Court found Congress’s language which regulated all expenditures by parties and groups "relative to a clearly identified candidate" and "for the purpose of influencing an election" to be overly broad, threatening to chill the speech of these groups. In an attempt to salvage the disclosure provisions and source limitations for election advertising, the Court narrowed FECA’s broad language which regulated party and group expenditures "relative to a clearly identified candidate" to apply only to those expenditures which "expressly advocate" the election or defeat of a candidate.

Without the benefit of empirical evidence or experience in actual campaign practices, the Court opined that the distinction between "campaign advertising" which is subject to regulation, and "issue advocacy" which is not, can logically be drawn by whether the ad uses "explicit words of election or defeat." In the now-famous footnote 52 of the Buckley opinion, the Court named eight examples that constituted "express words of advocacy." These were: "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," and "reject." Without these words of express advocacy or something comparable, ads by parties and groups would be viewed as educational rather than electioneering, and thus not subject to regulation. This distinction between educational and campaign advertising, established in practice since the Anti-Saloon League’s reluctance to disclose its financial activities in the 1920s, had now received the Court’s legal sanction.

In what is now facetiously known as the "magic words" test, the court’s examples of words of express advocacy as given in footnote 52 of the Buckley decision (and subsequently modified by the courts) had become the general standard for distinguishing campaign advertisements from issue advocacy prior to BCRA. All candidate advertisements, of course, had been assumed to be campaign ads subject to regulation and disclosure, but political advertisements by parties, groups and individuals that avoided using one of the magic words were considered issue ads outside the realm of campaign finance regulation.

As a result of the magic words test, the following advertisement, which was aired just shortly before the 2000 presidential primary elections in some key states, was considered an issue ad rather than a campaign ad, allowing those who paid for the ad to remain hidden from the public:

"Last year, John McCain voted against solar and renewable energy. That means more use of coal-burning plants that pollute our air. Ohio Republicans care about clean air. So does Governor Bush. He led one of the first states in America to clamp down on old coal-burning electric power plants. Bush’s clean air laws will reduce air pollution more than a quarter million tons a year. That’s like taking 5 million cars off the road. Governor Bush, leading, for each day dawns brighter."

Since the ad never used any of the magic words the court associated with express advocacy, it was treated as an issue ad beyond the reach of state and federal disclosure laws. The only disclosure behind who paid for the ad was a tag line reading: "paid for by Republicans for Clean Air." No campaign finance reports were filed with the Federal Election Commission. Many voters assumed the ad was financed by an environmental group. It was not until later that the news media revealed that the ad was paid for by Charles and Sam Wyly, two Texas billionaires and long-time friends and contributors to George Bush.

The Wyly issue ad cited above serves as an ideal example of "electioneering issue advocacy"—exploiting the magic words test to finance ads designed to influence elections but which legally fell outside the scope of campaign advertisements. Until fairly recently, however, the practice of using issue advocacy for electioneering purposes had not been all that common. Usually, such electioneering issue ads were sponsored by only a few groups or individuals who wanted to avoid the reporting requirements for whatever reason. Occasionally, issue advocacy was used by unions and corporations to sidestep the source prohibitions against treasury monies being spent in connection with candidate campaigns. But using issue advocacy to evade source prohibitions on corporate and union money in candidate elections really began to take hold when Congress and the FEC adopted a similar loophole to be used by the parties, known as "soft money."

For a discussion of soft money, Click here

B.   The "Bright-Line Standard" of BCRA

The Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold campaign finance law) has addressed the problem of sham issue advocacy head on by offering a new definition for determining when an ad is a campaign ad as opposed to a genuine issue ad. The new definition is known as the "60-day bright-line standard."

The new definition of a campaign ad incorporates both the magic words test and a timing test into the 60-day bright-line standard. Essentially, it defines a campaign advertisement as:

  • Any ad that uses the magic words at any time; or
  • A broadcast ad that depicts a federal candidate within 60 days of a general election, or 30 days of a primary election, and is aired to target that candidate’s voting constituency.

Advertisements that meet either of these tests of a campaign advertisement are thus subject to the contribution limits, source limits and disclosure requirements prescribed under FECA.

A series of academic studies have documented the impact of the old standard and the new standard of defining campaign advertisements, all reaching comparable conclusions. For example, one such study—Buying Time 2000—analyzed all political television advertisements and found that:

  • The "magic words" test of whether an advertisement constitutes express advocacy as opposed to issue advocacy has no basis in the reality of political advertising. Only 2% of party-sponsored and group-sponsored ads ever used the magic words, while only 10% of even candidate-sponsored ads resorted to the magic words.
  • Genuine issue ads tend to air throughout the calendar year, especially when Congress is debating legislation, while electioneering issue ads are overwhelming aired immediately before an election.
  • Of those ads that would be "captured" by the 60-day bright-line standard, almost all are electioneering in nature while only a small fraction are seen as genuine issue ads, confirming that the new definition of a campaign ad is narrowly tailored and far more accurate than the magic words test.

To read Buying Time 2000, Click here

As expected, some 88 special interest groups and national and state party committees filed lawsuits against BCRA and the new definition of campaign advertisement. All the complaints have been consolidated into one case, McConnell v. FEC (discussed at length elsewhere on this Web site). The campaign finance law remains in effect while the case is pending before the U.S. Supreme Court.

As part of the court challenge against BCRA, those suing against the campaign finance reform law are attempting to discredit the Buying Time studies and other related academic research. Much of the outcome of the case could hinge on the credibility of these studies.


READ SELECTED CRITIQUES AND DEFENSES OF
Buying Time 2000:

•   No Merit in Brennan Center Smear Campaign
....By Thomas E. Mann, W. Averell Harriman Chair and Senior Fellow, Governance Studies at the Brookings Institute, May 20, 2003

  Weighing in on the "Buying Time" Controversy
....By Rick Hasen, Professor of Law and William M. Rainas Fellow at Loyla Law School, May 25, 2003

•   An Appearance of Corruption: The bogus research undergirding campaign finance reform
....An Editorial from the Weekly Standard, by David Tell, June 2, 2003

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