Sham Issue Ads – and Sham Rules

Today, the Federal Election Commission (FEC) will ratify its new regulations governing “sham issue ads” (electioneering communications). The Bipartisan Campaign Reform Act (also known as the McCain-Feingold law) prohibits broadcast advertisements that air immediately before an election to be paid for from corporate or union treasury funds. However, the new Roberts Supreme Court ruled in Wisconsin Right to Life v. FEC that “genuine issue ads” should be exempt from the ban on corporate spending.

Public Citizen, along with many others, advised the FEC to craft its new regulations narrowly, within the confines of the Court’s ruling. This means carving out a special exemption from the corporate and union funding ban for ads that have no other reasonable meaning than to influence the election of candidates.

Instead, the FEC has produced two options for its final draft regulations on electioneering communications. Option A allows most sham issue ads to be paid for with soft money but maintains disclosure. Option B allows most sham issue ads to be paid for with soft money and ends most disclosures (unless the ad bumps up against Federal Election Campaign Act). Neither option preserves the McCain-Feingold ban on corporate and union funding for most sham issue ads.

My assessment is that most of the five commissioners we have at present seem to be leaning toward Option A.

Either way, expect many more television ads this coming record-setting election season, and a dramatic rise in corporate money in the campaigns (most of the union money stayed in the elections, though it was diverted to voter mobilization). The ads sponsored by outside groups — these sham issue ads that are once again permissible — have a strong tendency to be harshly negative in tone.

Just ask Republican presidential candidate Mitt Romney, who recently complained about  attacks on his religious beliefs by some outside groups. Romney tried blaming the McCain-Feingold law for not doing enough. But the bottom line is that Romney’s own chief advisor, Jim Bopp, who represents the Wisconsin Right to Life group, is leading the attack against the campaign finance law, to allow even more of these sham issue ads, and even to end disclosure of which groups are funding these ads.

Perhaps if the $1 billion presidential campaign is not enough to cause a voter revolt, the sham issue ads will be.