STEVE INSKEEP, HOST:
Let's consider now some of the very faint lines between different kinds of political ads. Some are designed to focus on a specific candidate getting elected, others are meant to focus only on issues. And the distinction between those ads is important because it affects the way that outside money groups can pay for them, what the rules are. For the rest of us, though, it seems to be getting harder and harder to tell these ads apart. NPR's Peter Overby reports.
PETER OVERBY, BYLINE: The last time the Supreme Court looked at this question was in the Citizens United case in 2010. Citizens United, a tax-exempt social welfare organization, argued that its movie, essentially a character attack on then-Senator Hillary Clinton, was about not about her presidential bid. Here's one excerpt from "Hillary: The Movie."
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LARRY KUDLOW: The thought here is it's all politics. Parcel out favors to individual groups, whether it's unions here or the farm bloc there.
MARK LEVIN: She is steeped in controversy, steeped in sleaze. That's why they don't want us to look at her record.
OVERBY: In legal parlance, the Citizens United lawyer argued that this was not express advocacy against Clinton's candidacy. But the Supreme Court didn't buy it, as Justice Anthony Kennedy explained on that decision day.
JUSTICE ANTHONY KENNEDY: We reject that argument. The film is quite critical of Senator Clinton. We agree with the trial court that the film is susceptible of no other interpretation than to argue to the public that she lacked qualifications for office.
OVERBY: So if that message was clearly political to the Supreme Court, how about this one?
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UNIDENTIFIED WOMAN: Taking credit for others' hard work, typical Washington. No matter how Obama spins it, gas costs too much. Tell Obama, stop blaming others and work to pass better energy policies.
OVERBY: This is an issue ad as defined by federal election law. It comes from Crossroads GPS, the social welfare organization co-founded by Republican strategist Karl Rove. Crossroads GPS president Steven Law says the group is in for the long haul, not just the election, and it's out to change policies in Washington.
STEVEN LAW: But you can't achieve that merely by producing the TV equivalent of a policy white paper. You need to reach viewers viscerally, and so we spend a lot of time figuring out how to explain issues in ways that get viewers to be persuaded, and also to get fired up to take action.
OVERBY: Crossroads GPS has been one of the most prominent political advertisers this spring. It's run ads attacking President Obama on a wide range of issues. The donors who finance those ads get to stay anonymous. That's a big advantage for Crossroads GPS and other social welfare organizations or 501(c)(4) groups, as they're known in the tax code.
Political scientists say the line between issue ads and express advocacy has been almost erased. Not so many years ago...
DEBORAH JORDAN BROOKS: We could more easily put particular ads into buckets.
OVERBY: This is Deborah Jordan Brooks. She's a government professor at Dartmouth College and studying political attack ads is one of her specialties.
BROOKS: Ads that are largely issue-based often have a real personal zinger right in there, and it may just be one line. Or ads that, you know, really have a lot of personal zingers in there still have some issue content.
OVERBY: Campaign finance lawyer Robert Kelner says he's not surprised by the vagueness. Ultimately, he says, it's all about free speech.
ROBERT KELNER: And the price that we pay for the benefits of the First Amendment is that we have to essentially give a pass to some ads that you and I would probably agree look an awful like a campaign ad.
OVERBY: But it still matters which side of the line a group is playing on. And here's a new paradox about that: a federal judge recently ruled that for certain types of issue ads, 501(c)(4)s have to name the donors. The ruling hasn't taken effect yet. But for now, some groups are switching to express advocacy ads. Kelner says that's risky because social welfare organizations can't make politics their primary purpose.
KELNER: We don't know where the line is. We don't know how many ads the (c)(4) could run before it would jeopardize its (c)(4) status.
OVERBY: And without 501(c)(4) status, an organization would lose the thing that gives it so much political clout, the ability to take anonymous contributions.
Peter Overby, NPR News, Washington.
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