Reformers seek constraints on election advocacy

Monday, May 1, 2000

money stack

The eve of Republican primaries in New York, California and Ohio brought the introduction of television ads by Republicans for Clean Air, a group touting George W. Bush as the presidential candidate with top environmental credentials.

Reporters later revealed that “Republicans for Clean Air” was actually Charles Wyly, a Texas billionaire who spent some $2.5 million on advertising to support the campaign of his friend.

For supporters of campaign-finance reform, the ad heralded the arrival of sham issue advocacy — ads expressly endorsing candidates but disguised as those addressing concerns of national importance — into the 2000 election cycle.

E. Joshua Rosenkranz, president of the Brennan Center for Justice, contends federal election laws should regulate such advertisements.

“The American people believe that someone who spends $2.5 million of his own money in support of a presidential candidate may well want or expect something in return,” Rosenkranz said. “Unless there is full public disclosure of these type of activities, we cannot fulfill the compelling government interest, repeatedly recognized by the Supreme Court as legitimate, of combating corruption.”

Rosenkranz’s comments came during a Senate Rules Committee hearing last week, the fifth on campaign-finance issues in as many weeks. The hearings are expected to culminate in a debate over issues presented in the leading campaign-finance reform bills before the Senate: S.26, sponsored by John McCain, R-Ariz., and Russell Feingold, D-Wis.; and S.1816, sponsored by Chuck Hagel, R-Neb.

Supporters say reform is necessary to dispel corruption in the electoral process. A soft-money ban and more restrictions on electioneering, such as advertisements that expressly endorse candidates, would make the process truer and more accountable, they say.

But opponents, mainly of GOP leaders, contend that such measures unconstitutionally infringe upon political speech. Restrictions on advocacy, they said during last week’s hearing, discourage public participation in politics.

Sen. Mitch McConnell, R-Ky., said most of the current reform efforts, specifically those that target advocacy, go after the private citizen and not politicians and the press.

He said reform efforts “are akin to a rock on Jell-O — that is, limits in one area will inevitably force money into other areas.”

Sen. Orrin Hatch, R-Utah, said reformers possess good intentions but added that their proposals “could very well lead to uncalculated hardships.”

“Like pressurized gas, money will always find a crevice of escape,” Hatch said. “Money will always find a loophole.”

Hatch said the Federal Election Campaign Act and the court rulings have merely substituted direct contributions to candidates with indirect ones made to political parties and advocacy groups. More legislation would create even more bureaucracy, he said.

“Our campaign finance system has walled off electoral political speech and treated it as a regulated industry,” Hatch said. “Not only does this violate core free-speech concerns of the Founders, it has created a jumble of confused regulations and court cases, as well as a bloated FECA bureaucracy.”

Rosenkranz conceded that some of the regulations infringe on speech but said the courts deemed them constitutional because they were narrowly written and tackled corruption. He said legislators must define “electioneering” accurately — too loose would violate free speech, too tight would be ineffective.

Laura Murphy of the American Civil Liberties Union contends that the McCain-Feingold bill, in particular, defines electioneering too broadly.

“The Supreme Court has held that only express advocacy, narrowly defined, can be subject to campaign finance controls,” Murphy said. “The key to the existing definition of express advocacy is the inclusion of an explicit directive to vote for or vote against a candidate. Minus the explicit directive or so-called ‘bright-line’ test, what will constitute advocacy or ‘electioneering communications’ will be in the eye of the beholder.”

But Rosenkranz says such a definition is ineffective because most political ads don’t use such “magic words” as “elect” or “defeat.”

He said the Brennan Center had reviewed some 300,000 political ads and found that about 60,000 of these were issue ads from political parties and special interest groups that avoided words of express advocacy.

But the research found that all of the political party ads were aimed at supporting or opposing a candidate. He also said that only 4% of the ads run by candidates themselves even used express words of advocacy such as elect or defeat.

“It is constitutionally permissible for Congress to enact legislation that regulates ads that are intended to influence the electoral outcome of particular candidates, as long as the legislation does not unduly sweep within its reach ads that intended to discuss issues only.”

James Bopp, general counsel for the James Madison Center for Free Speech, said current law already sweeps too many issue ads into its grasp. Instead of encouraging speech, the law forces political speakers “to hedge and trim.”

Bopp noted that the Supreme Court, in its landmark 1976 ruling Buckley v. Valeo, created the bright-line test to protect political speakers.

More laws, Bopp said, would not curb corruption but would chill even more speech.

“Campaign-finance laws are already so complex that many citizens fear Federal Election Commission investigation,” he said. “Without a cadre of lawyers and accountants to ensure compliance with campaign-finance laws, citizens simply drop out of the public debate altogether rather than risk penalties for noncompliance.”

Phillip Taylor, a free-lance correspondent, works for the Daily Press in Newport News, Va.