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Drop That Ad, or We Shoot

By Jonathan Rauch
National Journal, October 24, 1998

Trying to figure out why the state of Wisconsin believes that, legally speaking, political ads are like obscenity, I went prowling the World Wide Web to places where I saw unclad men engaged in interesting and acrobatic maneuvers. I thumbed the pages of greasy magazines at an adult bookshop. I reviewed a friend's collection of bootlegged Hungarian videotapes. I reread the footnotes of the Starr report. In the course of my research, I had some boyish fun--especially with the Starr report--but I did not find anything quite like this:

''In the race for state Senate, Bill Sodemann supports strong academic standards for our schoolchildren. Bill Sodemann supports competency testing of teachers. Bill Sodemann supports cutting income taxes for working families. And Bill Sodemann supports caps on spending to keep property taxes down.

''Call us . . . to find out more about Bill Sodemann.''

That is the script of a television spot that viewers can see this week in south-central Wisconsin, where Sodemann, a Republican, is running for an open state Senate seat against a Democratic state assemblywoman, Judy Robson. The ad was produced and paid for by Wisconsin Manufacturers & Commerce, the state's biggest business group. The Republicans' control of the state Senate hangs by a thread. Business and labor are thus pouring money into the opposing sides of three open-seat races, of which Sodemann's is one. In another of those contests, where Democrat Jon Erpenbach faces Republican Nancy Mistele, total spending seems likely to exceed $1 million. No, that was not a misprint: $1 million in a state legislative race.

To evade Wisconsin's campaign finance laws for state- level races, much of that money is being spent on so-called issue-advocacy ads like the one quoted above. According to the U.S. Supreme Court's 1976 decision in Buckley vs. Valeo, the First Amendment prohibits the government from regulating ''issue ads,'' which are distinct from campaign ads in only one way: They do not ''expressly advocate'' the defeat or election of any candidate by using such phrases as ''vote for.'' Note that the business group's ad carefully avoids urging anybody to vote for Sodemann. Buckley says that anyone can run as many such spots as he likes, without filing any forms or asking anybody's permission.

The state of Wisconsin does not like this rule. The state thinks that an ad that looks, walks and quacks like a campaign ad should follow the state's rules for campaign ads--meaning that the advertisers should disclose the names of their contributors. And so in 1996, after WMC launched its first big ''issue- advocacy'' campaign, the state's elections board demanded that the business alliance register with the board and disclose its supporters. The group refused, replying that the state, under Buckley, had no such power. Wisconsin sued. Meanwhile, as the case works its way through the courts, a defiant WMC is running a $400,000 issue-ad blitz again this year. ''We did not back down,'' says Jim Pugh, a WMC spokesman. ''There are other groups that would have reached a settlement, and we said no. We are continuing.''

In principle, the state's position is reasonable. WMC spends money collected from corporations, whose deep pockets (like those of unions) both Congress and the states have long sought to distance from politics. Further, demanding disclosure seems a reasonable way to expose the process to disinfectant sunshine. Finally, WMC's ads plainly are political in tone and intent. ''The defendants have played a word game to circumvent state law,'' argues the state, in its court filings against WMC. ''Constitutional mandates are not meant to be eluded through creative writing.''

In practice, though, there is a problem: Just how much speech, and which speech, can the state restrict? If Buckley's ''express advocacy'' doctrine no longer sets the boundary, exactly where will the boundary be?

By way of answering, Wisconsin engages in some creativity of its own. The state asserts the authority to regulate ads on a case-by-case basis. ''The state elections board has determined the ads at issue are express advocacy,'' writes the state. ''No further definition or explanation of the standard is required. What is required is for the court to determine whether it agrees or disagrees with the state elections board.'' In effect, the authorities will decide whether a particular ad passes muster, and if you disagree, see you in court. Wisconsin cites a precedent for this ''know-it-when-we-see-it'' standard: obscenity law. ''Federal courts have consistently applied the obscenity standard on a case-by-case basis,'' says the state, and issue ads are ''analogous.''

Here, stunned, one sits down and gulps for air. Never mind that obscene speech is not constitutionally protected, whereas political speech is at the First Amendment's very core. Never mind that obscenity law is notoriously vague and manipulable. Do we really want to live in a world where private people and groups don't know what they can say about politics until they get taken to court by politicians?

Wisconsin's audacious doctrine will, in time, be struck down, but it already has been alive long enough to provide some cautionary results:

* In Madison, the Wisconsin Grocers Association says that the threat of fines and litigation has deterred the group from running issue ads. ''We're not sitting on a pot of money,'' says Brandon Scholz, the group's president. ''So if I want to have our itty-bitty grocers' association go out and do an advocacy campaign on something important to our members, I'm constrained from doing that, for fear of being hauled in front of the elections board.''

* Eric O'Keefe, the president of Americans for Limited Terms, will soon be deposed by a Wisconsin state prosecutor who wants to find out whether the group placed its issue ads in 1996 for the ''political purpose'' of electing or defeating candidates. The Buckley rule lets regulators look no further than the black-and-white text of an ad; the Wisconsin rule seemingly allows the state to assess the intent of the advertiser. And so, for example, the state demands to know the name of ''each individual associated with the defendant who was involved in contracting for, creating, writing, and/or arranging for the radio advertisements.''

* Last week, Bill Sodemann's opponent filed a formal complaint with the state elections board against WMC for running the ad quoted above, among others. In 1996, several incumbent politicians were able to get court orders knocking WMC's hostile ads off the air in the crucial days before the elections. Last week, when I caught up with WMC's executives for comment, they were in the studio, cutting new ads that do not mention candidates, in case the Sodemann spot is suppressed by court order.

Now, issue ads are a problem, but not because they say things candidates don't like, and not because they let groups and activists spend lots of money on political arguments. They are a problem because they bypass candidates and parties, and so alienate politicians from politics. Last year, I listened as a leading gubernatorial candidate complained that so much money was being spent by independent groups on ''issue ads'' that he sometimes felt like a spectator in his own campaign. In the 1995-96 election cycle, the Annenberg Public Policy Center identified 29 groups spending a total of about $ 150 million on issue-ad campaigns; in the current cycle, the center finds 67 groups spending up to $330 million. American politics is being privatized.

In 1998, the country is reaching a decision point. What distinguishes Wisconsin is that it has arrived there first. The ludicrously complicated 1970s-style limits on contributions and political action committees and ''soft money'' and hard money have, taken together, done precisely nothing, zilch, to get private money out of politics. All they have done is push the money into the gray market of issue ads. How to deal with this? One option is to let more money back in the front door by raising contribution limits. Better still is the Rauch Plan: Eliminate all campaign finance rules except disclosure, but offer generous public financing to candidates who agree to shun private money. (For more on this excellent idea, see NJ, 3/29/97, p. 604.)

Another option is the Wisconsin Plan, which is more akin to what reformers want for the country as a whole: Crack down on private political ads that try--gadzooks!--to help or hurt political candidates. Wisconsin offers a preview of the results: Politicians are using legal threats to squelch antagonistic TV ads; prosecutors are investigating political activists to find out whether they tried to influence politics; and interest groups are becoming fearful of criticizing candidates by name. Thank Wisconsin, then, for reminding the rest of the country that criminalizing political speech, even with the best of intentions, inevitably produces less speech and more criminals.


Full archive of Jonathan Rauch's National Journal columns (at Reason magazine)
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