Issue Advocacy Ads - History of Interest Versus Express Advocacy

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, given the nature of man, 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. There was no clear line that clearly stated if you cross this point you are on the wrong side. A rule with a clear line is termed a bright-line rule. 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.

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. 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".

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.