| Dec. 21, 2006 This Is No
Time to Reopen the Floodgates for Unreported, Illegal Campaign
Money; District Court Erred in Wisconsin Right to Life Case
Statement of Joan Claybrook, President, Public
Citizen
In what is hopefully a temporary setback to campaign
finance reform, a three-judge federal district court today opened a new
loophole in federal election law. The court ruled that some broadcast
ads, which otherwise qualify as “electioneering communications” that
corporations are prohibited from funding, could be exempt from the law –
if it is shown the ads address a pending legislative matter and, using a
narrow and formulaic test, do not appear on their face to be an attempt
to affect an election.
The 2-1 ruling involves a Wisconsin anti-abortion group
– Wisconsin Right to Life, Inc. – that has challenged campaign finance
restrictions on a nearly perennial basis. In this particular case,
Wisconsin Right to Life designed a television ad that directly
challenged the electioneering communications provisions of the
Bipartisan Campaign Reform Act of 2002 (BCRA, also known as the
McCain-Feingold law).
BCRA effectively closed a gaping loophole in campaign
finance law, under which corporations and special interest groups would
air “sham issue ads” intended to affect campaigns by sharply criticizing
an identified candidate right before an election. The ads would avoid
using the “magic words” of “vote for” or “elect,” and therefore were
deemed not subject to the ban on corporate electioneering or to
disclosure requirements and contribution limits otherwise applicable to
election expenditures.
BCRA changed all that. It established a bright-line test
to determine when an ad is an issue ad (not subject to regulation)
versus a campaign ad (subject to regulation). Under BCRA, if a
television or radio ad identifies a specific candidate within 60 days of
a general election and targets voters in that candidate’s election
district, it is a campaign ad. If the ad airs outside the 60-day window
and does not expressly urge a vote for or against a candidate, it is an
issue ad. The court’s decision upsets this clear distinction by allowing
some electioneering communications targeting candidates shortly before
an election to be paid for by corporate money if a court finds that they
are not explicit enough in seeking to influence voters.
If the decision of the court stands, how badly the
loophole will be exploited depends on how loosely election officials at
the Federal Election Commission and the courts define “issue ads.” Given
that federal election officials appointed by politicians are, more often
than not, opponents of campaign finance reform, this ruling could open a
huge floodgate of unreported and otherwise illegal money into campaigns.
The ruling is likely to be appealed to the U.S. Supreme
Court. We remind the Court of the eminently sound reasoning behind its
earlier decision upholding BCRA: “In the future, corporations and unions
may finance genuine issue ads during those time frames by simply
avoiding any specific reference to federal candidates.” Given the ready
availability of this option for groups that genuinely want to talk only
about issues, there is no reason to allow candidates to be targeted in
the guise of issue advertising.
We are finally climbing out of the era of sham issue
advocacy, paid for by stealth groups using illegal money for campaign
ads. As we enter what will be the most expensive presidential election
in history, this is no time to tear down this crucial pillar of campaign
finance law.
http://www.citizen.org/pressroom/release.cfm?ID=2343
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