Are There Genuine Issue Ads or Just “Sheep’s Wool”?

December 2, 2016
posted by Bob Bauer

Progressives thinking about the experience with reform have to grapple with its implications for mobilization, for effective political speech and action. As previously noted here, one traditional reform objective – – regulating issue advertising – – bears reconsideration

For years, a priority has been to expand the rules to cover certain issue advertising within election seasons. The authors of McCain Feingold settled on what they took to be an objective test–define the election season as a month to two months before an election, and then capture within reporting requirements ads that simply” refer” to a candidate and are directed to his or her electorate. The ads affected would surely be “sham” ads, intended to influence the election, and disclosure of the financing of these “electioneering communications” would be appropriate, as it is in the case of clear-cut campaign advertising.

But is there such a thing as a genuine issue ad–one that is designed to discuss candidates in relation to issues but without, within the four corners of the ad, expressly calling for the candidate’s election or defeat? Or to put it in doctrinal terms, may the government reporting rules reach ads that do not involve either express electoral advocacy or its “functional equivalent”? The Court in McConnell v. Federal Election Commission took it more or less for granted that genuine issue ads would not be subject to mandatory disclosure. 540 U.S. 93, 206 n.88 (2003) (“ [W]e assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads”).

In Citizens United, the Supreme Court devoted a line to the seemingly contrary conclusion, suggesting in the most general terms that “the public has an interest in knowing who was speaking about a candidate shortly before an election.” Citizens United v. Federal Election Commission, 558 U.S. 310, 369 (2010). But its discussion on this point was short, and it also appeared in a case that involved a communication–a movie–that was plainly intended to influence voter choice. It was decidedly not a case about “genuine” issues speech.

The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent–i.e. a “genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016).

The Court concluded that the distinction between genuine issue and other ads was “entirely unworkable.” Id. at *9. All such ads in an election season would have “electoral impact,” intended or unintended, and it “would blink reality to try to divorce speech about legislative candidates from speech about the legislative issues for which they will be responsible.” Id.

And in any event, the Court concluded, the ad “implied” a judgment about the candidate. The mere appeal to the viewers to contact the candidates and urge support of the bill would have to mean that the candidates opposed the desired legislation, or were not reliably for it: they were apparently “not already on board as a committed supporter of the bill.” Otherwise, the Court reasoned, “there would be no reason to ask [voters] to solicit the electoral candidate’s support for the proposed law.” Id.

The Court at oral-argument was very focused on these questions of “subtlety” and “implication” in the ad’s message, as evidenced by Judge Millett’s questions about how the law could protect against “implicit messages, subtle messages” or– stating her case more dramatically–how it could “police against things that go around in the sheep’s wool of a genuine issue ad, but in fact are sending subtle messages.” Tr. At 31. Judge Millett, who wrote the opinion for the unanimous court, made clear her belief that Congress could regulate even issue ads that were not sheep’s wool worn over an electioneering function: “People may want and voters may want to know who was behind that ad so they can evaluate those arguments, those policy arguments.” Id. at 40 (emphasis added).

For tax-exempt and other progressive issue organizations, the case is a significant one with implications of its own for the coming debate over “Trumpism” and the congressional majority’s plan to implement it. In the next election season, much of the discussion will center on the stand members of Congress (and other candidates) have taken, or would propose to take,on elements of this program. Under this decision, issue ads directed to this question would be regulated “electioneering communications.”

One consolation usually offered to organizations faced with these legal consequences is that they are required only to be transparent–to provide donor disclosure. But some prospective donors will balk at the exposure, fearing consequences, and in the polarized politics of the times, this fear cannot be too readily dismissed as irrational. It is also suggested that the election season for purposes of the disclosure requirement is short–30 days before primaries and 60 days before general elections. But not everyone agrees that the election season requires so limited a definition, and the future could hold laws, like the one recently enacted in New York, expanding the limits as they apply to tax-exempt issue advertising.

So it is not inconsequential that in election seasons, the campaign laws can be extended to what Judge Millett called “policy arguments” appearing in what the Court once “assumed” to be genuine issue ads enjoying full constitutional protection. As progressives plan for the fights ahead and the funding they will need to wage them effectively, they might well question whether long-standing reform commitments can take them comfortably this far.

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