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.

Ed Ramey, a Denver attorney who specializes in election law, says Colorado just experienced "a huge influx" of issue advocacy groups during the last election. But, he says, "what brought those groups into Colorado were the imposition in '96 of low limits on campaign contributions." In a state law later declared unconstitutional because of the efforts of Ramey and a few others, "campaign finance reformers imposed unrealistically low contribution limits on candidates, parties and PACs," Ramey says -- a $100 maximum donation per person for state legislative races, $500 to statewide candidates, $2,500 for parties per election cycle and $250 per PAC. Suddenly, Ramey says, "the money that once went to candidates fully disclosed or to parties fully disclosed, now went to issue advocacy groups -- undisclosed."

"These issue advocacy groups are to some extent the creature of campaign finance reform itself," Ramey says. "When you squeeze money out of the federally disclosed paths, it just goes to other paths. Probably all of us would like to see these issue advocacy groups disappear. But if we do, the money will find another way in, under the surface, that we'll like even less. The money doesn't go away."

Other opponents of Shays' and McCain's campaign finance reform efforts -- like Sen. Mitch McConnell, R-Ky.; House Majority Whip Tom DeLay, R-Texas; and Rep. John Doolittle, R-Calif. -- chose not to comment.

Perhaps not surprisingly. As pointed out by Sen. Russ Feingold, D-Wisc., a leading critic of the campaign finance system, the Brennan Center study notes that "political parties using soft money are the worst abusers of the phony issue ad loophole."

Political parties are allowed to use "soft money" -- unrestricted donations that are meant for various "party-building" activities and not for specific candidates -- for "issue advocacy" ads.

But both the Republican National Committee and the Democratic National Committee are misusing the loophole, according to the study. Of those studied, 85 percent of the ads didn't even mention the political party until the end. And 99 percent of the "party-building" ads mentioned the name of a candidate.

"In '98, we saw the extent to which political parties have taken to use so-called 'issue advocacy' as a major element in their election strategy," Mann says. "All of these ads are run not to generically 'help the party,' but in specific geographical districts and states, mentioning the name of a candidate, most of them having an attack component -- and they don't have any issue content."

One "party-building" ad cited in the study was run by the Wisconsin Republican Party and involved the Senate campaign of then-Rep. Mark Neumann, who was challenging Feingold in 1998. In an attempt to portray Republican Neumann as independent, the "party-building" ad bragged about how often he had voted against his party. "He even stood up to his own party to rebuild Social Security," the ad says.

Party soft-money ads have been an issue in the past couple of months. Vice President Al Gore once pledged that he would forgo "soft money" television ads run by the DNC as long as the RNC didn't run any either. On March 14, Gore said that he would "take the first step by requesting the Democratic National Committee not to run any issue ads paid for by soft money unless and until the Republican Party uses money for advertising ... You have the power to join me in banning soft money. If you are willing to do the right thing, we can change politics forever." But DNC chairman Joe Andrew said this week, "We will put [ads] up when we think it's strategically important to put them up."

Since "issue ads" are classified as such and don't fall into the purview of FEC law, they can be funded anonymously.

One of the most notorious examples of this, according to Jamieson, occurred during the Republican presidential primaries when a pseudonymous group calling itself "Republicans for Clean Air" ran an "issue" ad (Watch the ad.) that blasted the environmental record of Arizona Sen. John McCain and praised that of Gov. George W. Bush. The New York Times soon reported that financial supporters of Bush's -- Sam and Charles Wyly -- had set up the organization and poured at least $2 million into the ads. The incident was interpreted by proponents of campaign finance reform as a crass skirting of campaign contribution limits and a textbook example of the problem with "issue ads."

"I think the ads that are the most problematic are the ones run by pseudonymous groups ... like the Wyly brothers ad," says Jamieson. "These are ads that seem to have electoral intent but they skirt the law."

Calling the study "eye-opening," McCain -- one of the Senate's leading voices for campaign finance reform -- argues that it "provides more ample proof that we must act to change our campaign finance laws. Loopholes are being exploited at an alarming rate and this report proves that this statement is not just anecdotal, but factual."

Moreover, McCain warns dramatically, "We will continue to see the increase of the pernicious effect of an evil that goes unchecked. And like any evil, it will get worse before gets better."

The Brennan Center study "shows explicitly and convincingly that sham 'issue ads' are indeed campaign ads," says Shays. "They target specific candidates, and they are meant to influence elections. We should treat sham 'issue ads' the same way we treat campaign ads under the existing election laws."

"For the first time we've gotten a real empirical handle on the nature of political advertising," says Mann. "For the first time, we've gotten a sense of the relationship between what the courts have said about express advocacy and issue advocacy and what's actually going on out there in the real world of politics."