Brennan Center Panel Offers Proposals on Sham "Issue Ads"

May 24, 2000

For Immediate Release

May 24, 2000

Contact Information:

Kevin Bonderud, 202 667-0901

Amanda Cooper, 212 998-6736

Brennan Center Panel Offers Proposals on Sham “Issue Ads”

--Recommendations Restore “Common Sense” for Party and Interest-Group Ads and Enhance Disclosure --

A distinguished panel of former lawmakers, business leaders, and scholars today unveiled five new recommendations to ensure that sham “issue ads” are covered by federal election laws and to improve disclosure rules so viewers know who is sponsoring political ads.

The proposals were developed by a Policy Committee on Political Advertising convened by the Brennan Center for Justice at New York University School of Law. The members of the Brennan Center Policy Committee include: the Center’s President, E. Joshua Rosenkranz; the Director of its Democracy Program, Nancy Northup; former Reps. Leon Panetta (D-CA), Vic Fazio (D-CA), Linda Smith (R-WA), and Al Swift (D-WA); and Thomas E. Mann of the Brookings Institution.

The recommendations stem from problems that were underscored by new data released last week in the Brennan Center report, Buying Time, the most in-depth, comprehensive look at political advertising ever compiled. The findings in Buying Time, authored by Jonathan Krasno and Daniel Seltz, provide a factual underpinning for the Policy Committee’s recommendations, distinguishing them from other campaign finance reform proposals.

The ”Five New Ideas” recommended by the Brennan Center Policy Committee on Political Advertising would:

1. ENFORCE EXISTING FCC RULES ON DISCLAIMERS AND ADOPT STRONGER REQUIREMENTS FOR THE DISPLAY OF SPONSOR INFORMATION IN POLITICAL ADS.

It was impossible to discern sponsorship of 25% of the ads studied in Buying Time. Rules should be enforced and larger and oral disclaimers should be considered.

2. INCREASE ACCESS TO EXISTING INFORMATION ABOUT MEDIA BUYS.

For all political ads, FCC regulations mandate that sponsors file organizational paperwork with the broadcast station for public inspection. The FCC should create a central clearinghouse of this information to allow easier public access.

3. REQUIRE FULL DISCLOSURE OF THE TRUE IDENTITY OF SPONSORS OF MEDIA BUYS.

The FCC requires that the sponsorship of ads must “fully and fairly disclose the true identity” of the organization paying for the ad. The emergence of front groups, such as “Republicans for Clean Air,” violates this rule.

4. ADJUST THE BRIGHT-LINE TEST.

Buying Time revealed that just two genuine issue ads would have been subject to regulation under the 60-day bright-line approach contained in prominent reform proposals. The bright-line test should also include exceptions for geographic targeting and the sponsor’s intent.

5. TREAT ALL ADVERTISING SPONSORED BY POLITICAL PARTIES AS ELECTIONEERING.

The political parties are raising record amounts of “soft money” to fund candidate-centered ads that exploit the “issue advocacy” loophole. Congress or the FEC should clarify that party ads mentioning candidates are electioneering.

The ideas would define all ads sponsored by political parties as campaign ads and adjust reform proposals to ensure that real issue ads could still air right before elections without restriction. They would improve disclosure by requiring clearer identification of sponsoring organizations and information about who is actually buying the ads. Unlike other reform proposals, the Brennan recommendations would turn to the Federal Communications Commission (FCC) to enhance disclosure.

By avoiding a few direct words, such as “vote for,” “elect,” and “defeat,” political parties and interest groups have increasingly aired campaign ads while avoiding election laws. By exploiting this loophole, the Brennan Center wrote, they “have been able to turn the world of campaign finance upside down, threatening the three pillars of federal campaign finance law: contribution limits, financial source restrictions, and disclosure requirements.”

“These fairly simple and straightforward recommendations would go a long way toward curtailing ads that masquerade as issue advocacy,” said Joshua Rosenkranz, the Brennan Center’s President. “They would restore common sense to our campaign laws, reduce the demand for soft money, and ensure that voters and the media have information they need about those who are trying to influence elections.”

Political parties and interest groups have “seized on this ‘loophole’ in the federal campaign finance laws with a vengeance, creating advertisements that look, sound, and feel exactly like campaign commercials, but simply avoid using so-called ‘magic words’ of express advocacy,” the report accompanying the recommendations said. “Although the sponsors of such advertisements often claim that they are engaged in issue advocacy rather than electioneering, in practice the primary ‘issue’ that is being discussed is usually the fitness of a particular candidate for public office.”

Buying Time found that two-thirds of all so-called issue ads were run by political parties and all of those party ads focused on candidates. Buying Time also found that 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.

Congressional action or an advisory opinion from the FEC, which already has authority over parties, could simply clarify that party ads that mention or picture a federal candidate are by definition “express advocacy.” This would restore the assumption under which parties largely operated until the explosion of party-sponsored sham issue ads in 1996.

Bills passed by the U.S. House in 1998 and 1999, and measures offered by Senators McCain, Feingold, Snowe, and Jeffords, generally defined ads that mention or picture a candidate 60 days before an election as campaign ads to be governed by the same rules as other campaign ads. Opponents of these provisions argued that it would restrict genuine issue advocacy by citizens. But the Brennan Center’s analysis of 1998 ads found that this restriction would have only covered two real issue ads.

To help address First Amendment concerns about these proposals, the Brennan Center would retain the 60-day line contained in the legislative proposals, but add a “safe harbor” that would allow groups to run ads targeting candidates if they aired outside the geographic view of voters or by filing legal declarations that the intent is not to influence the election.

Current FCC rules govern the size and duration of disclaimers on political ads. These could easily be expanded to cover a greater portion of the ad. A precedent for doing so are requirements for disclosing risks associated with pharmaceutical products.

FCC rules already require political ad sponsors to file organizational information with TV stations. Just as the FEC collects and reveals extensive records on contributors, now disclosed on the Internet, the FCC could do the same with information about ad sponsorship. This would give citizens and journalists greater access to information about ad sponsors.

Likewise, the FCC already requires that ads must “fully and fairly disclose the true identity” of the ad sponsor. By enforcing this rule, as well as a “reasonable diligence” requirement, the FCC could help prevent individuals and groups from hiding behind false or misleading names.

Previous press release (May 17, 2000)