Issue Ads Show 2014 Election Savvy As They Sidestep Campaign Laws

WASHINGTON -- When FWD.us , the lobby group founded by Facebook billionaire Mark Zuckerberg, launched its first foray into issue advocacy to support immigration reform, two of its ads immediately raised eyebrows. The spots run by two FWD.us subsidiaries praised Sens. Lindsey Graham (R-S.C.) and Mark Begich (D-Alaska) on matters completely unrelated to immigration.

Graham was applauded for his opposition to Obamacare and stimulus spending and for his support of the Keystone XL pipeline. Begich received plaudits for his support of drilling in Alaska's nature preserves and aid for the state's fishing industry.

While these issue ads seemingly had nothing to do with each other and nothing to do with immigration, they did share one commonality: They boosted two important immigration reform supporters who are up for reelection in 2014 -- and may face serious challengers.

Issue advocacy has long been a murky area in politics: Nonprofit groups can promote or disparage a member of Congress while educating the public about a political debate and yet sidestep campaign finance regulations. A Huffington Post review of issue advertising by national nonprofits that mentions individual members of Congress since the 2012 election found that 63 percent of these ads targeted a candidate up for reelection in 2014. Most of the spots did stick to the responsible group's core issue, unlike the FWD.us ads, but a significant number evinced a preference for targeting the politically vulnerable over the legislatively useful.

"These issue ads certainly blur the lines between political communication and advocating for different types of social welfare issues," said Gabriela Schneider, communications director of the Sunlight Foundation, a pro-transparency group that tracks such advertising.

Since the 2012 contest, according to HuffPost's review, the highest number of issue ads have been run for or against two of the most endangered incumbents in the 2014 midterm elections: Begich and Sen. Kay Hagan (D-N.C.). Begich and Hagan, both vulnerable Democrats in Republican-leaning states, have seen ads naming them from seven different groups.

Begich received praise from both the Council for American Job Growth , a FWD.us subsidiary, and the American Petroleum Institute , the nation's oil industry lobby. An ad by the anti-immigration group NumbersUSA casts Begich in a negative light, while ads from conservative groups Americans for a Strong Defense , Americans for Prosperity and Crossroads GPS and a joint web ad from the League of Conservation Voters and National Wildlife Federation called on Begich to take their positions on a variety of issues.

Hagan was urged to take various stances by Americans for a Strong Defense , Americans for Prosperity , the American Petroleum Institute , Crossroads GPS and the alliance of the League of Conservation Voters and National Wildlife Federation . Both the National Rifle Association and Mayors Against Illegal Guns ran spots seeking Hagan's vote during the debate over the Manchin-Toomey background check legislation.

Conservative groups like Crossroads GPS, founded by Karl Rove, and Americans for Prosperity, funded by the Koch brothers, are running issue ads now. But they spent huge amounts on direct electoral ads opposing Democrats in the 2010 and 2012 election cycles, and they're likely to begin running electoral ads against Begich and Hagan next year.

One reason that electorally active nonprofits like Crossroads GPS and Americans for Prosperity, organized under section 501(c)(4) of the tax code, spend money on issue ads is to meet their legal requirement to operate primarily in the interest of social welfare. Advertising on issues of social import, including current legislative debates, counts as a social welfare activity, while direct electoral appeals do not.

"So much of this activity can actually work to help a 501(c)(4) avoid being classified as engaged in improper political activity because this is seen as more of a social welfare function, educating the public about issues, than political intervention," said University of California-Irvine election law professor Rick Hasen.

But campaign finance watchdogs argue that nonprofits are really masking political appeals as issue advertising, ending ads that praise or pummel particular candidates with a request for viewers to contact those candidates.

Other groups, like the American Petroleum Institute, tend not to run electoral ads even closer to elections, but they still have both issues and candidates they want to promote. In those races in which they do not favor a candidate, they believe that an election, nonetheless, provides a moment to force members of Congress into a conversation on their concerns.

"We run ads in states where public officials are up for election and not up for re-election," Bill Bush, a spokesman for the American Petroleum Institute, said in an email. "But elections are a time when issues are discussed, so its important to be engaged during those periods and raise the volume on issues important to the electorate."

According to HuffPost's review, other top targets of issue advertising included Sens. Mark Pryor (D-Ark.) and Mary Landrieu (D-La.), both highly vulnerable incumbents in Republican-leaning states. Pryor saw ads from six groups; Landrieu saw ads from five groups.

Many of the issue ads run since the 2012 election have addressed matters being debated in Congress -- from the "fiscal cliff," to the nominations of Chuck Hagel to head the Defense Department and Gina McCarthy to lead the Environmental Protection Agency, to immigration reform. But perhaps the most common topic in the past seven and a half months was gun control.

The biggest spenders in the gun debate actually appeared to be more interested in influencing policy debates and near-term legislative votes than playing in the electoral arena.

Mayors Against Illegal Guns, the firearms control group funded by New York City Mayor Michael Bloomberg, ran 20 issue ads, the most of any group during the period HuffPost surveyed. Only six of those ads targeted senators up for reelection in 2014, and one senator, Pryor, received two ads, first pressuring him to vote for the background check bill and then condemning his eventual vote against it.

Lawmakers targeted by the gun-focused groups have fought back with their own spots.

Pryor launched his own television ad in response to the second Mayors Against Illegal Guns buy to tell Arkansas voters, "The mayor of New York City is running ads against me because I opposed President Obama's gun control legislation. ... I'm Mark Pryor, and I approve this message because no one from New York or Washington tells me what to do."

In response to an NRA ad, Sen. Joe Manchin (D-W.Va.), a primary sponsor of the failed background check measure who is not up for reelection until 2018, ran a spot touting his independence from special interests and politicians in Washington.

"I'm a lifetime NRA member, but I don't walk in lockstep with the NRA's Washington leadership, this administration or any special interest group," Manchin's ad declares. "West Virginia, you know me. I haven't changed. And you know I've always fought for our gun rights."

The money that Pryor and Manchin have spent in their own defense reinforces one key point: Issue ads can be politically threatening, packing as much punch as direct electoral appeals.