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The
Case for Issue Advocacy
By Charles T. McConville, Director, P.a.C.E.
In April, the Ohio Elections Commission dismissed
a complaint against the Ohio Chamber of Commerce and Citizens for
a Strong Ohio (CSO) concerning last fall’s judicial issue advocacy
campaign. To anyone familiar with the history of cases involving
issue advocacy in the United States, this result comes as no surprise.
In all, that action marked the fourth unsuccessful attempt to subject
CSO to unconstitutional regulation.
While last fall’s campaign tone was the subject of some criticism,
it drew attention to several areas. Whether we want to believe it
or not, judicial elections are a political process, one which has
long been dominated by trial lawyers and labor unions. Business
chose to make its voice heard because of the activist majority on
the court – a block of four of seven justices – that has
been causing severe damage to the public policy and business climate
in Ohio. No one can argue that awareness of the Ohio Supreme Court
has reached a new level – along with the awareness of the importance
the court has to a wide spectrum of groups, including labor, business,
and trial lawyers.
Much has been said about the desire to avoid more heated battles
over the court. There are at least three ways to do this. The first,
and perhaps best way, would be for the court to curb its tendency
to intervene in matters of public policy which are the domain of
the legislature. After all, the best way to instill public confidence
in the judiciary is not to stifle criticism, but to have all sectors
of the public believe they are being treated fairly.
A second alternative would be to move the judicial selection process
away from elections to a system of appointment with input from many
groups. This would certainly end the overt political pressure of
political campaigns and financial contributions. Such a change,
however, would make the politics more subtle as interests jockey
for perceived influence in the selection process.
Finally, there has been the suggestion that there should be curbs
on issue advocacy. This idea runs afoul of the fundamental protection
afforded to free speech under the law. In a federal court case about
issue ads several years ago, an appeals court put it this way: “The
fact that the commercial specifically identified Clinton and Gore
and was openly hostile did not render the commercial express advocacy,
because it lacked the essential content of express advocacy - direct
exhortation to the public to vote against them.”
While critics of issue ads decry them as thinly veiled campaign
commercials, their legitimacy has been upheld in jurisdictions around
the country. As a communications vehicle, they have been employed
by organizations of every philosophical position, including the
Sierra Club, the AFL-CIO, the National Organization for Women and
the National Rifle Association.
Although many organizations ran issue advocacy spots in Ohio last
year, only CSO and the U.S. Chamber of Commerce were the targets
of election complaints. This may suggest that the complaints had
more to do with the philosophical positions of the petitioners –
Common Cause and the Alliance for Democracy – than their legitimate
chances of success in seeking regulation of this activity.
The Alliance for Democracy is not garden variety “good government”
organization. Its mission, “ to end the domination of our politics,
our economics, the environment, our information and our culture
by large corporations . . .,” takes aim at the engine of American
commerce. Among its initiatives have been a campaign for single-payer
(government run) health care, protesting the World Trade Organization
meetings in Seattle, and a call for government-funded federal campaigns
which would deny the rights of interest groups to participate in
campaign politics.
Not that liberal extremists are the only ones seeking to limit free
speech: proscriptions of issue advocacy are a major component of
the McCain-Feingold bill, even though they are widely perceived
to be unconstitutional. Business advocates should note that one
of the principal opponents of issue ad restrictions is the AFL-CIO,
which spent more than $40 million on issue advocacy spots in 1996.
The bottom line is this: there are many persons who would like to
restrict the speech rights of associations that represent the business
point of view, while not applying the same level of scrutiny to
other interest groups. Business advocates should not eschew the
use of issue advocacy or any other communications vehicle available
to other interest groups. We should not be held to a different standard
than other participants in the political arena. Only through vigorous
debate and the expression of a wide variety of views can the meaning
of the First Amendment be upheld.
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