Neutral Election Ads Aren’t Immune to Disclosure Rules

(CN) - Issue-focused election ads that do not explicitly support or attack a candidate must still disclose who paid for them, a federal judge ruled.

The Independence Institute, a nonprofit, libertarian organization, raised the challenge with respect to its endorsement of the Justice Safety Valve Act.

If passed by Congress, the bill would allow courts to impose criminal penalties below the statutory minimum sentences under certain circumstances. It is sponsored by Sen. Rand Paul, R-Ky., and Rep. Bobby Scott, D-Va.

A radio advertisement that the Independence Institute wanted to run ahead of the November 2014 elections urges voters to ask both U.S. senators from Colorado, Mark Udall and Michael Bennet, to pass the bill.

The ad opens by noting that "unfair laws tie the hands of judges, with huge increases in prison costs that help drive up the debt. And for what purpose? Studies show that these laws don't cut crime. In fact, the soaring costs from these laws make it harder to prosecute and lock up violent felons."

Ads that are "electioneering" in nature are subject to the disclosure requirements of the Bipartisan Campaign Reform Act (BCRA), but the Independence Institute said it should not have to disclose those who financially backed its spot because the ad is not pejorative toward Sen. Udall, who is up for election this year.

Independence Institute hoped to distinguish genuine-issue advocacy from express advocacy for a candidate, but U.S. District Judge Colleen Kollar-Kotelly in Washington ruled for the Federal Election Commission on Monday.

"This dispute can be distilled to the application of the Supreme Court's clear instructions in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit BCRA's disclosure requirements to express advocacy and its functional equivalent," the judge said.

In this landmark Supreme Court case, conservative lobbying group Citizens United sought to advertise a film called "Hillary: The Movie," a film critical of then-candidate Hillary Clinton.

The high court's decision made no distinction, however, between express advocacy and general-issue discussion in its landmark decision, Kollar-Kotelly said.

"Given that the Supreme Court did not determine that the 'Hillary' advertisements were the equivalent of express advocacy, its refusal to import the express advocacy limitation to the disclosure context was not dicta but a holding - a holding that ultimately encompasses the facts in this case," her 22-page opinion states.

The Independence Institute said its proposed radio ad differed from the ads in Citizens United because they do not express either a positive or negative opinion about either senator.

Kollar-Kotelly nevertheless called this "a distinction without a difference."

"Notwithstanding Citizen United's two references to the advertisements as pejorative, the language in Citizens United does not suggest that the pejorative nature of the advertisements in any way was important to the conclusion with respect to disclosures," she wrote. "The disclosures holding is neither explicitly nor implicitly limited to certain types of advertisements."

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