Issue advertising in Michigan state campaigns
This page has representative samples of television "issue" advertisements from 2012, 2010 and 2008 state campaigns. The sample ads are accompanied by tables that show spending in the respective campaigns, and the amount of that spending that was outside the campaign finance reporting system. Since 2000, the state political parties and nonprofit corporations have sponsored more than $86 million worth of candidate-focused television advertisements that sought to define political candidates' suitability for public office. The MDP, MRP and those nonprofits have disclosed nothing about the sources who gave them the money to pay for the ads.
Michigan Supreme Court Election, 2012
Can't Run, sponsored by the Michigan Democratic Party Hardly, sponsored by the Michigan Republican Party
Hardly, sponsored by the Michigan Republican Party
Not for Sale, sponsored by the Michigan Republican Party
Streak, sponsored by the Michigan Democratic Party
How Could You? sponsored by Judicial Crisis Network
2012 Michigan Supreme Court Campaign Finance Summary
Oakland County 6th Circuit Court Election, 2012
The Rollstin-Carley Plan, sponsored by Judicial Crisis Network
2012 Oakland County 6th Circuit Court Campaign Finance Summary
Michigan Gubernatorial General Election, 2010
The Truth about Rick Snyder's Record at Gateway, sponsored by the Michigan Democratic State Central Committee
Priceless, sponsored by the Republican Governors Association
Proud, sponsored by the Michigan Democratic State Central Committee
Verdict, sponsored by the Republican Governors Association
2010 Gubernatorial General Election Television Advertising Summary
Michigan Supreme Court Election, 2010
Bob Young Supports Corporations' Ability to Buy a Judge, sponsored by the Michigan Democratic State Central Committee
iCompare, sponsored by the Michigan Republican Party
Mary Beth Kelly Failed as a Judge, sponsored by the Michigan Democratic State Central Committee
Judge Denise Langford Morris - Soft on Crime, sponsored by the Law Enforcement Alliance of America
Fair and Just, sponsored by the Michigan Republican Party
2010 Michigan Supreme Court Television Advertising Summary
Michigan Gubernatorial Primary Election, 2010
Main Street, not Wall Street, sponsored by Genesee County Democratic Committee
Count on Cox, sponsored by the Michigan Chamber of Commerce
Why support their ideas? sponsored by Michigan Taxpayers Alert
Crazy, sponsored by Americans for Job Security
2010 Gubernatorial Primary TV Summary
Michigan Supreme Cour Electiont, 2008
Dangerous Rulings, sponsored by the Michigan Chamber of Commerce
Out of Touch, sponsored by the Michigan Republican Party
The Sleeping Judge, sponsored by the Michigan Democratic Party
2008 Michigan Supreme Court Television Advertising Summary
Summary of Supreme Court Campaign Spending, 2000-2008
Questions and Answers about "Issue" Advertising in Michigan Election Campaigns
What is meant by the term, “issue” advertisement?
Issue advertisements don’t use language such as “vote for,” “vote against,” “support” or “defeat” a candidate. Rather than explicitly exhorting a vote for, or against, a candidate, most of these advertisements seek to define the character, qualifications, record or fitness for office of some candidate who is facing the electorate. Frequently these advertisements will urge the viewer or listener to contact the candidate and tell him what you think about one thing or another.
Why do the sponsors of these advertisements use an indirect approach to support or oppose a candidate?
The prevailing interpretation of the Michigan Campaign Finance Act has it that these advertisements are not campaign expenditures because they do not explicitly exhort a vote. Therefore, the expenditures do not have to be reported to the Department of State’s campaign finance reporting system, and the financial contributions to the sponsors that pay for the advertisements are not revealed in the public record. The contributors to the funds that buy the undisclosed candidate-focused advertising don’t want to leave their fingerprints on campaign records.
Isn’t this a distinction without a difference?
It is, indeed. Seldom will a candidate’s own advertisements say, “vote for me,” or “defeat my opponent.” Candidates’ own ads, which must be disclosed in the campaign finance reporting system, tout the sponsor’s positive attributes, or attack the character or qualifications of his opponent – just the same as an issue ad. You’ll see candidates’ ads and bogus issue ads telling you that a candidate is “fighting for you and making a difference.” Rarely will any contemporary campaign ads tell you how to vote, unless they’re talking about a ballot initiative.
Are the political ads I see really issue ads?
The vast majority of the ads you see during campaign season are not authentic issue advertisements. The Michigan Department of State is clinging to a definition from U.S. Supreme Court jurisprudence from the last century to exclude these ads from regulation. In the 1976 case of Buckley v. Valeo, the U.S. Supreme Court created a differentiation between express advocacy and issue advocacy by listing the sort of direct language that the Court considered to be a marker of a campaign ad: “vote for,” “vote against,” “support,” “defeat,” and the like. This language, contained in a footnote of the Buckley decision, came to be known as the ‘magic words’ test.
In 2003, Congress passed the Bipartisan Campaign Reform Act (BCRA), commonly known as the McCain-Feingold reforms. BCRA banned the use of corporate funds for advertisements that included the name or image of a candidate in the weeks immediately preceding a federal election, whether the ads contained ‘magic words,’ or not. This ban was successfully challenged by James Bopp, an attorney with the avowed goal of ending all campaign finance regulation, on behalf of Wisconsin Right to Life. In the 2007 case of Federeal Election Commission v. Wisconsin Right to Life, the U.S. Supreme Court said that corporations must be allowed to sponsor authentic issue advocacy. In so doing, the Court also acknowledged that there is such a thing as the functional equivalent of express advocacy that doesn’t necessarily include Buckley’s magic words, and which can be regulated. In WRTL the Court provided a test for distinguishing real issue advocacy from the functional equivalent of express advocacy. The test asks: Is there an authentic legislative issue at stake that is featured in the advertisement? Does the advertisement seek to mobilize citizens to lobby an officeholder who can act on the legislative matter? Or, does the advertisement merely take a position on a candidate’s suitability for office?
The next time you see a campaign advertisement sponsored by a committee other than a candidate committee, whether it’s on television or among the samples on this page, ask yourself whether the advertisement passes the U.S. Supreme Court’s test of authentic issue advocacy. And keep in mind, it is not authentic issue advocacy to incite citizens to lobby a federal officeholder about state taxation issues, as Americans for Jobs Security feigned to do with U.S. Rep. Pete Hoekstra before the 2010 gubernatorial primary election. Nor is it legal to lobby a judge or justice of the Michigan Supreme Court, as phony Supreme Court issue ads suggest. Judges are not lobbyable officials under Michigan law, and most citizens don’t want judges’ decisions subject to lobbying.
Why doesn’t the Michigan Department of State recognize the functional equivalent of express advocacy in regulating disclosure of campaign expenditures?
That is the question of the decade. The Michigan Campaign Finance Network has documented tens of millions of dollars worth of candidate-focused television advertisements that are the functional equivalent of express advocacy. But the Department of State has ignored these ads in its enforcement of the Michigan Campaign Finance Act (MCFA). The MCFA doesn’t even contain the words or concept of “express advocacy” or “issue advocacy.” The MCFA says campaign expenditures are “anything of ascertainable monetary value for purposes of influencing the nomination or election of a candidate.” The definition excludes any communication that “does not support or oppose a ballot question or candidate by name or clear inference.”
Again, when you view a third-party campaign advertisement, ask yourself whether it has the purpose of influencing the nomination or election of a candidate. Ask yourself whether you draw clear inference of support or opposition of a candidate.
Why does this matter? Isn’t this just one big celebration of the First Amendment?
In the 2010 case of Citizens United v. Federal Election Commission, the U.S. Supreme Court was asked to decide whether disclosure of contributors to groups that buy political advertisements should be limited to cases of express advocacy or its functional equivalent. In an 8-1 decision, the Court said disclosure may be required for any candidate-focused advertisements. The decision said, “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
You should assume that the interest groups and wealthy individuals who write five, six or seven-figure checks to the entities that aggregate funds to pay for candidate-focused advertising are rational economic actors. They are making investments in candidates and they will be seeking some sort of favorable public policy as a return on their investment. That is just the system we have. You should always ask yourself: Who is paying for this? What do they want? Why can’t I find answers to these questions?
Would disclosure diminish the First Amendment rights of contributors who currently benefit from anonymity?
The anonymous donors who fear disclosure say their rights to freedom of association with the fund aggregators who sponsor candidate-focused ads would be injured if their identities were revealed. This argument is derived from the 1958 Supreme Court case of NAACP v. Alabama, where the NAACP won the right to confidentiality for its members at a time when civil rights workers were being lynched and murdered in the Deep South. That situation is different in kind from a corporation that wishes to spend $1 million anonymously to elect a Supreme Court justice to hear its case in the appeals pipeline, and is worried that the target of its support may have to disqualify himself from their case if their campaign relationship is known. Or, from a case where a wealthy individual is willing to spend $1 million anonymously to elect a governor he believes will carry his policy water.
As the late Justice Louis Brandeis famously said, “Sunshine is the best disinfectant.” Association of campaign donors should be free and public.
Why is most issue advertising so brutally negative?
The easiest emotions to evoke among voters are fear and anger. Campaign consultants will tell you that it’s easier to drive their opponent’s negatives than it is to raise their own candidate’s positives. It’s very simple: negative campaign advertising works.
Is candidate-focused issue advertising in Michigan state campaigns some new scourge that was caused by the Citizens United decision?
Corporate-financed candidate-focused advertising has been a significant factor in the most contentious Michigan state campaigns since 2000. Practically speaking, Citizens United hasn’t changed much about Michigan state campaigns so far. The one element that appeared to be new in the 2010 gubernatorial primary campaigns was the large number of committees paying for the functional equivalent of express advocacy, not the amount they spent.
The Supreme Court’s decision to allow corporate independent expenditures does appear to have unleashed a torrent of new corporate spending in federal election campaigns. Unfortunately, disclosure of the interest groups that put the money in the black boxes that pay for advertisements in federal campaigns is not much better than that which is in effect for state campaigns.
If this advertising is outside the campaign finance reporting system, how can you say whether it’s a big problem or a little problem?
Throughout this decade, the Michigan Campaign Finance Network has been collecting political spending data from the public files of state television broadcasters and cable systems. MCFN has documented over $50 million worth of campaign advertising that was not reported in the Department of State’s campaign finance disclosure system.
As one example of the scope of this phenomenon: In the 2008 Michigan Supreme Court campaign, the candidates’ spending plus reported independent expenditures by PACs and the political parties totaled $3.7 million. MCFN documented $3.8 million worth of candidate-focused advertising by the Michigan Chamber of Commerce and the political parties that was not reported through the state’s campaign finance reporting system. Literally, over half the money in the 2008 Supreme Court campaign was off the books.
What am I supposed to do about this?
Tell your elected representatives this scam is destroying the integrity of our electoral processes and they need to pass laws to require disclosure of all donors who pay for candidate-focused political advertising.