Law Students

Pondering ?Truth? in Political Advertising?

By Casebook Sherpa

So I’m pondering whether we need some tighter regs on political advertising. My fingers are burning as I type that. How can I possibly oppose McCain-Feingold but wonder whether we need tighter regulations on political advertising, you ask? It’s a good question.

McCain-Feingold restricts the ability of citizens, through organizations, to participate in the political process. Period. While supporters say these restrictions are reasonable and necessary to limit the influence of money on politics, money is just as much a part of the process as it was pre-BCRA. If anything, the regulations have enabled more money to go underground and given us less transparency and accountability.

But I digress…

I wonder whether we’re missing the boat. Do we need to regulate the truthfulness of political advertising?

If we rely on the democratic process to choose leaders, root out unpopular policies, and kick the bums out, we need truthful information. RIght? The question, of course, is whether this interest outweighs the liberty interest of free speech.

Currently federal law places no such restrictions on political ads and the law appears to prohibit stations from refusing to air politilcal ads that they deem misleading or false, though in every election we see stations doing just that. If it did, the law would at least discourage-but not eliminate-the type of negative ads we see that are based on distortion of someone’s record and statements.

(By way of background, I’ve relied heavily on this article as I didn’t have time to do anything more than skim the FCC and FEC statutes, cases, and regs.)

Traditionally, the answer to this dilemma has been more information, the idea being that putting honest information in front of voters is the way counter false advertising. Stated another way, we should let speech beget speech so as to encourage open debate and let the truth expose falsehood rather than government regulation.

On principle, I agree with that approach. (Perhaps I need go no further, but let’s go anyway.)

But surely there is a class of ads and statements we deem so offensive and so patently false that they should not be broadcast on public airwaves (cable, of course, being another matter… sort of.) States that have enacted truth in political advertising statutes have focused on fining campaigns for releasing false ads, but not until after they have been broadcast to the electorate. This does very little to prevent the influence of false statements.

If you were to police the truthfulness of political advertising, I think it would need to be:

• Based on an objective standard. The most effective political advertising is based on absurd inference (e.g. that McCain believes the middle class extends into the $5 million range or that Obama wants to teach kindergartners how to use a condom). The advertising statements may actually be false but they are inferences drawn from votes and statements that could be true or will be true depending on the nature of the legislation supported or statement made. You can’t rule these ads out. The voter’s decision making  process needs to include the logical outcome from a candidate’s position, including the extreme logical outcomes.
• Proactive. Leaving decisions until the gears of bureaucracy crank into motion would be ineffective. There would need to be a review stage upfront perhaps by a board of FCC and FEC commissioners and political party officials. The effect of a decision would need to be reviewable. Review or appeal could not delay the decision from being implemented. What’s that? You smell an opening for all sorts of mischief here by allowing the parties to reject the other side’s ads. Please. Paranoid much? That would never happen. This is non-partisan beauracracy we’re talking about here after all.
• Severely Punitive. A trivial fine won’t discourage anything given the amount of money and stakes of these races, state and federal.

As much as I’d like say that society’s interests in honesty in political discourse should be paramount, there’s no way this could work, nor would we want it to. Asking the government to manage which political ads are honest enough for its taste (and ours) runs completely contrary to free elections.

Plus, how do you even begin to regulate the countless forms of communication out there? If a campaign wants to seed a negative and misleading message about a candidate they’ll get it out even if the government won’t let them run a TV ad about it.

The irony of my neurotic ramblings is that people respond to misleading ads. For all of the hand-wringing done by people like me, and people much smarter than me,  misleading ads shock people into action. It’s not always the best of action or belief, but it makes people pay attention. In that sense it’s good, so long as  it stirs people to find the truth. And even if it doesn’t shock people to action, on election day each person walks into the booth and makes a decision. The extent to which ads and impressions impact that person influence how she votes - for better or worse. That person - and “the people” - are responsible for mititgating the impact of misleading advertisingby being more engaged in finding the truth or voting against candidates that are more misleading.

Is there another way to combat dishonesty in elections?

Full post as published by Fight The Hypo on September 17, 2008 (boomark / email).