A U.S. Supreme Court ruling last summer on political advertising has caused the state Campaign Spending Commission to evaluate whether it can regulate ads by corporations, labor unions and interest groups that do not expressly call for the election or defeat of candidates.

The court, citing the First Amendment right to free speech, ruled that advertising restrictions in a federal campaign-finance law were unconstitutional if applied to issue advocacy in the weeks before elections.

The ruling protects ads, even those that appear blatantly partisan, unless they are direct appeals to vote for specific candidates or ballot questions.

The state Campaign Spending Commission is expected to decide at a meeting today how to apply the court's ruling in Hawai'i.

Barbara Wong, the commission's executive director, has recommended that the commission dismiss a complaint against several fishermen who took out full-page newspaper ads last November critical of the Lingle administration without registering as a political action committee or following the advertising criteria in the state's campaign-finance law.

LOSS OF DISCLOSURE?

The commission had initially determined in April that the ads should be regulated as political advertising and called for further investigation.

Wong said if the commission adopts her recommendation, which was made reluctantly based on the court's ruling, it would mean that interest groups would be free to spend unlimited amounts of money on these types of ads without any regulation.

"You're going to have these ads appear in the paper and it's not going to say who is behind it," Wong said. "You're going to lose that disclosure."

Most ads for political campaigns in Hawai'i are paid for by candidates or political action committees, and the spending is disclosed in reports to the Campaign Spending Commission. But there are examples of interest groups taking out ads or doing advocacy that is issue-oriented but appears to favor specific candidates.

In 2002, shortly after the ad restrictions in the federal campaign-finance law took effect, Hawai'i Right to Life went to federal court to get an exemption from the law so it could run radio and newspaper ads in the special elections to replace the late U.S. Rep. Patsy Mink. The ads discussed the need to appoint anti-abortion federal judges and identified John Carroll, a former Republican state senator, as a "pro-life candidate."

The Supreme Court, since its landmark ruling in Buckley v. Valeo in 1976, has upheld political contribution limits, reporting requirements and some advertising restrictions under the belief that money can have a corrupting influence on election campaigns. But the court has consistently been reluctant to limit political spending by interest groups — or people who use their own wealth — because of the First Amendment.

A federal campaign-finance law passed by Congress in 2002 prohibited corporations, labor unions and some interest groups from advertising that mentions political candidates 30 days before primaries and 60 days before general elections. The restriction does not apply to separate corporate or union political action committees, which are required to disclose contributions and spending.

GUIDELINES ISSUED

The Supreme Court in 2003, after a legal challenge, upheld the ad restrictions as they applied to express advocacy that helps specific candidates or ads that were the functional equivalent.

But in June, in Federal Election Commission v. Wisconsin Right to Life, the court ruled 5-4 to distinguish issue advocacy from express advocacy on First Amendment grounds. The ruling provided guidelines for determining the difference, finding that ads are issue advocacy unless there is no reasonable interpretation other than the ads are an appeal to vote for or against specific candidates.

The ruling found that, when deciding which ads should be protected, "the court should give the benefit of the doubt to speech, not censorship."

Ira Rohter, a political science professor at the University of Hawai'i-Manoa, said it is obvious that many issue ads are really partisan appeals for candidates and should be regulated so people know who is attempting to influence elections. "I don't understand this splitting of hairs," he said. "I guess, I ask, is there a certain concept called common sense?"

But state Sen. Sam Slom, R-8th (Kahala, Hawai'i Kai), said restrictions on issue ads intrude on free speech and do "a disservice to individuals who can raise legitimate issues."

NOT ALWAYS CLEAR

The Campaign Spending Commission has struggled with the difference between issue advocacy and express advocacy in the past and, like the Supreme Court, has sided with free speech over regulation.

In a 1998 advisory opinion, published during the controversy over same-sex marriage, the commission found that informational ads are protected by the First Amendment even when the distinction from express advocacy appears marginal.

"The disturbing consequences of this distinction is that it makes it possible for electioneering to proceed under the guise of education, thereby exempting it from the disclosure, disclaimer and contribution limit restrictions put in place to serve the public's interest," the commission found. "An organization might publish, 'Candidate X favors heterosexual marriage,' rather than 'Vote for candidate X, she favors heterosexual marriage.'

"By publishing the former as an informational ad, the organization could avoid all requirements of public accountability associated with the express advocacy of the latter. We are not certain that the public's interest is served by this distinction, but are required to acknowledge and accommodate it."

The complaint before the commission today involves full-page ads in The Advertiser and the Star-Bulletin by "Hawai'i's Concerned Fishermen and their Ohana" two days before last November's elections. The ads stated that "the current state administration does not support fishing in Hawai'i" and claimed the state Department of Land and Natural Resources mismanages ocean resources and favors Mainland and special interest groups over local fishermen. The ad urged fishermen to vote to make a difference.

Patricia Tummons, editor of the newsletter Environment Hawai'i, filed a complaint alleging the fishermen failed to register as a political action committee, failed to include their address in the Star-Bulletin advertisement, and failed to file disclosure reports.

WAS RULED POLITICAL AD

The commission initially found in April that the timing of the ad two days before the election, the statement about the "current administration," and the call to vote made it a political ad subject to regulation even though it did not mention Gov. Linda Lingle and Lt. Gov. James "Duke" Aiona.

The ad was paid for by several fishermen, including those with ties to the Western Pacific Regional Fishery Management Council and the Pacific Islands Fisheries Group.

Some of the fishermen had been critical of fishing regulations by the Department of Land and Natural Resources and the department's leadership under Peter Young, who was not confirmed for another term as director last session by the state Senate.

Roy Morioka, the former chairman of WESPAC, said the fishermen decided to take out the ads after hearing a department official say fishermen did not vote.

"It was just a bunch of guys sitting around having a few beers, saying, 'Are we going to let that happen?' " Morioka said.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.