op-ed

Why Campaigns Air False Ads

Because why not. And because the law makes them impossible to stop. posted on

When Mario Cuomo famously said that you campaign in poetry and govern in prose, he probably wasn’t talking about the advertising part of campaigns. For some political commercials, the appropriate literary metaphor might be some form of low-brow fiction.

So it is that in the closing days of this campaign cycle, as with all others, candidates are taking to the airwaves with fibs about their own accomplishments and false attacks on their candidates. The most prominent example, of course, is Mitt Romney’s new Ohio ad that appears calculated to leave the false impression that as a result of Obama’s auto rescue, Chrysler is moving production to China — a claim quickly denounced by the company itself.

Sure, it’s less than ideal for the Romney campaign that Chrysler and GM have publicly refuted its commercial. And, yes, it’s a mild inconvenience that some press reports have noted the inaccuracy.

But in the grand scheme of things, relative to the crime, there is an exceedingly low cost for campaigns to pay, for the opportunity to write their own attacks free of interference from factuality.

A TV ad with real money behind it, as Romney’s auto commercial has, can be seen by millions of people. Unless the refutation of the false claim is aired via the same medium (television) with the same amount of force (ie, the same number of “points” behind the buy) as the ad itself, a significant number of people will see the latter without the former. The internet has made this less of a sure thing, but it’s still a pretty good proposition for the Romney campaign.

This is especially true of commercials, unlike Romney’s, where the race and media market are small and the number of reporters fact-checking far less robust. In those instances, readers may never learn the truth about the claim. It’s also true of ads that come in the very last days of a race, unannounced by campaigns (as was Romney’s); in many of these cases, reporters may never catch wind of the ads or claims in time to make public fact-checks in the first place.

Making it an even better proposition: aside from the possible intervention of an easy-to-malign MSM, there is no formal penalty — like a fine, or even the removal of the spot — for airing a dishonest ad.

Compare that to the rules governing the advertising of consumer products, where the Federal Trade Commission has real teeth.

Ever see those commercials for “Your Baby Can Read!” — that too-good-to-be-true product in infomercials claiming to teach 9-month old babies how to read via flash cards? Two months ago, the FTC filed false and deceptive advertising charges against the marketers of the product. Faced with steep fines and penalties, the company ultimately settled, agreeing to discontinue using the offending language and paying a $185 million judgment, the amount the company had earned in gross sales over the preceding four years.

Can you imagine what would happen if political candidates were forced to take down their ads and pay steep fines for outright lies in their advertising?

To be sure, there are logistical and challenges to implementing such a system in the political context. For one, how would you prevent whoever’s empaneled — perhaps the Federal Election Commission — from being tainted by partisans and other interested parties? And how would you make rulings using objective measures, and do so in a timely fashion so campaigns can’t game the system?

But these are not the real impediments blocking that kind of regulation.

As it now happens, campaigns are held to a different legal standard than commercial advertising, with the former deemed “political speech,” protected by the First Amendment.

According to federal law:

“No station licensee is required to permit the use of its facilities by any legally qualified candidate for public office, but if any licensee shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other candidates for that office to use such facilities. Such licensee shall have no power of censorship over the material broadcast by any such candidate.” (emphasis added)

In other words, not only does this allow candidates to produce false ads, broadcasters are actually obligated to run them — even if they know they’re dishonest. A station may have an outright policy of rejecting all candidate ads — but if it accepts one, it must accept them all — regardless of content (note: PACs do not enjoy this same protection).

To be sure, as the Supreme Court has said, there may be good reasons to treat political speech differently. But one effect is that when a Democratic candidate challenging Rep. Keith Ellison, a Muslim, runs an ad with images of a beheading and dead fetuses — with only one accurate line — the station is required to air it.

And when Romney runs an ad shot down by the very companies it’s referencing, that ad can continue to run through election day — stymied only by the occasional critique by a media untrusted by many Americans, in a forum with fewer eyeballs than saw the ad.

All of which means that it should have been little surprise when the Romney campaign openly announced in August, “We’re not going to let our campaign be dictated by fact-checkers.”

That wasn’t bravado. Barring a different interpretation of free speech, it was — for better or worse — a statement of fact.

Blake Zeff, a former presidential campaign aide to Barack Obama and Hillary Clinton and former aide to Senator Chuck Schumer and New York Attorney General Eric Schneiderman, is a BuzzFeed contributor. You can follow him on Twitter at @BlakeZeff.

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