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SPOTLIGHT
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What's at issue with express advocacy?

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Martin Hawver<br>

Martin Hawver

Your mother probably told you that you can tell a lot about a person by the friends that he or she has.

That works, pretty well, for election politics, and you quickly get the idea that if, say, paint manufacturers contribute heavily to a campaign, they probably want something painted.

That "known for your friends" that mom talked about is easy when you can tell who the friends are and what their interests are.

But that is likely to change this election cycle.

What if those paint manufacturers didn't say, "We want Jane elected because she wants everything painted," but instead said, "We are a nonprofit association of mothers who don't want our kids to see filthy graffiti on bathroom walls and we like Jane because she doesn't either."

Does the campaign shift from people just wanting to sell more paint and people (mothers are always good) who want to protect children from graffiti that nobody wants kids to see?

That's the difference, in very clear terms, from "express advocacy" -- elect Jane so the government will buy more paint -- to "issue advocacy": we are against graffiti and so is Jane, isn't that nice?

That blurry misdirection by the paint folks -- no there isn't a big paint lobby in Kansas, but it makes for a cool example -- is the sort of issue that the Kansas Governmental Ethics Commission is likely to be sorting out in the coming weeks.

Already a law firm has asked the commission to say whether a group (say, the anti-graffiti nonprofit organization sponsored by the paint makers) can run those ads and not show up as contributors to Jane's campaign and not have Jane have to report the group -- and its contributors -- as having made a campaign contribution to Jane.

Now, if the group just bought an ad and said to vote for Jane, that would be "express advocacy" of the election of Jane.

But if the group's ad said that among people who support the issue of painting over graffiti is, well, son of a gun, Jane! -- then that's "issue advocacy."

Of course, if Jane reads the ad, or hears it on the radio or sees it on TV for the first time, and was completely surprised by it, well, she wouldn't be responsible for it, and nobody would have to say who paid for the ad.

That happens. In fact, it happened this year, when some legislators were surprised to see their names in ads that said that the legislators did good things for children.

But the element of surprise -- and possibly accounting for the cost of the ad and who ponied up the money for it -- changes if Jane helped write the ad or consented to being included in it.

What's that? Is it "express advocacy" for Jane, or is it an issue ad in which Jane just happened to be included?¬  And at what point does anyone find out it was the paint makers who want Jane elected?

It gets complicated. And what if the anti-graffiti issue is also being supported by the paintbrush makers? And what if the paintbrush makers want to use polar bear fur for their paintbrushes or the paintbrushes are made by children in China? Do we ever get to the bottom of who wants Jane elected and why?

There isn't a hard and fast rule now, and the Ethics Commission is likely to be deciding what "express advocacy" is and what "issue advocacy" is this summer. It's apparently going to be one of those "we'll know it when we see it" type deals.

That's the issue of transparency. So we can see all the moving parts, figure out who Jane's friends are, and whether we like Jane's friends and whether we vote for her.

It's getting complicated, this freedom of speech business as it applies to campaigning.

Syndicated by Hawver News Co. of Topeka, Martin Hawver is publisher of Hawver's Capitol Report. To learn more about this statewide political news service, visit the Web site at www.hawvernews.com.

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