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In the closing weeks of the 1996 election, Montana's airwaves were flooded with the following television advertisement:

Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. Yellowtail's explanation? He 'only slapped her,' but her nose was broken. He talks law and order, but is himself a convicted criminal. And though he talks about protecting children, Yellowtail failed to make his own child support payments, then voted against child support enforcement. Call Bill Yellowtail and tell him we don't approve of his wrongful behavior. Call (406) 443-3620.

The anti-Yellowtail ad, financed by an organization cryptically named Citizens for Reform, was a classic instance of contemporary "issue advocacy." It was an issue ad not because it discussed any issues, but because it avoided "express advocacy" of either Democrat Yellowtail's defeat or the election of Rick Hill, Yellowtail's Republican opponent, in the race for Montana's seat in the House of Representatives. The ad featured harsh criticism of Yellowtail by name, was broadcast on the eve of the election, and was paid for by an organization that spent $2 million supporting Republican candidates in elections across the country. The ad contained an electioneering message but, because it carefully refrained from any call to vote against Yellowtail or for Hill, the ad fell short of express advocacy and was, instead, an issue ad. As a result, it was exempt from regulation under the Federal Election Campaign Act (FECA) – even the provisions requiring the sponsor to disclose who paid for the ad.


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