In the Eye of the Beholder: Shays-Meehan and Issue Advertisements

Allison R. Hayward

February 1, 2002

Most voters are familiar with issue advertisements. They resemble the following: “Congressman Leisure Suit opposes legislation to fix our problems. Call 1-800-UTO-PIAN and tell the Congressman you’re fed up with business as usual.” We see these advertisements usually (though not exclusively) before elections, and they may intend to secure the viewer’s good (or bad) opinion of the officeholder featured in the ad.

One goal set by campaign finance reformers has been limitation of so called “sham issue advertisements.” Reformers believe “political” issue advertising, in which a candidate is criticized for his or her stand on an issue in the weeks before an election, should be regulated like campaign advertising, which advocates the election or defeat of a candidate.

Shays-Meehan regulates issue advertising in several ways. First, Shays-Meehan prohibits corporations, unions, and tax exempt social welfare and advocacy organizations (also known as 501(c)(4)s) from broadcasting issue advertisements that feature a federal candidate within thirty days of a primary or sixty days of a general election, if the ad can be viewed by 50,000 or more voters for that candidate. So, a company, a union, or an advocacy group wishing to say something about a federal official up for election within this period must go through the red tape involved in organizing a federal political committee, and fundraising among a limited group of donors to fund the advertisement. Then and only then can they broadcast anything about a Congressman—good, bad, or indifferent.

Shays-Meehan won’t permit rapid response to legislative developments. It prohibits some issue ads, but it also insulates officeholders from criticism for legislation under consideration near an election. Some incumbent congressmen may like it, but the rest of us would do well to wonder how these restrictions serve our interests.

Shays-Meehan also treats ads that “promote or attack” a candidate for federal office as “federal election activity.” So defined, if political parties want to run these messages they must spend funds raised under the restrictive federal rules. This is also the pot of money parties must use for contributions to candidates, staff salaries, voter registration, voter identification, get-out-the-vote, and pro-party agitprop. Hard federal money is difficult to raise, so as far as the parties are concerned, their ability to say something about a federal issue is crippled.

Moreover, Shays-Meehan fails to elaborate on the meaning of “support or attack.” The authors apparently assume that the character of the message would always be obvious. While it may be the case that some issue ads lack almost all subtlety or nuance, when it comes to regulating otherwise protected political speech, the “support or attack” standard is simply too vague and uncertain.

One federal appeals court confronted this situation several years ago when it considered whether an advertisement from a Christian group that informed viewers of candidate Bill Clinton’s pro-homosexual agenda. The FEC argued that the advertisement, coming from a Christian group was intended to convey a negative message about the featured candidate. The court would have none of this, noting that the information in the advertisement could convey a positive impression to some viewers. The court characterized the government’s position in this case as knowing an election ad when it sees it, and rejected that evanescent standard on constitutional grounds. The “support or attack” standard in Shays-Meehan has the same problem, and would similarly be rejected by a court applying existing First Amendment precedents.

In the novel Molly Bawn, Margaret Wolfe Hungerford observed that “beauty is in the eye of the beholder.” Just so a message of support. Two voters could take entirely different lessons away from the same message. With such ambiguity, parties will steer clear from saying anything about federal issues. Since parties exist to unite voters of similar views behind candidates, it makes no sense to cripple them in this fashion. Coupled with its restrictions on criticizing a federal officeholder near an election, the Shays-Meehan will result in less information being made available to voters about their representatives. But perhaps to Congressmen Shays and Meehan, less accountability is a beautiful thing.

Allison R. Hayward is an attorney in California and an Adjunct Fellow of the Ashbrook Center for Public Affairs.