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House approves bill outlawing certain stealth election ads

Tuesday, May 19, 2009 by Austin Monitor

Stealth electioneering campaigns are out under a bill that Rep. Todd Smith (R-Euless) passed out of the House Monday evening.

The Federal Elections Commission regulates interest group express advocacy, which would be advertising mailers, commercials or phone banks that expressly advocate for or against a particular candidate. Historically, these ads were distinguished by what is called a bright-line “magic words” test.

Those magic words, like “vote,” “elect,” or “defeat,” are clearly telling the audience what to do during the election.

What has sprung up in recent years, however, has been high-dollar candidate campaign attacks disguised as “issue advocacy,” which is supposed to focus only on an issue, but instead is clearly designed to support one candidate over the other.

In the case of the landmark Federal Election Commission v Wisconsin Right to Life case, the US Supreme Court, led by Chief Justice John Roberts, said that attacks on candidates, disguised as sham issue ads, went beyond the bounds of free speech.

According to the decision, an issues ad crosses the line into express advocacy when “an ad is the functional equivalent of express advocacy only if the ad is susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Smith’s bill, House Bill 2511, is intended to accomplish two things: clarify definitions within the existing campaign finance structure; and make stealth electioneering ads a prohibited activity.

Conservative groups, worried about their right to free speech, flooded the offices of conservative lawmakers like Rep. Phil King (R-Weatherford) and Rep. Larry Phillips (R-Sherman) with phone calls. King, representing the interests of a number of those groups at the back microphone, questioned the measure.

“They’re simply saying that they’re very concerned that this will limit their right to free speech and cut to the heart of what (Justice Antonin) Scalia called the right to criticize the government,” King said. “This will limit their ability to come out and talk about issues, even to send out a scorecard or a mailer.”

Association scorecards, which typically measure how closely aligned a lawmaker is to the group’s values, are exempted from the bill, Smith said.

In questioning the bill, Rep. Ken Paxton (R-McKinney) asked why corporations and unions were targeted while limited liability partnerships were excluded from the bill, which could be used as a loophole.

The parameters of the state bill simply mirrors current federal law on the issue, Smith said. He added that groups could still talk about issues, and unions could still present express advocacy ads, even up to a week before an election, as long as the money was properly segregated and the group responsible was noted.

The bill passed the House on a vote of 71-63.

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