Questions and Answers
on Sham Issue Ads
from the League of Women Voters
Q: What are sham issue
ads?
A: Sham issue ads are paid political advertisements that target
individual candidates and are designed to influence the outcome of
elections, but avoid important requirements of the Federal Election
Campaign Act because of a loophole in the law. Under a very narrow
interpretation of current law, many groups have discovered they can
run ads that are clearly designed to influence the outcome of
elections without triggering disclosure requirements, contribution
limits and source prohibitions associated with campaign ads. This is
done by simply avoiding a small handful of key phrases that
“expressly advocate” the election or defeat of a candidate
such as “vote for,” “vote against,”
“elect,” or “defeat.” In addition to the clear
record of abuse of this loophole that was established in recent
election cycles, lower courts have ruled that these handful of
phrases (known as the “magic words”) don’t exhaust the
capacity of the English language to advocate the election or defeat
of a candidate. Nevertheless, Congress has thus far refused to step
in to clarify the law.
Q: Does the League oppose bonafide
issue advocacy?
A: No! We strongly support true issue advocacy and engage in it
ourselves. But opponents of reform exploit the sham issue advocacy
loophole to use undisclosed, unlimited funds to buy election results.
Reformers are simply trying to draw a distinct line between money
spent on true issue advocacy on the one hand, and money spent on
electioneering to influence the outcome of elections on the
other.
Q: What’s wrong with sham issue
advocacy?
A: Unlimited, undisclosed money is overwhelming the election system.
By running ads immediately preceding an election that savage a
candidate’s opponent, special interests can provide something of
great value to the candidate they support, while avoiding disclosure
requirements and contribution limits. They know it is developing into
one of the best ways to get policy results on Capitol Hill. In
addition, candidates are losing control of their own campaigns.
Representative government depends on elected officials being
responsible to their constituencies. Unless the sham issue ad
loophole is closed, outcomes of elections will more and more be
determined by the irresponsible actions of outsiders, unfettered by
the need to represent the interests of the citizens of a state or
district. Finally, money is being directed by political operatives to
outside groups to avoid contribution limits and disclosure. These
groups then claim their rights would be subverted by reform. It is
nothing less than a sophisticated form of money laundering.
Q: Can you show me an example of a sham
issue ad?
A: The following is the text of a broadcast ad that ran in late
October 1996 in Arkansas, attacking Senate candidate Winston Bryant.
The sponsors of this ad bought more than $300,000 worth of broadcast
time just days before the election. Because of the sham issue ad
loophole, it was not considered a campaign ad:
Announcer: “Senate candidate Winston Bryant's budget as Attorney
General increased 71%. Bryant has taken taxpayer-funded junkets to
the Virgin Islands, Alaska and Arizona. And spent about $100,000 on
new furniture. Unfortunately, as the state’s top law enforcement
official, he's never opposed the parole of any convicted criminal,
even rapists and murderers. And almost 4,000 Arkansas prisoners have
been sent back to prison for crimes committed while they were out on
parole. Winston Bryant: Government waste, political junkets, soft on
crime.”
Q: Who paid for this ad?
A: Because this loophole allows sponsors to avoid disclosure, we
don’t know who paid for it. Under current law, it could have
been paid for by a corporation, labor union, ideological organization
or group of wealthy individuals, any of whom might have lucrative
business before the Senate.
Q: Wouldn’t closing the sham issue
advocacy loophole violate First Amendment rights by preventing groups
from running any ads that mention a candidate before an
election?
A: No. The sham issue advocacy loophole can be closed in a
constitutional fashion, and reform advocates have suggested a way to
do so. Any paid broadcast communication with the general public
within 60 days of the general election that uses a federal
candidate’s name or likeness would be considered a campaign ad,
and would be covered by rules pertaining to campaign ads. In other
words, ads that mention a candidate 60 days before a general election
could not be financed with corporate funds or union dues, but could
use publicly disclosed donations subject to reasonable contribution
limits. No group, at any time, would be prohibited from running any
advertisement, regardless of its content.
This change is known as the bright line test because it draws a
bright and unambiguous line distinguishing money that can be spent on
true issue ads and money that can be spent on electioneering. It
would simply let voters know who is paying to influence their
elections, and help to ensure that wealthy special interests
aren’t buying elections.
It is constitutional for several reasons. In Buckley v.
Valeo, the Supreme Court held that the government has a
compelling interest in combating the appearance or reality of
corruption, an interest that justifies restricting large campaign
contributions in federal elections. In recent election cycles, a
clear record of abuse was established as the sham issue ad loophole
was exploited to funnel huge amounts of money into ad campaigns
designed to change the outcome of federal elections. Significantly,
the bright line test simply places limits (for which there are
long-standing precedents) on the type of money that can be used to
pay for certain ads, not on the content of ads. Finally, because it
draws a bright, unambiguous line between money that can be spent on
true issue ads and money spent on electioneering, it is not open to
the charge that it is so vague as to chill speech by leaving
questions in the minds of ad practitioners about what is and is not
permissible.
Q: Is sham issue advocacy related to
soft money?
A: Yes. Sham issue advocacy is the flip side of the soft money coin.
Banning soft money without addressing sham issue advocacy may make
the system worse by channeling big money from disclosed party soft
money into undisclosed sham issue advocacy.
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