Avoiding 'magic words' allows advocacy groups to escape election rules
By The Associated Press
11.01.00
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COLUMBUS, Ohio — They're called the "magic words" of federal
campaign-election law, words and phrases whose presence in an election
advertisement determines whether a campaign group must follow rules on spending
limits.
Twice in eight days, the legal importance granted these words tripped
up a watchdog group trying to get a ruling against a campaign ad criticizing
Justice Alice Robie Resnick of the Ohio Supreme Court.
In two separate votes, the Ohio Elections Commission decided that the
ad, sponsored by the Ohio Chamber of Commerce, didn't violate campaign laws
because it didn't contain the magic words.
The significance of these phrases originates from the 1976 U.S.
Supreme Court ruling Buckley v.
Valeo. The court said free-speech rights trump any attempt to
limit a candidate's spending.
According to that ruling, if you use words such as "vote for,"
"elect," "support" or "cast your ballot for," you're conducting express
advocacy, or actively calling for a candidate's election or defeat, and
therefore must register as a political action committee and list your
donors.
But keep such words out of your ad and you're conducting issue
advocacy, educating voters without indicating how they should vote.
As a result, you aren't required to register or list contributors.
The deciding vote in the election commission's 4-3 ruling upholding
the Resnick ad was cast by Norton Webster, who said he read and reread the
Buckley decision before voting.
"I still believe that the Buckley case is controlling in this
particular situation," he said.
In the decades following the Buckley ruling, some federal courts have
followed a strict interpretation of the opinion, looking only for the magic
words when determining legality, said Steven Huefner, an Ohio State University
law professor.
Other courts have been more flexible, considering the total context of
an ad when looking for "an unmistakable advocacy for or against a particular
candidate," said Huefner, director of OSU College of Law's Legislation
Clinic.
"There's simply an open issue about whether express advocacy can be
found in something doesn't use Buckley's examples of the magic words," he
said.
The ad brought to the Ohio Elections Commission featured a blindfolded
lady justice who peeks at a pile of money on her scales. The ad says Resnick
received $750,000 in campaign contributions from trial lawyers and asks, "Is
justice for sale in Ohio?"
It was sponsored by Citizens for a Strong Ohio, a state Chamber of
Commerce affiliate that has spent at least $1.7 million on its campaign
criticizing Resnick. The chamber has long considered her anti-business,
pointing to decisions declaring the state school-funding system
unconstitutional and throwing out caps on damages people can receive from
lawsuits.
Resnick, a Toledo Democrat, is being challenged by Terrence O'Donnell,
an appeals court judge and a Cleveland Republican, on Nov. 7.
Don McTigue, a Common Cause-Ohio lawyer, argued that the ads
criticizing Resnick were designed solely "to influence the results of the
election."
William Todd, a Citizens for a Strong Ohio lawyer, maintains the ad
"did not contain the type of express exhortation and as a consequence falls
within the broader category of protected First Amendment speech."
Huefner said the U.S. Supreme Court eventually would try to reconcile
the two approaches that federal courts have taken following
Buckley.
"There's certainly a sense out there with each election cycle that
groups are becoming a little more sophisticated or daring in the sorts of
things they're able to accomplish without having to comply with the system of
campaign and financing and disclosure laws we've put in place," Huefner
said.
Update
U.S. Chamber sues to block review of Ohio campaign ads
Business group says TV commercials criticizing state Supreme Court justice were protected speech, shouldn't be target of state investigation.
01.16.01
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