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First Full-Scale Study of Political TV Ads Finds That Campaign Laws Fail to Limit Electioneering by Parties and Groups

A report released today by the Brennan Center for Justice at New York University School of Law provides the first in-depth, comprehensive analysis of the scope and content of political TV ads.

May 17, 2000

For Immediate Release
May 17, 2000

Contact Information:
Kevin Bonderud, 202 667–0901
Amanda Cooper, 212 998–6736

First Full-Scale Study of Political TV Ads Finds That Campaing Laws Fail to Limit Electioneering by Parites and Groups
Brennan Center Report Analyzes 300,000 Ads Aired in 1998

A report released today by the Brennan Center for Justice at New York University School of Law provides the first in-depth, comprehensive analysis of the scope and content of political TV ads. The data on more than 300,000 ads aired in 1998 shows that legal definitions governing campaign finance laws are increasingly irrelevant, allowing political parties and advocacy groups to run sham “issue ads” that exploit a gaping loophole.

A key finding reveals that the definition used to identify electioneering ads, which relies on words of express advocacy such as “vote for,” “elect,” or “defeat,” captured only 4 percent of the advertisements run by congressional candidates in 1998. The narrowness of this definition allows parties and groups to sponsor ads indistinguishable from those run by candidates, yet escape the obligations of campaign finance law.

Until now, debates over political advertising and unregulated funds have been based largely on anecdotes, limited snapshots, and assumptions. But the new Brennan Center study fills the information void, providing hard facts about what candidates, parties, and interest groups are doing.

Other key findings of the Brennan Center report, titled Buying Time, include:

  • Political parties ran two-thirds of all “issue ads” (37,386 out of 57,817) and all of those were targeted at candidates. Nearly one-third of “issue ads” sponsored by interest groups targeted specific candidates.
  • Only 15 percent of party ads mentioned the party’s name, even though they were paid for by soft money, which is by law restricted to party-building activities. Interest groups were more likely to mention parties, doing so in 21 percent of their ads.
  • Party ads were far more likely to be negative than those sponsored by candidates. Sixty percent of party ads were attack ads, while just 20 percent of candidate ads attacked opponents.
There is little evidence that interest groups are introducing issues that are neglected by candidates, as both candidates and outside advertisers focused on the same themes – taxes, education, social security, and health care.

One-quarter of all ads failed to clearly and legibly identify their sponsors, and were therefore in violation of federal disclosure regulations.

“The current legal definitions used to regulate campaign contributions and election practices have little connection to reality,” said E. Joshua Rosenkranz, the President of the Brennan Center for Justice. “Our study shows that campaign practices are circumventing laws designed to protect the integrity of elections, as parties and outside groups increasingly exploit technicalities to make long-standing regulations meaningless. Current practices are obliterating laws governing contribution limits, sources of funding, and disclosure.”

Commenting on the fact that only 4 percent of candidate ads used words of express advocacy, Rosenkranz said, “If candidates do not see much magic in ‘magic words,’ it is clear that this definition is an inadequate test of electioneering. Using this narrow interpretation as the sole indicator of whether an ad seeks to influence an election is ridiculous. Do we fail to recognize commercials from The Gap and Nike as advertising because they never say, ‘buy our product’ ? This study shows what we all know: political advertising long ago became far more sophisticated than a simple call to vote for or against a candidate. The campaign finance laws need to come to terms with this reality.”

Using a new source of data on TV advertising provided by the Campaign Media Analysis Group (CMAG), the Brennan Center tracked and analyzed political TV ads in the top 75 media markets, reaching 80 percent of the nation’s population. “This report provides the missing link in the debate over campaign finance laws: empirical evidence,” said Thomas E. Mann, a noted scholar at the Brookings Institution and member of a policy committee advising the Brennan Center on the project. “Now we have hard data that can bring more analysis and reason to the reform debate. The new evidence should force reform opponents to adjust their arguments.”

The study covers ads by congressional candidates, parties, and interest groups, totaling 2,100 separate commercials that aired more than 300,000 times at a total cost of about $180 million. It includes data from 194 House and Senate races. Each ad was coded for content by a team of students at Arizona State University. The project was funded by a grant from The Pew Charitable Trusts.

Buying Time, a 200-page report co-authored by Jonathan Krasno and Daniel Seltz, provides hundreds of figures and tables on the types of ads aired, as well as their sponsors and content. It also profiles top interest group advertisers and contains special reports on 11 Senate and 39 House races in which at least 1,000 ads aired, including breakdowns on ad spending by candidates, parties, and groups in these races. A former Assistant Professor of Politics at Princeton University, Jonathan Krasno was the Brennan Center’s senior policy analyst while writing Buying Time. Daniel Seltz is the Brennan Center’s project coordinator for this study.

“It’s no secret that parties and other groups are using the ‘magic words’ loophole to influence elections, and that the explosion of unlimited soft money contributions is having an increasing impact on campaigns,” said Nancy Northup, director of the Brennan Center’s Democracy Program. “Now we have clear evidence showing how pervasive the practice has become. Hiding behind meaningless legal definitions, parties are using soft money to promote or attack candidates and interest groups are using undisclosed resources to step into campaigns.”

Rosenkranz added, “There is a double standard at work here. Those calling themselves issue advertisers can collect money from whomever or whatever they choose, rather than facing limitations on sources and sums of their funding, as candidates do. And the identity of donors funding issue advertising remains secret. Parties and groups gain these advantages simply by avoiding ‘magic words’ – a sacrifice shown by our study to have virtually no relevance to influencing the outcome of campaigns.”

For the first time, data in the report also underscores what the possible impact would be of major campaign finance reform proposals to regulate “sham issue advocacy.” Legislation offered by Senators John McCain (R-AZ) and Russ Feingold (D-WI) and Reps. Christopher Shays (R-CT) and Marty Meehan (D-MA), for example, defined communication that names or pictures a candidate within 60 days of the general election as electioneering and, therefore, is subject to campaign finance laws.

Critics of these proposal have argued that this would subject legitimate issue advertising to regulation, but the Brennan Center found the proposal would work as intended. Out of the complete sample of over 2,100 distinct ads reviewed in the study, this so called “bright-line” test would have subjected only two genuine issue ads to regulation as electioneering. Virtually all of the ads that would have been captured by the congressional reformers’ bright-line test were, in fact, intended to influence the outcome of an election.

The report also sheds light on ads political parties pay for with soft money, the unlimited donations from corporations, unions, and wealthy individuals. Although parties are allowed to raise this money for “party-building” purposes and to promote issues, all of the ads run by the parties in 1998 actually promoted or attacked candidates, while few even mentioned the party’s name.