WASHINGTON -- While Congress continues to dither over campaign finance reform, a fight is being waged at the level of the Federal Election Commission over a major loophole in federal campaign spending that now permits buying ads supporting or opposing a candidate without having the ads' cost charged against federal candidate limits.
Under existing law, such ads may be run as long as the ads don't "express advocacy" of a candidate, or oppose one. But what constitutes "express advocacy" has been interpreted differently by two federal circuit courts, and the Supreme Court in October declined to step in.
One court has ruled unless an ad includes what have been called "magic words," instructing voters to "vote for" or "elect" or "vote against" a specific candidate, it can say basically whatever it wants, even if the substance supports or is in opposition to a candidate. It is this interpretation under which so-called "issue advocacy" ads are run.
The other court has said that if an ad, when taken as a whole, can only be interpreted by a reasonable person as expressly advocating the election or defeat of a candidate, then its cost should be assigned to the candidate's spending limit, even if it ostensibly pushes or opposes an issue.
The refusal of the Supreme Court to intervene has led a conservative group favoring the "magic words" definition, the James Madison Center for Free Speech, to ask the FEC to drop an agency regulation that embraces the second interpretation. Common Cause, the self-styled public lobby, intends to oppose that action.
It was the "magic word" interpretation that enabled both major parties to run issue advocacy ads in the 1995-96 presidential campaign cycle. But the Democratic National Committee particularly used it in airing such ads touting President Clinton's policy positions but not calling explicitly for his re-election.
After the 1994 Republican takeover of Congress, the DNC after a frantic fund-raising effort by Mr. Clinton and Vice President Al Gore ran an estimated $32 million in such ads. Later, Mr. Clinton himself credited the ads with lifting him from the doldrums of that Republican congressional takeover and back to a commanding position in the polls against any prospective 1996 Republican presidential nominee.
While the two opposing sides on interpretation of "express advocacy" will be pressing their arguments in the context of conservative efforts to get the FEC to abandon its position, Don Simon, general counsel for Common Cause, says he fully expects that Congress will have to decide before the Supreme Court agrees to step in.
Provisions of the campaign finance reform legislation proposed by Republican Sen. John McCain and Democratic Sen. Russ Feingold, Mr. Simon notes, would include as tests both the "magic words" and the broader interpretation on whether an ad expressed "unmistakable and unambiguous support for or opposition to" a candidate, and whether such an ad appeared within 60 days of a federal election."
It is not clear why the Supreme Court declined to take up the dispute in light of conflicting opinions from two separate district courts. Mr. Simon speculates that the high court, knowing the whole matter of campaign finance reform is under consideration in Congress, may have concluded to wait until Congress acts, with the notion that such action might settle the dispute.
But, in an election year especially, there is no assurance that Congress will act on the already watered-down McCain-Feingold bill or any other. While House Speaker Newt Gingrich and Senate Majority Leader Trent Lott have promised that campaign finance reform will be brought up next March, there is little indication that solid Republican opposition is going to melt by that time. So the "express advocacy" loophole is likely to remain wide open, along with other flaws in existing law so obviously demonstrated in the 1996 campaign.
Jack W. Germond and Jules Witcover report from The Sun's Washington bureau.
Pub Date: 12/10/97