Straight Talk on Campaign Finance: Separating Fact from Fiction Paper No. 5

One of a series of six papers produced by the Brennan Center regarding Campaign Finance Reform: Magic Words

> download pdf here. 

· When should a political television ad be deemed to be influencing the outcome of an
election? This question, more than any other, stands at the center of the campaign finance
reform debate. Only by answering this question with precision can Congress enact legislation
that achieves its stated policy goals and withstands constitutional challenge.

· There are now empirical research findings to answer this central question. The
Brennan Center for Justice, in cooperation with Professor Kenneth Goldstein at the University
of Wisconsin/Madison, has developed a national database of political television advertising
in the 2000 election. The research duplicates a similar Brennan Center study of the
1998 mid-term elections. Together, these findings bring the debate over issue advocacy out
of the realm of hunches and speculation.

· The current legal standard for identifying an electioneering ad is the so-called “magic words”
test. According to a Supreme Court footnote in Buckley v. Valeo, a television commercial is
deemed to be influencing the outcome of an election only if it includes words such as “vote
for,” “vote against,” “elect,” or “defeat.”

· Only 9 percent of the ads paid for by the congressional and presidential candidates in
the 2000 election used the Supreme Court’s magic words.

· Only 4 percent of the ads paid for by congressional candidates in the 1998 election
used magic words.

· It would be difficult to create a test for electioneering ads that does a poorer job than the
Supreme Court’s magic words test. Empirical evidence proves beyond any dispute that the
Supreme Court standard is an abysmal failure.

· To evade the campaign finance regulations that attach to electioneering speech, special
interest groups must run ads that refrain from using words of express advocacy.

· The restriction is toothless. More than 90 percent of candidates running for office in 1998
and 2000, each paying for TV ads with hard money and, therefore, free to tell viewers to
“vote for” their candidacies, nevertheless chose not to use magic words. Thus, sham issue
ads paid for by interest groups and political parties are indistinguishable from candidate ads.

· The decision by candidates to forego direct campaign appeals merely acknowledges the
reality of effective television advertising—something the Supreme Court’s 25-year-old magic
words test no longer can claim to do.

· Nike ads say “Just Do It”, not “buy these sneakers.” Coca Cola tells consumers “Coke Is It”,
not “drink our soft drink.” Commercials from Pepsi and The Gap feature singing and dancing,
but no dialogue or slogan at all. It should come as no surprise that political ads do not
contain words that expressly advocate an action, since very little modern advertising does.

· In the 2000 presidential election, a Democratic Party ad titled, “Is That The Change You
Want” concludes with, "Eight Nobel Prize winners in economics warn: George W. Bush’s
plans exhaust the surplus and do not add up. Is that the economic change you want?"
Nowhere does the ad say “vote against George W. Bush.” Yet no viewer could possibly
miss that message. Since the ad foregoes magic words, the Democratic Party claimed this
commercial was an issue ad and paid for it with unregulated soft money.

· There is no debate over whether genuine issue ads should be limited or banned. They
should not. The question is whether the law successfully draws a precise line between
issue advocacy, on the one hand, which is not subject to regulation, and campaign advocacy,
on the other, which clearly and constitutionally is. The Supreme Court’s magic words
fail this test.