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Health & Fitness

New Elections Rule May Result In Anonymous TV Political Ads

On Monday, September 23, 2013, the Virginia Board of Elections will consider what constitutes "express advocacy" under Virginia's Campaign Finance Disclosure Act. The Board staff has recommended a "magic words" standard that can easily be evaded.

On Friday August 23, 2013, I appeared before the Virginia Board of Elections concerning my complaint against the Terry McAuliffe for Governor Candidate Campaign Committee and the Democratic Party of Virginia. (Statement to Board attached with article.)  My complaint was in two parts. 

First, I noted that the McAuliffe Campaign had failed to list in any report what person in the committee is authorizing campaign expenditures as required under VA Code § 24.2-947.4(C)(3).  The Board agreed that the missing information was required and will send a letter to the McAuliffe Campaign demanding that all previously filed reports be amended.

Second, I argued that television ads run by the Democratic Party of Virginia, which were apparently coordinated with the McAuliffe Campaign, should have stated “Authorized by the McAuliffe Campaign” or words to that effect.  The ads ran solely with the disclosure “Paid for by the Democratic Party of Virginia.”

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Much to my surprise, the Board of Elections staff took the position that a television ad which shows photos of Ken Cuccinelli, criticizes his policy positions, and ends with the statement "Ken Cuccinelli:  He's Focused on His Own Agenda, Not Us" does not expressly advocate the defeat of Ken Cuccinelli.  Therefore, no disclaimer of any kind is needed, according to the Board staff, and such an ad would not constitute an expenditure or contribution which would trigger reporting requirements.  .  

Specifically, the Board staff asserted that the following magic words must be used in an ad to constitute "express advocacy":  "vote for," "elect," "support", "cast your ballot for", "Smith for [Office]", "vote against", "defeat", "reject", or any variations thereof.  These words come from the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976).  For the reader’s information, any ad that doesn’t expressly advocate the election or defeat of a clearly identified candidate, i.e. issue advocacy, falls outside the statutory framework of Virginia’s Campaign Finance Disclosure Act. 

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However, Board of Elections counsel Joshua Lief noted that “express advocacy” has an alternative “reasonable interpretation” test.  This “reasonable interpretation” test is based upon language from Supreme Court Chief Justice John Roberts' plurality opinion in a case in which he noted that ads without the “magic words” can be “the functional equivalent of express advocacy” if the ad is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”  Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 451 (2007).

Noticeably absent from the legal analysis of the Board’s staff was any mention of Citizens United in which the Supreme Court ruled that “we reject [the] contention that [election law] disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 915 (2010).  In my opinion, this reasoning would insulate from Constitutional attack any decision in Virginia to adopt the “reasonable interpretation” test.

Please note that Virginia law places no limits on contributions, a policy which more directly implicates First Amendment concerns, but merely requires parties running political television ads to identify themselves.

Board of Elections Chairman Charlie Judd moved to table a decision on whether to adopt the “magic words” standard and said he wanted the Board members to view the ad in question to discern for themselves if it expressly advocates the defeat of Ken Cuccinelli.  The Board will also consider at the next meeting whether to adopt the "magic words" test in Virginia or the "reasonable interpretation” test.

In my opinion, adoption of the "magic words" test could effectively spell the end of Virginia’s disclosure laws and usher in an era of anonymous attack ads on television.  Any Super PAC could easily draft an ad without using these words.   

The next board meeting is September 23, 2013 at which I will argue against adoption of the "magic words" test and attempt to ensure that Virginians have a right to know who is running political ads on television.  

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