by Matthw L. Schafer
Fresh off of the decision by the Supreme Court in Citizens United v. the Federal Elections Commission, where the Supreme Court in a 5-4 decision ruled, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech,” campaign advertising is again at issue.
In Citizens United, the Supreme Court in part overruled Austin v. Michigan Chamber of Commerce, which prohibited corporate spending in campaigns, and McConnell v. Federal Election Commission, concluding, “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” (For information on corporate personhood, see here.)
Waiting in the wings of Congress is a bill submitted by Rep. Christopher Van Hollen [D-MD] titled H.R.5175 The DISCLOSE Act (To amend the Federal Election Campaign Act of 1971 to prohibit foreign influence in Federal elections, to prohibit government contractors from making expenditures with respect to such elections, and to establish additional disclosure requirements with respect to spending in such elections, and for other purposes), which would require unions and corporations to disclose their top five donors when spending more than $10,000, is a direct response to the Citizens United case.
“The DISCLOSE Act will provide the most transparency and disclosure of political expenditures in the history of our elections,” Van Hollen said in a statement. “This will help ensure that the American people know who is spending hundreds of millions of dollars to influence their vote and prevent a takeover of our democracy by powerful special interests.”
On Monday, the Administration released a statement expressing support for the measure.
“The Administration believes the DISCLOSE Act is a necessary measure so that Americans will know who is trying to influence the Nation’s elections,” the statement said. “H.R. 5175 also prevents those who should not interfere in the Nation’s elections – like corporations controlled by foreign interests – from doing so.”
A similar version of the bill is currently working its way through the Senate with 50 co-sponsors. In a letter from Sen. Harry Reid [D-NV] and Sen. Charles Schumer [D-NY] to House Speaker Rep. Nancy Pelosi [D-CA] and Rep. Robert Brady [D-PA], Reid and Schummer pledged their support for the bill.
“The Disclose Act is vital to the health of our democracy,” Reid and Schummer wrote. “In Citizens United v. F.E.C., the Roberts Supreme Court and its activist majority overturned decades of law and precedent and gave corporations and other special interests unprecedented new power to influence America’s elections.”
While a vote on the Disclose Act is expected later this week, it is worth examining the larger issue concerning campaign advertising. The DISCLOSE Act, while dealing with corporate transparency, does not deal with a larger issue that has been “hands-off” for quite awhile: Truth in advertising for campaign advertisements. Some thought the Citizens United ruling would result in a greater honesty in ads by reducing the number of “issue ads” that concerned corporations and unions used to use to circumvent the ban on corporate election spending.
Perhaps surprisingly, election advertisements are not required to follow the same truth in advertising laws that govern commercial advertisements. In order to protect consumers, the commercial advertiser is required to
- Be truthful and non-deceptive;
- Have evidence to back up their claims; and
- Be fair.
Political advertisements, however, are not governed by any truth in advertising rules. “[Instead,] they can legally lie about almost anything they want,” Brooks Jackson argues. “In fact, the Federal Communications Act even requires broadcasters who run candidate ads to show them uncensored, even if the broadcasters believe their content to be offensive or false.”
Unlimited corporate and union spending would no doubt be corrosive to the political process, but the longstanding license to lie is potentially even more corrosive. Section 315 of the Communications Act, that requires broadcasters to cary all advertisements despite their truthfulness, reads in part:
(a) … If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section.
While based on providing First Amendment protection to political candidates, a scan of recent advertisements shows the consequences of “free-range” political advertisements. The range of abuse in political advertisements, known for their low budgets and poor production quality, varies greatly. Some advertisements contain outright lies, while others are simply ridiculous in nature. While it would be impossible to regulate the “ridiculousness” of the advertisements, Congress could–at the very least–hold politicians to the same standards that the FTC holds corporations. Yet, it is, of course, questionable for the government to dictate matters of truth. Indeed, truth depends on one’s perspective.
“All this should tell voters that — legally — it’s pretty much up to them to sort out who’s lying and who’s not in a political campaign,” Jackson said. “Nobody said democracy was supposed to be easy.”
While it’s unlikely that the FCC will be regulating truth in politcal advertising any time soon, it is worth pointing out a few of the most egregious adds. A few of the most interesting advertisements produced this election season are Tea Party Congressional hopeful Rick Barber’s [R-AL] theatrical performance as a friend of the founding fathers, Alabama Governor hopeful Tim James’ [R-AL] advertisement about English only drivers license exams, Senate hopeful Carly Fiorina’s [D-CA] “Demon Sheep” primary advertisement, and North Carolina Congressional hopeful Tim D’Annunzio [R-NC].