No election cycle would be complete without a little hysterical media coverage about spending on campaign advertisements. Stories about money in politics are an easy sell to the public, and the more money, the better the chyron. As Election Day 2014 draws nearer, the race is on again to find the cycle’s most eye-grabbing spending statistic. Emerging as an early frontrunner is a report from the Wesleyan Media Project (in conjunction with the Center for Responsive Politics) titled “Interest Group Advertising Pours Into Senate Races.”
USA Today reports on the Wesleyan numbers: “Competitive primaries, the fight for control of the Senate, and well-funded independent groups are putting midterm political advertising well ahead of the pace from 2012” The Boston Globe reports: “The Wesleyan Media Project and the Center for Responsive Politics found that a majority of television advertisements in current U.S. Senate campaigns are sponsored by outside interest groups, and most of them are paid for with ‘dark money’ requiring no donor disclosure.”
Perhaps ‘informed’ by the recent media coverage, Sen. Angus King (I-ME) cited the report in his opening statement at a recent Senate Rules and Administration Committee hearing, saying: “‘Independent’ outside groups have spent more than candidates on TV advertising (air time) in 10 of 12 competitive Senate races in the current campaign cycle – according to a new Wesleyan Media Project/CRP survey.”
Sensational statistics – and the ones highlighted above certainly qualify – are sure to attract attention. But, as Benjamin Disraeli allegedly observed, there are three classifications of falsehood: lies, damned lies, and statistics. A closer look at Wesleyan’s report suggests that at least part of the apparent rise in spending is due to Wesleyan’s conflation of issue speech with speech about the actual upcoming election.
Speech that is political, campaign, or election-related (formally known as “express advocacy”) advocates for the election or defeat of a candidate. Speech about “issues” does not advocate for the election or defeat of candidates, but may comment on legislation or public officials. This distinction is a hallmark of current law: for example, 501(c)(3) organizations such as the Alliance for Justice, the Heritage Foundation, and the NAACP may spend funds on issue speech, but may not engage in any political activity such as endorsing or opposing candidates.
According to Wesleyan, “In Senate races, 59 percent of interest group airings were sponsored by 501c3, 501c4 and 501c6 groups, which are not required to disclose their donors. In House races, the equivalent percentage is 57 percent.” If the “interest group airings” Wesleyan is referring to are express advocacy, this is not possible unless these 501(c)(3) groups are flaunting the law, and if Wesleyan and CRP are accusing these groups of illegal activity, they should be clear about that.
More likely, however, Wesleyan and CRP are counting issue speech in favor of positions that align with certain candidates as express advocacy in favor of that candidate. This is pretty silly when you think about it. Urging your representative to adopt a certain position is not the same as supporting a candidate. For example, a group advocating marriage equality might run ads pressuring a local Democrat to adopt a stronger gay rights position. This is not support for the Democratic candidate or opposition to the Republican candidate; it may be simply that the group thinks local Republicans cannot be persuaded on the issue. Similarly, a group advocating lower taxes might run ads pressuring local Republicans out of a feeling that local Democrats cannot be persuaded to their side. In both cases, the speech by the group is about an issue – marriage equality and taxes – not the candidate.
After all, government does not shut down in election years; there are still issues before Congress and the President that people and advocacy groups wish to comment on. If anything, elections bring an unusually high degree of attention to matters of public interest, so it should not be surprising that spending on issue speech rises around elections.
Predictably, media coverage of Wesleyan’s data makes no effort to distinguish speech urging the election and defeat of candidates and speech that merely relates to policy or mentions public officials. As a result, it will confuse more than clarify the ongoing debate about so-called “dark money” in politics. Perhaps this is what Wesleyan intended.
Disclosure of significant contributors to candidates and parties is tolerable in part because other avenues exist to advocate for one’s beliefs. If issue speech is subject to similar disclosure as primarily political entities like candidates, parties, PACs, and Super PACs, there will be virtually no outlet left for those who wish to contribute to causes without announcing their beliefs to their employers, nosy neighbors, and government officials.
For this reason – and as the courts have upheld – donors to groups that speak primarily on issues are kept confidential. After all, the First Amendment reads “Congress shall make no law… abridging the freedom of speech.” At the very least, this should mean that it is the government’s responsibility to ensure that regulatory burdens on speech are as narrowly tailored as possible to avoid restricting or chilling speech.
Imprecise definitions pose real dangers in areas as sensitive as First Amendment law. To take just one example, the recently proposed IRS rules for 501(c)(4) groups introduced an expansive and clumsy definition of “campaign-related political activity” that would have forced these groups to cease or severely limit a number of activities that are purely in the public interest, such as nonpartisan get-out-the-vote drives, hosting candidate debates, and informing their members about proposed legislation relevant to their cause. Understandably, over 150,000 individuals and groups from all sections of the political spectrum wrote the IRS to protest the proposed rules. In response, the IRS abandoned its original proposal and is revising it based on public feedback.
Ultimately, Wesleyan’s data may produce interesting insights into the world of advertising and persuasion, but it’s a poor place to begin a discussion about how to fix our country’s campaign finance laws. And considering that both the Wesleyan Media Project and the Center for Responsive Politics accept contributions from groups who do not disclose their donors (a decision CCP takes no issue with) while simultaneously advocating for greater disclosure, one can also question how sincere their concern about so-called “dark money” really is.
