Issue Ads and Free Speech

If you live in a hotly-contested state like Iowa or Florida, you’ve probably noticed the recent flood of “issue ads,” which are officially designed to raise awareness about certain issues rather than to advocate the election of a specific candidate. Less than a year ago, it looked like these ads wouldn’t be airing at all by now, but in June of 2007 the US Supreme Court handed down a decision that allowed them to continue.

The case was Federal Election Commission v. Wisconsin Right to Life, Inc. But first, some background.
In 2002, the Bipartisan Campaign Reform Act (popularly known as the McCain-Feingold Act) banned issue ads within 30 days of a primary election and 60 days of the general election. The concern centered around groups known as”527s,” named for the section of the tax code that applies to them. These tax-exempt, non-profit groups are not affiliated with any candidates, although they do support certain positions. Wisconsin Right to Life is a 527, as are MoveOn.org, Swift Boat Veterans for Truth, the AFL-CIO, and the College Republican National Committee, all major spenders in recent elections. These groups use donations to create issue ads that support ideas and policies, but do not advocate electing or removing any public official.

Until the Bipartisan Campaign Reform Act, these issue ads were exempt from campaign finance laws because they were not considered part of any political campaign. But as you might imagine, the line between an issue ad and a campaign-related advocacy ad had a tendency to get blurry. Here’s a fictitious, but not impossible, example:

Advocacy Ad, subject to a host of laws and regulations: “Candidate X says he hates puppies, but Candidate Y knows that puppies are cute and cuddly. This November, cast your vote for puppies – cast it for Candidate Y.”

Issue Ad, not subject to any campaign finance laws: “Candidate X says he hates puppies, but Candidate Y knows that puppies are cute and cuddly. Candidate X has said that, if elected, he will propose laws banning puppies. Candidate Y promises to oppose anti-puppy legislation.”

As we can see, these ads are pretty close. But the first one expressly advocates the election of a specific candidate. The second one educates voters on the candidates’ positions on the issue, although obviously with the intention of convincing you to vote for Candidate Y. That’s why the Bipartisan Campaign Reform Act banned them from airing close to federal elections. If the law had stood, issue ads in many states would have ceased by now, since we are within 30 days of several state primaries.

But in Federal Election Commission v. Wisconsin Right to Life, the US Supreme Court overturned the McCain-Feingold Act’s prohibition on issue ads. Simply put, the court ruled that if an issue ad can be “reasonably be interpreted” as something other than an appeal for defeat or support of a candidate, banning it is a violation of the First Amendment. The FEC argued that issue ads are the “functional equivalent” of advocacy ads, because although issue ads do not expressly support a candidate, it is obvious that they are trying to sway voters. But the court responded that protecting speech on public affairs is a paramount consideration. Because the content of issue ads is informational, rather than advocative, the First Amendment interest in protecting speech overrides the interest in regulating elections. Therefore, issue ads can’t be prohibited.

But with the phrase “reasonably be interpreted,” the court did leave open some room for future challenges. So what does “reasonably be interpreted” mean? Well, that’s what lawyers are for.