Advocate or Educate? The 'Magic Words' of Campaign Ads

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It's no secret that the nonprofit Small Business Action Committee endorsed Meg Whitman's campaign for governor back in March.

But are the television ads that the group is now running, seen all across the state, actually a message to vote against Jerry Brown?

The group's leader says no. Brown's backers say yes. And for now, it may not even matter... because the ads don't include any of what campaign attorneys call the magic words.

My story on this morning's edition of The California Report examines both the fracas over the SBAC ads and the larger issue of how to define what's known as express advocacy when it comes to political campaigns.

The term above is essentially a legalistic way of saying political efforts that clearly urge support or defeat of a candidate. And that's where we get to the so-called magic words... words such as:


The concept of magic words (and the action they imply, the closely related concept of express advocacy) is rooted in any number of legal fights across the country about campaign and political advocacy. But in California, they've effectively been the only distinction between a campaign political ad and an educational political ad for the better part of the last decade.

Why? Thank the backers of a controversial ad that criticized former governor Gray Davis in 2002 for his handling of the state's electricity crisis. Davis sued to force disclosure of the donors, and lost; the state appeals court wrote that "nothing in the explicit language of the advertisement unambiguously urged Gray Davis' defeat."

The ruling on the Davis ad allowed more flexibility than FPPC lawyers thought existed under federal court rulings; as such, they decided to limit enforcement of the advocacy vs. education issue to just the magic words -- words that new FPPC chair Schnur (a former top political strategist) says aren't even used in campaign ads, because they're so over-the-top.

Now, fast forward to earlier this year, and the landmark ruling by the United States Supreme Court in Citizens United v. FEC. The case has largely drawn attention because of the Court's ruling to strike limits on contributions from corporations for federal elections. But the ruling also hit on the issue of what language is, and is not considered express advocacy, by saying that the controversial movie Hillary was "an appeal to vote against" Hillary Clinton for president.

Translation: the nation's highest court seemed to be demanding more, not less, disclosure of donors.

"Even if you don't use those magic words, those campaign communications should be counted as if they're coming from the campaign," says Dan Schnur, the new chair of the state's Fair Political Practices Commission, on why Citizens United has made it worth taking a new look at the state's enforcement.

Schur is leading the FPPC into stricter enforcement. But in his first stab this summer, it became apparent that the political world would fight any attempt to do so this close to an election; Schnur says he's willing to wait for the changes to take effect after November 2.

"We will require a much broader disclosure of contributions," he said in a recent interview.

And while Schnur wouldn't comment directly, he gave every indication that such disclosure would apply to ads like the Brown critique ad from the Small Business Action Committee.

It's important to note that what's at stake here is disclosure in times like now, where the campaign is in full swing but it's still -- to some -- early; the regulations allow non-disclosure of education/issue ads only up until 45 days before an election.

SBAC Brown Ad

Joel Fox says that kind of change would be a mistake, because it would stifle political speech of those who fear retribution. In this case, he says some of his organization's business donors fear retribution (lawsuits, perhaps?) by Brown in his role as attorney general. And, again, Fox claims his intent is not to tell voters to reject Brown... but merely to point out Brown's record on the issue of jobs.

"They can make their own conclusions about what Jerry Brown might do when he's governor" said Fox.

As you might suspect, the Brown campaign thinks that's just not believable.

"It's sole purpose is to unfairly smear the name of the attorney general," says Brown gubernatorial campaign manager Steve Glazer. "It's a fraud, it's a fake group, it has nothing to do with small business."

Fox has likened the anonymity of his donors to the Bostonians who dressed as Indians to dump tea in the city's harbor, or to anonymous sources protected by journalists; others have taken him to task on the comparisons.

Bottom line -- the magic words are still the only standard for the 2010 election season. And even then, the lack of those words only shields donors until September 18, when almost all players agree that it's 'game on' for a campaign, and voters have a right to know who's ponying up the cash.

Update 9:35 a.m. Audio from this morning's story is below.

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About John Myers

John Myers is senior editor of KQED's new multimedia California Politics & Government Desk.  He has covered California politics for most of the past two decades -- serving previously as Sacramento bureau chief for KQED News and, most recently, as political editor for KXTV News10 (ABC) in Sacramento. He moderated the only gubernatorial debate of 2014, and was named one of the nation's top statehouse reporters by The Washington Post. Follow him on Twitter @johnmyers.
  • ‘Jj

    I agree, it’s not a campaign ad. It’s an attack ad, part of an opponent’s campaign…