There's not magic in business group's legal defense, high court saysDecision might affect investigation into TAB's ads
By Laylan Copelin, Austin American-Statesman
Thursday, December 11, 2003
There's nothing magical about the "magic words" test that the Texas Association of Business has been using to defend its secretly financed advertising campaign in last year's elections, the U.S. Supreme Court decided Wednesday in a separate case.
Upholding a new federal campaign finance law that enforces the broadest restrictions on campaign donations in nearly 30 years, the Supreme Court said that whether advertising uses magic words, such as "vote for" or "vote against," is "functionally meaningless."
That ruling cuts to the heart of the argument that the Texas business group has used against questions that it illegally used corporate donations to underwrite a $2 million advertising campaign in last year's state elections.
Travis County District Attorney Ronnie Earle has convened a grand jury to investigate the group's advertising.
Lawyers for the association argue that its mail pieces were issue ads, not political ads, because they did not include the magic words. The business group has refused to disclose the names of the corporations that financed the ad campaign in two dozen legislative races, saying that the information is protected by the First Amendment.
In a 300-page opinion, the Supreme Court endorsed the key provisions of the McCain-Feingold campaign finance law, including a ban on "soft money" and new rules limiting campaign-season political advertising.
In its opinion, the court also touched on the First Amendment defense and the magic words test, which can be traced to a footnote in a 1976 U.S. Supreme Court ruling.
"Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy," Wednesday's 5-4 opinion states. "That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad."
The justices noted that testimony indicated that political professionals seldom use the magic words, even in overt political advertising.
"And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election," the court said.
Earle and Austin lawyer Buck Wood, who sued the business association on behalf of two candidates whom the group opposed, hailed the decision.
"This opinion takes away the shadow that TAB has tried to put over Texas law," Earle said.
"It obliterates the magic words test," Wood added.
Andy Taylor, the association's lawyer, disagreed, saying: "The U.S. Supreme Court's decision upholds TAB's position on free speech for state election law. . . . This bolsters our argument and underscores the appropriateness of the 'magic words' test in cases such as TAB's."
Taylor argued that Wednesday's decision interprets a federal law — not state law — that was enacted after the association's ad campaign. The association will contend that state law, unlike the federal campaign law upheld by the U.S. Supreme Court, is vague and overly broad, he said.
Wood said the state law echoes the intentions of federal law. Outside of the Texas flap, John Samples, a member of the Cato Institute in Washington saw Wednesday's decision as a blow to First Amendment protections of free speech.
"Far from protecting political freedom," he said, "a slim majority of the court has now expanded the power of Congress to regulate and to harass individuals and groups who criticize incumbents."