Issue advocacy ads
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Issue advocacy ads (also known as interest advocacy ads or issue only ads) are communications intended to bring a problem to light. Groups that sponsor this form of communication are known by several names including: interest advocacy group, issue advocacy group, issue only group, or special interest group. The problem these groups bring to light can be a social or political issue.
Interest advocacy was of primary importance in the United States around recent elections. Many groups were prohibited from expressly telling voters how they should vote.
Interest advocacy is act of making generalized communication regarding a public issue or problem without advocating voters to take a specific action at the election booth.
Identification of a pure "issue only ads" made by interest advocacy groups is difficult. Groups that sponsored messages needed to make it clear to a voter with reasonable intelligence, that the voter should cast their ballot in a manner the group wanted.
Keeping an advertisement issue only was important to groups like 501(c)(3) non-profits. Groups like this were subject to limits, or absolute prohibitions, on engaging in political activities. In 2006, the US Internal Revenue Service issued a fact sheet that stated groups could not endorse, make public statements for, contribute to, or distribute statements prepared by others, since it would be "political intervention". However, at the same time, organizations still could participate in non-partisan voter education efforts, including registration and get-out-the-vote drives and issue advocacy.
The term express advocacy is largely used in connection with a debate in the United States regarding when does issue advocacy turn into campaigning.
Many groups that made what appeared to most to be campaign advertisements, claimed that their communications to voters were really issue advocacy and not express advocacy. To help understand the difference, examine these two communications to voters:
- Select John Smith.
- Vote no! on Proposition 99.
In both examples the message's intention is clear. Using a standard that looks for specific words or phrases in a communication is called conducting a bright-line test. Bright-line is a standard where there is no mistake. One or more of the "Eight Magic Words", or their equivalents, is present or not present.
Express advocacy is associated with independent expenditures.
Interest versus express advocacy?
The bright-line test doesn't cover forms of communication that are indirect or debatable. Consider this message to voters:
- If you like candidate X, you need to know he did Y.
In a communication like this, there is no mention about voting, however, the plain intention is to cast doubt on voters that supported candidate X.
Campaigning like this is typically called negative campaigning, making attack ads, or making thinly veiled promotional ads on the behalf of the candidate.
History of interest versus express advocacy
In the 1970s changes to regulations permitted non-candidate organizations to make independent expenditures and use their money in election season. They couldn't give it directly to a candidate nor make advertisement on a candidates behalf. Typical expenditures were described as being "party building" and get out the vote campaigns. Organizations, especially non-profits were supposed to do this on a nonpartisan basis. However, groups tended to focus efforts on signing up and getting the type of voters to the polls that were most likely to hold similar views.
The only barrier stopping a group from campaigning directly for their favorite candidate or cause was something called the "reasonable person" test. This meant if a reasonable person when viewing the communication comes to the conclusion the sponsor wants them to vote in one way, then it is express advocacy and not interest advocacy.
One problem with the reasonable person test is it isn't definitive, it is not a bright-line rule. There was no clear line that clearly stated if you cross this point you are on the wrong side. In an attempt to help the situation, in 1976 a footnote was included in a US Supreme Court ruling provided eight examples.
However, rather than using them as examples, many found it easier to just leave out the "magic words" and claim their communications to voters were fine. By 1996, interest advocacy groups were spending millions of dollars on campaigns claiming their advertisements were "issue only" since they left out the "magic words".
By 2000, voters were inundated with $500 million worth of this type of advertisement. Owing to these "shame issue ads", scandals, and the amount of spending, Congress held a Congressional investigation. This reinvigorated campaign finance reform, and led to the Bipartisan Campaign Reform Act in 2002 which is more commonly known as McCain-Feingold.:75
In 2003, in a case known as McConnell v. FEC the Court detailed the difference between interest versus express advocacy. It ruled that looking for "magic words" as "functionally meaningless" since an advertiser can communicate their intention to voters without them.:15 Therefore, instead of looking for words, the Court again ruled that if a communication to voters had "no reasonable interpretation other than as an appeal to vote for, or against, a specific candidate" it is "the functional equivalent of express advocacy".:1092
In the United States Presidential election, 2004, "issue only" ads continued and some famous ones were made by a group called Swift Boat. They claimed their advertisements were issue only ads and not express advocacy. According to at least one analyst, voters voted exactly how the sponsors intended and the advertisements "torpedoed" Massachusetts Democrat John Kerry presidential campaign, 2004. Additionally, a PAC named Progress of America, ran an advertisement that showed the horrors of terrorism and stated that Osama Bin Laden and Al-qaeda want to kill American citizens. At the end they asked, "Would you trust Kerry against these killers?" "George Bush did not start this War, but he will end it." Notice those old "magic words" are missing.
In 2007, the US Supreme Court in FEC v. Wisconsin Right to Life ruled that issue ads may not be banned from the months preceding a primary or general election. The test to tell the difference between interest versus express advocacy remained the reasonable person test.
However, this is said to have created a difficulty. A test that requires someone to consider how a reasonable person views a communication to voters, requires someone to decide. The only definitive answer comes from a judge and that takes time. Election commissions are not judges, however, they can issue advisory opinion on the matter. This led to a concern that in Federal elections, that officials at the Federal Election Commission and State level commissions would have to do work. Anyone that was cautious and wanted to make sure their communication to voters was interest and not express advocacy would contact them for an opinion. Communications to voters covers a wide range of areas including advertisements, e-mails, signs, and even speeches on the pulpit might want to ask someone.
To resolve this issue the US Supreme Court looked back at a prior ruling. In 1976 in Buckley v. Valeo the Supreme Court held that one thing of key importance was protecting free speech.
In 2010 in Citizens United v. Federal Election Commission (Citizens United) the US Supreme Court determined, among other things, that it would be basically not possible for the Federal government to be in the business of determining what does and does not constitute issue advocacy or express advocacy.
In 2010 the Citizens United case "expressly rejected the contention that election-law disclosure requirements are limited to express advocacy or its functional equivalent." Therefore, while Citizens United and a subsequent case effected certain spending limitations, it did not permit those making that spending from evading disclosure requirements by claiming they were only performing issue advocacy.:1091-1092
Also in 2010 in a case known as Doe v. Reed, the U.S. Supreme Court rejected an appeal to keep signatures upon a referendum from voters based upon a claim it violate the First Amendment to the United States Constitution.
Lower courts are already applying these new standards to uphold a gamut of state disclosure laws ranging from ballot measures to candidate elections, and from express advocacy to issue advocacy.:1103
- by Michelle Robinson, Section 3.1 - Campaign finance, Subsection 3.1.1 Federal law, Glossary of term, Michael E. Moritz College of Law, Ohio State University, referenced February 16, 2012
- Eyes wide shut: The ambiguous "political activity" prohibition and its effects on 501(c)(3) organizations, Houston Business and Tax Journal, by Amelia Elacqua, 2008, pages 118, 119 and 141, referenced February 16, 2012
- Governor’s Blue-Ribbon Commission on campaign finance reform for State of Wisconsin, Final Report, Section 5. Level the playing field, Promoting freedom of speech, paragraph 3-6, Chairman Donald F. Kettl, May 1997
- Smith, Craig R. (2003). "Buckley v. Valeo". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 203–217. ISBN 0-8173-1301-X.
- Swift boat Vets in 2004: Press coverage of an independent campaign, First Amendment Law Review, University of North Carolina School of Law, Vol. 4, 2005, by Albert L. May, July 29, 2004
- Has the tide turned in favor of disclosure? Revealing money in politics after Citizens United and Doe v. Reed, by Ciara Torres-Spelliscy, Georgia State University Law Review, Vol. 27, No. 4, 2011, July 4, 2011
- "Wyly Brothers Gave Millions To Over 200 Republican Candidates", The Huffington Post, Marcus Baram, July 30, 2010