ISSUE ADS JUST A SHAM MOST COMMERCIALS A WAY TO CAMPAIGN WITHOUT DISCLOSURE.

Byline: Richard L. Hasen

In the days before Election Day, if you listened closely to any ad sponsored by the political parties or independent groups, chances are you noticed three things:

--The ad was intended to get you to vote for (or against) a specific candidate.

--You interpreted it as a call for you to vote for (or against) that candidate.

--The ad never came right out and told you to vote for (or against) the candidate.

What gives? Did the advertising genius who wrote the ad simply drop the ball?

Nothing of the kind. What you noticed was a clever ploy to evade campaign finance laws.

Under our existing campaign finance laws, courts and regulatory agencies consider such an advertisement to be an ``issue ad'' rather than ``express advocacy,'' simply because it omits those certain ``magic words'' like ``Vote for Smith'' or ``Defeat Jones,'' directing instead something like ``Call Jones and tell her what you think about her plan to change Medicare.''

The distinction is crucially important. Courts have upheld regulation of express advocacy, such as laws requiring disclosure of the names of contributors and those who contribute or spend money to influence elections. But sham issue ads have been essentially unregulated, leading to a surge in their use in recent years, rising from $150 million in the 1996 election to $275 million in the 1998 election, according to a study by the Annenberg Public Policy Center.

More ominously, a recent analysis by the Brennan Center for Justice at New York University School of Law found that outside groups - such as the National Abortion Rights Action League or the National Rifle Association - engaged primarily in running sham issue ads have spent more than either the candidates themselves or the major political parties in the most competitive races for the U.S. House of Representatives this year.

The stakes in regulating sham issue advocacy are enormous. Under federal law, for example, individuals may give only $1,000 to a candidate to run advertisements containing express advocacy, and corporations and labor unions can't give a penny. But individuals, corporations and unions may give unlimited amounts of money to pay for issue advertisements.

Sham issue advocacy also is exempt from most campaign finance disclosure laws. Countless sham issue ads in congressional, state and local races go by with no disclosure, leaving voters with little information to evaluate the credibility of the ads.

The issue of disclosure should be a no-brainer for Congress. Supporters of campaign finance reform like disclosure laws because they deter corruption and allow interested people to ``follow the money.'' Even many opponents of campaign finance contribution and expenditure limits point to disclosure as the best way to fight corruption. It is a sad testament to campaign finance reform efforts that even disclosure laws face stiff opposition in legislatures and the courts.

The legal argument advanced against disclosure of sham issue advocacy boils down to a claim that the Supreme Court in its landmark 1976 decision in Buckley vs. Valeo held it unconstitutional to regulate any issue advocacy. But Buckley never said that. Buckley was concerned that the particular federal disclosure law before the court was so vague that no advertiser could possibly know whether it covered him. Buckley does not foreclose legislatures from crafting clear disclosure laws.

What we need is a bright-line test - one, for example, that requires disclosure of who is paying for any television or radio ad within 60 days of an election, if the ad mentions a candidate. Critics contend that such a bright-line test would be constitutionally overbroad, capturing speech that is genuine issue advocacy unrelated to the election. They conjure up hypothetical ads like one pleading with an incumbent president running for re-election to intervene in a labor dispute.

Such speech, critics argue, is absolutely protected even from disclosure by the First Amendment.

The Supreme Court, however, has tolerated some overbreadth in the past in the name of necessary regulation. The question is how much genuine issue advocacy would be covered by a bright-line test. I am currently examining that question under a grant from the Brennan Center for Justice.

Preliminary data indicates that it is almost unheard of for a genuine issue ad to name a candidate in the midst of an election campaign. In the 1998 congressional election for example, only two ads that mentioned candidates in the 60 days before the election were viewed by researchers as being genuinely informational rather than promoting candidates. There is no reason to believe the 2000 election will show different results.

Political operatives have found the sham issue advocacy loophole and have exploited it big time. The trend is clear: Unless Congress and state legislatures act to regulate sham issue advocacy and the courts uphold the regulation, the loophole will eliminate what is left of campaign finance regulation in this country.