Well, except that the Supreme Court decided in 1976, in Buckley vs. Valeo, that it actually could be considered an "issue ad" and not a clear-cut advocacy ad for a candidate -- since it didn't expressly say words like "vote against" or "defeat" -- despite its clear message that Rep. Diddler should be turned out of office.

A study to be released Thursday by New York University Law School's Brennan Center for Justice confirms what most Americans already can figure out: that this Supreme Court ruling is a joke to a political establishment that exploits it ruthlessly.

The study analyzes 2,100 TV political ads from the 1998 House and Senate elections -- ads costing $180 million, run in the top 75 media markets and reaching an estimated 80 percent of the American people. The ads were viewed by a team of "coders" -- five undergraduates, a professor and a graduate student from Arizona State University, as well as the Brennan Center authors of the study -- who assessed whether an ad was an "issue" ad, or if it was just playing one on TV and actually promoting or dissing a particular candidate.

The study, "Buying Time," concludes that the argument that "issue ads" are a way for the common Joe to voice his opinion is laughably not the case. Instead, the ads are a way for both parties and big special interest groups to slip by campaign finance laws and pour money into elections.

The definition of what constitutes an "issue ad," as established by footnote 14 in the Buckley case, is a vague one that falls whenever an ad does not use the "magic words" indicating true advocacy -- specifically, "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat" and "reject."

Because "issue ads" supposedly don't advocate for one candidate, they are not subject to the same Federal Election Commission regulations, such as disclosure requirements or financial source restrictions. The abuse of this power -- the ability for moneyed interests to flood markets with these ads without any accountability -- has been an increasing cause for alarm among campaign finance critics.

"The Supreme Court felt that Congress, in its campaign finance reform legislation from 1974, used way too broad a definition of political communication," says Thomas Mann, a senior fellow at the Brookings Institution. "Trying to set up an alternative, they used a footnote in a way that was very ambiguous. Creative entrepreneurial political consultants saw an opening, while other courts have taken footnotes as the literal truth."

"The Supreme Court has a naive view of human communication," says Kathleen Hall Jamieson, dean of the Annenberg School of Communication at the University of Pennsylvania. "Most communication is implicit, not explicit, and we all know that. Whether or not a political ad uses the [magic] words, any reasonable person interprets the ad to mean vote for or against a candidate. The Supreme Court is made up of lawyers, who are by definition literalists, and they failed to understand that.

"Somehow," Jamieson goes on, "the Supreme Court concluded that if it walks like a duck, talks like a duck, swims like duck and looks like a duck -- but it doesn't say 'vote for' or 'against' someone -- it's 'issue advocacy.'"

The Brennan Center study attempts to poke demonstrable holes in the Supreme Court's definition of "issue ads." For instance, according to the study, only 4 percent of the ads run by candidates themselves ever use the obvious "magic words" -- "vote for" or "defeat" -- though they are completely allowed to do so. This demonstrates, according to the study, that deeming an ad as "advocacy" merely because it contains the key words is too narrow a definition.

"This report proves once and for all that the 'magic words' test is nothing but legal alchemy," says E. Joshua Rosenkranz, president of the Brennan Center for Justice. The definition of an issue ad "may have made sense to the Supreme Court when it made it up in 1976, but this report proves that it makes no sense in today's political environment."

"The key point to me from this study is that even people who use hard money, and thus could say 'vote for' or 'vote against' choose not to," observes Rep. Christopher Shays, R-Conn., the leading advocate for campaign finance reform among House Republicans. "It verifies the fact that there's no restraint for 'sham' issue ads. It hits the nail on the head that sham issue ads are campaign ads."

"Courts have said almost with one voice that issue discussions are protected by the First Amendment," counters Joel Gora, a professor at Brooklyn Law School and special counsel for the American Civil Liberties Union on campaign finance reform, including during the Buckley case. "That's the whole Brennan Center thrust, that you need to register with the government to criticize the government."

The Brennan Center study indicates that 89 percent of the 57,817 issue ads shown were run by the two major political parties and eight national organizations representing a variety of political ideologies -- the AFL-CIO, the Business Roundtable, People for the American Way, Americans for Job Security, the Sierra Club, the National Right to Life Committee and the American Association of Health Plans.

"The people who have opposed reform have created this fiction that what reform will do is silence ordinary citizens," says Rosenkranz. "What we've demonstrated is that those people are an absolute fiction. We found not a single ad that we could ID as being run by a ma and pa in some locale."

While agreeing that issue ads almost always clearly promote one candidate over another, San Francisco attorney Joseph Remcho says he disagrees "with the Brennan Center's premise that that's a bad thing." Remcho is a specialist in the First Amendment and constitutional law and is representing a group of plaintiffs fighting Prop. 208 -- a California campaign finance law setting contribution and spending limits -- and, he argues, "It's a good thing to have as much as possible in terms of speech out there. If there are groups who support candidates because they agree with them on issues and want to focus their energies on advocating for that candidate, that's good."

Interestingly, some opponents of the campaign finance reform laws favored by Rosencranz and Shays say that they share the disdain for issue advocacy groups and their products -- though they lay the blame for the ads at the feet of campaign finance reform laws.

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