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Buying Time: The Fallacies Of Campaign Reform And Our Advertising Laws

The Brennan Center talks about issue advocacy.

Published: April 1, 2002
April 1, 2002

Buying Time: The Fallacies Of Campaign Reform And Our Advertising Laws
By Craig B. Holman, Ph.D. and Luke McLoughlin

Television advertising has become the weapon of choice for the players in contemporary presidential and congressional campaigns. Broadcasters reap a bonanza from fierce competition among candidates, parties, and interest groups for scarce and increasingly expensive airtime in the weeks before election day. In large part, corporations, unions and wealthy individuals who circumvent longstanding federal campaign-finance laws supply the huge infusions of cash that make it possible to charge premium rates for television time. This study of political television advertising in the 2000 federal elections builds upon the Brennan Center’s prior report on the 1998 congressional races to document the nature and magnitude of one of the most intriguing innovations in campaign-law evasion: what is widely known as “issue advocacy.”

The concept of issue advocacy dates back to 1976, when the U.S. Supreme Court decided Buckley v. Valeo. The Buckley court was concerned that the Federal Election Campaign Act (FECA) might improperly regulate political conduct that was not actually electioneering and that vague statutory language might chill speech by political players who were uncertain about the law. To save FECA, the court interpreted it to apply only to communications that “expressly advocated” the election or defeat of20a federal candidate. The court listed examples of explicit words of electioneering—such as “vote for,” “vote against,” and “elect”—that would indicate express advocacy. Some lower courts then decided that Buckley’s examples of express advocacy constituted a test of electioneering.

The result of this “magic words test” is that as long as parties and groups omit certain explicit words such as “vote for” or “cast your ballot for” in their ads, huge campaign advertising expenditures can escape legal constraints. Ads by parties and groups that eschew the magic words are considered issue advocacy under this standard, whether or not their intended purpose is electioneering.

Issue advocacy under this broad definition has become a major loophole in campaign-finance law because electioneering issue ads are usually treated as genuine issue ads for regulatory purposes. Evading the law intended to govern them, campaign ads that avoid magic words masquerade as ads informing viewers about a public issue. As a result, parties and groups can skirt disclosure requirements, dodge contribution limits, and sidestep source restrictions prohibiting corporations and unions from spending treasury funds on federal campaigns. Even foreign agents may legally finance so-called “issue ads.”

The scope of electioneering issue ads has expanded dramatically in the last three election cycles. The amount spent by parties and groups on electioneering issue ads swelled from $30 million in 1998 to more than $200 million in 2000. Viewers see more and more ads, but as long as the ads avoid using magic words, the electorate gets less and less information about who is behind them.

Many scholars, regulators, and politicians have for some time doubted the usefulness of the magic-words test. This study sheds light on just how few advertisements exist today that use those magic words to communicate electioneering messages. Data about the content of television ads in the 1998 and 2000 elections demonstrate that in modern-day ad campaigns, explicit words of advocacy are virtually nonexistent. The magic-words test appears to have been eclipsed by modern advertising techniques, though it remains in many corners the prevailing standard for express advocacy.

This is an executive summary of the full report of Buying Time 2000. The full report is available through the Brennan Center.

Content Of Advertising

Buying Time 2000 demonstrates that the magic-words test has little foundation, if any, in advertising reality. Coders found that 96 percent of electioneering ads by groups lacked magic words and 98 percent of party ads lacked magic words. Most tellingly, 90 percent of candidate ads—which are by definition considered express advocacy whether they use magic words or not—did not employ magic words. The fact that so few candidate ads incorporate magic words highlights how unnecessary explicit words are to convey an explicit electioneering message. That parties and groups can also effectively convey their electioneering messages without express advocacy is thus not surprising, but the legal ramifications are enormous. Avoiding magic words has no value for candidates, but for parties and groups it means that ads can be paid for with funds that (i) would otherwise be illegal under federal campaign-finance law, and (ii) oftentimes are not disclosed to the public.

Summary Of Key Findings

  • Approximately $629 million was spent on television advertising by all candidates, parties, and groups in the 2000 federal elections. This figure represents an all-time record spent on political advertising. Even when looking at just congressional races, the $422 million spent in 2000 far exceeds the $177 million spent on political television ads in the 1998 congressional elections.

  • The magic words standard that some use to distinguish express advocacy from issue advocacy has no relation to the reality of political advertising. None of the players in political advertising—candidates, parties, or groups—employ magic words such as “vote for,” “vote against,” “elect” or anything comparable with much frequency in their ads. Only 10 percent of candidate’s ads ever used magic words, and as few as 2 percent of party and groups ads used magic words.
  • Special interest groups increased their expenditures of political advertisements nine-fold since 1998, breaking all previous records. Conservatively estimated, special interest groups spent about $98 million on political television ads in 2000—more than 58 percent of that spending went for electioneering issue ads.
  • Parties made record-breaking use of issue advocacy in the 2000 elections. In addition to spending more on television advertising relative to the presidential general election than the candidates themselves, political parties primarily aired issue ads rather than ads using magic words in order to sidestep federal campaign-finance laws limiting the amounts and sources of contributions.
  • All of the so-called party issue ads, bar none, were electioneering in nature. None of these party ads qualified as genuine issue ads. The proportion of party ads that were positive in tone dropped since 1998, from 28 percent to 24 percent.
  • Genuine issue advocacy by groups is overwhelmed in the final 60 days of an election and is replaced by electioneering issue ads. Approximately 86 percent of group-sponsored issue ads aired within 60 days of the 2000 general election were electioneering issue ads rather than genuine issue ads.
  • A legislative proposal (the Snowe-Jeffords Amendment) to establish a test for express advocacy based on whether an ad identifies a candidate within 60 days of the general election would be a substantial improvement over the magic words test. If the Snowe-Jeffords 60-day bright-line test had been in place in 2000, only a fraction (less20than 1 percent29 of ads subject to financial disclosure would have been genuine issue ads.

Preserving the integrity of the American campaign finance system requires constant vigilance. Each election cycle brings new innovations in campaign-finance evasion as parties, candidates and groups strive to bend the system to their benefit. At times the existing rules and regulations seem more like fiction than fact, and new reforms at the federal level seem doomed before they are even proposed.

However, public opinion has started to catch up with those who have for years taken advantage of the system in the pursuit of electoral success. Regardless of refined legal or policy distinctions in types of advertisements, the public is keenly aware that most political ads are indeed electioneering ads and that the political players are side-stepping federal campaign-finance laws. The legal community has begun to catch up, recognizing the futility of the magic-words test and taking steps to draft a more sophisticated standard for regulating electioneering. Political scientists, too, have drafted new laws and have responded to the dearth of information about the nature and scope of electioneering issue ads by conducting studies to shed light on this once-secretive tool.

Combining the insights from these three communities adds to the likelihood that public policy will emerge that is grounded in common sense, legal expertise, and scholarship. The shared effort of citizens2C lawyers, and20political scientists working hand-in-hand with legislators creates room for optimism about a system few deny is in dire need of repair.

Craig B. Holman, Ph.D., is the Brennan Center’s Senior Policy Analyst and a leading expert on campaign financing.

Luke P. McLoughlin is a Research Associate in the Brennan Center’s Democracy Program.