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?
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14 Responses to Pondering “Truth” in Political Advertising?
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Ban the Republican Party.
Banning the republican party could work, but only because it also would leave the democrats with nobody left to slander…
This is an interesting topic, but largely irrelevant due to the current state of First Amendment jurisprudence. I am convinced that some of the current Justices would hold that even perjury is protected by the First Amendment if given the chance….it is that extreme (unless, of course, the legislation is aimed at abortion protesters).
At any rate, I think the solution by and large is to trust the american people to sniff out the truth amongst the bullshit….take Palin, for example. Her social beliefs differ from a majority of the country, but her popularity still soared largely because most people were turned off by the constant attacks and negativity of the “impartial” main stream media…
We trust everyday citizens to make the right call as jurists, right? Why not politics as well?
I’m not sure the jury analogy is all that apt. Yes, we do let juries decide maters of fact, but after some of them have already been eliminated in voir dire, evidence is presented by both sides within a statutory framework, perjury is prevented by criminal sanction, decisions have to be unanimous, and a judge can set aside the decision if it is found to be decided erroneously. Even then, you still have multiple appeals before the decision is final.
To make a trial look like an election, you would have to load a bunch of people into a room, and then loose an indeterminate number of advocates in after them, who could yell, scream, lie their faces off, and unleash the worst screed aimed at people’s base fears all at the same time. After this had gone on for weeks, you would whisk the consultant out of them room, pass out cards, and tell people they had to make a choice predicated on that information. Then people would come in, ransack some of the votes, throw in some fake ones, and the recipient of the highest number would take control of the largest and most powerful government in the history of the world.
Sigh.
I wasnt talking form, Doc…but substance. In both situations, common, ordinary men and women are asked to decide the outcome….and everyone’s opinion, regardless of education, experience, race, sex, income, etc., counts the same.
And that’s what makes our system the greatest in the world. Interesting enough, that same concept is also what drives the liberal elite up a wall, which I find simply fascinating
Putting down my copy of Harper’s and my soy latte for a second, we in the liberal elite do support the right of everyone to vote. That’s why we passed the Voting Rights Act. What we are perpetually flummoxed by is the fact that a large number of people continually vote against their economic self-interest predicated on bad information.
Take for example the Federal Estate Tax. Put a bunch of even moderately successful retirees in a room together, and they’ll all start jumping up and down about the “death tax.” Is this the result of a careful consideration of their economic circumstances and a comprehensive knowledge of tax law? Probably not. Even before the 2001 increase in the cap, the number of American estates with enough assets to qualify was 41,321, or roughly .00004% of all households. No less than Warren Buffet said that elimination of the estate tax would be more accurately called a “death present,” noting that “A meaningful estate tax is needed to prevent our democracy from becoming a dynastic plutocracy.”
Now it really could be the case that people have a moral aversion to taxation of estates, even though it statistically will not affect them. Or it could also be the case that the comprehensive, long term manipulation of the media cycle through funded research reports by a small cadre of very wealthy families, and echoed through their paid dupes in Congress, change the tone to the point that people vote against what’s good for them. A lot of evidence suggests that it’s the second option.
Again, we want everyone to vote. We’ve just amazed when they vote against what is empirically good for them. I will now go back to whale watching and buying renewable energy credits.
The jury analogy is apt to the initial topic which was that how can people put aside the inadmissible statement aside for a certain purpose while considering it or a part of it for other purposes in deliberating on a case. By allowing false advertising we’re asking political jurors to disregard falsehood – and suspicions these falsehood raise in their minds – for the purpose of deciding based on truth. The situation is quite analagous – and probably philosophically closely related in the minds of those who developed our legal and political system.
Your confusion over why people would vote against their economic self-interest is interesting, but the Estate Tax example doesn’t really make your point. If the tax doesn’t affect them one way or another than they can’t possibly be voting against their economic self-interest unless the taxes paid by those estates affected do directly affect their economic self-interest. And since the tax doesn’t affect that many estates it’s difficult to argue that payment of the tax has any bearing whatsoever on the economic self-interest of anyone but a comparable number of taxpayers. If this is all true, it means that people voting against the tax are doing so based on a moral or philosophical opposition to the tax.
A better question from the tax debates is why people continue to oppose a simple, flatter tax code. A flatter tax with fewer loopholes and deductions would act to serve the ends of everyone by reducing fraud and limiting the overhead costs of enforcing the tax code, thus making available more tax funds for the service of all Americans. Yet organizations make phony cases against tax reform and their paid shills in Congress vote against such reform in order to protect the policy and social interests they seek to promote with the tax code.
Sherpa,
The point is the tax does effect them, but they are given the old bait and switch. Hundreds of millions of dollars get invested in convincing people to support legislators who will vote against it because they believe they will be directly affected, which statistically they will not be.
The Federal Government then loses a significant source of revenue. Estimates are that the increase in the deficit caused by permanent repeal of the estate tax would be 1.1 Trillion dollars between 2012 and 2021. When the Federal Government does not have enough scratch around to pay the bill on items like Social Security, who gets shorted? The Walton’s or Joe Lunchbox? Whose economic self-interest is served then? They are not doing it for moral reasons, but because they have been falsely convinced that it matters to them.
They vote for this for this crap because they get lied to, by people who have a vested interest in ginning up voter support for their installation as hereditary nobility. And political advertising in its present form does nothing but stoke the fire.
[...] light of our discussion on political advertising and its truthfulness, I ran into this very timely article in Salon today by a Dr. Robert Burton, [...]
I think you’re discounting moral opposition because of your perception of why people vote the way they do. It’s not mutually exclusive. For instance, I oppose the tax on principle even if it would never affect me. Those resources are taxed multiple times before and after death even without the inheritance tax. Secondly, the person receiving the money and investments have no control over receiving them; why should they be made to pay when receiving it AND every year or transaction thereafter? (Not to mention the fact that $110 billion dollars per year does little to address entitlement program solvency.)
The problem with arguing over this is that we’re not even asking if it’s the argument we should be having. I don’t think it is.
Let’s take Social Security. Based on your premise, your argument cuts the other way too. Groups seeking to protect the current model of social security have spent millions to maintain the status quo and have scared voters into opposing any change that would make the program stronger. We might disagree on what change would be best, but people have been deceived into thinking that it’s in their interest to oppose any change.
However, the problem is that political parties seek to promote economic interest above other considerations. In other words they assume that a voter’s economic interest is and should be define in terms of the size of that benefit check. That’s bass ackwards to me. Instead of focusing on cutting Social Security benefit checks or whether someone pays the inheritance tax, we should be asking what is the most sound model for making sure the program survives.
Put another way, we should be seeking to reduce the influence of economic interests in voting – at least in terms of the government giving people money and direct benefits. Elections are too focused on which candidate will give people a tangible, government-provided benefits. This is simply who will give you a better bribe to vote for them and as a result we get distorted cases made for what is best and deceptive advertising based not on reason and principle but upon deception.
For example, I’ve had several Obama volunteers stop by my house because I’ve told each one that I’m undecided this year. Without exception they’ve run through the litany of material benefits I’d accrue if I voted for Obama – assistance with student loans, tax credits, lower gas prices, etc. When I asked what Obama’s plan was for reducing inefficiencies and fraud in government, they had nothing. When I asked how much he prioritized a balanced budget, they had nothing. And when I asked if he supported tax reform, they had nothing. It cuts both ways: McCain’s people do the same thing with taxes and energy too. The point is that these candidates may have thoughts and plans on these issues, but they send their volunteers out with bribes.
I care about getting a tangible benefit but I’d rather have a leader focus on governing principles than on using governing to bribe people into buying into a governing philosophy.
Very good post by Sherpa. The assumption/perception is that all Americans are greedy/selfish, and therefore will support any program that would line their pockets, even if it screws over another segment of the country.
Take the 95% number Obama is pushing. They are pushing it so hard for the very concept that Sherpa is pointing out: “Vote for me because I’m only aiming my tax hikes on 5% of you, so the other 95% will benefit!” However, what is NOT talked about (either by his campaign or most of the major news outlets in this country is):
1) He is proposing to cut checks and give them to a segment of the population that already doesn’t pay taxes under our current system. That is straight income redistribution, a socialist concept that our country has soundly rejected from day one.
2) The 5% taking the tax increase are not only individuals making 250K plus, but also businesses who are taxed as individuals. Such a tax likely will have a crushing impact on small businesses, which in turn will probably do even more damage to the economy and, more importantly, more damage to the people receiving the tax cuts than the benefit they actually receive by having a few extra dollars plopped into their back pocket by the Feds.
3) It only considers income tax. Take, for example, social security. If Obama whacks the cap (he said at one point he won’t completely get rid of it, but likely will have to to pay for everything he wants to do), that will have a huge impact on anyone making over 95k or whatever the number is (not to mention the fact that we likely are not to see anything from Social Security on the back end once all the baby boomers retire and don’t die for 30 years).
My point? Political advertising largely is bs. And even worse, the coverage of elections by the major news outlets is even more bs. You can manipulate numbers and coin phrases to influence thought all you want….the onus is always going to be on the american public to see through the bs and make the right call at the end of the day.
Here’s the issue – one man’s facts are another man’s spin. And one man’s spin is another man’s lie.
None of these campaign ads that people have called false, misleading or lies have been completely made up, on either side. They are all based on facts, such as voting records and such. Even the McCain “Obama wants to teach sex ed to kindergarteners” was factual if you only look at the text of the statute, which we all know is the starting point for statutory interpretation.
There’s no way you’re going to be able to legislate away misleading ads. Not only are they a question of perspective, they’re also a strategy in and of themselves. Why do you think McCain has been running his ads so close to the line between truth and falsehood? It’s not because he is inherently evil or inherently a liar. It’s because he knows (or at least Steve Schmidt knows) the more controversial the ad, the more likely it will get picked up in the media. If it gets picked up in the media, more people will see the ad, giving you a greater bang for your buck. Hell, McCain’s “lipstick on a pig” ad wasn’t even a television buy – it was only on the internet. But chances are you saw it on the news, if not on youtube.
Political campaigns have long relied on cognitive dissonance when planning for TV ads. It’s just a fact of life. People believe what they are inclined to believe.
Take Obama’s most recent ad attacking McCain for voting against a variety of alternative energy solutions. Those are single votes, all of which were probably buried in much larger bills. It is just as likely that McCain has voted ten times as often for all of those things. Given that your average law has had dozens of procedural votes as it has wound it’s way through the political process, all Obama’s oppo researchers have to do is find one example where he voted no and there’s the citation and the statement becomes true.
No one wants to see “McCain voting against oil exploration, when he voted no on the motion to recommit with instructions to the Senate Energy and Natural Resources committee a bill on blah blah blah blah blah.” You lose people after “motion.”
That’s the problem of having two legislators running for President. In their careers (even one as remarkably short and bereft of meaningful votes as Obama’s) they’ve voted thousands of times on random crap they can’t even remember. It’s a gold mine for oppo researchers.
At the end of the day, you’ve got to take these ads at face value. Everyone should view these ads on both sides of the aisle as inherently biased and should take them with a grain of salt. But until we as the American people collectively stop electing the folks who use these ads, no amount of regulation will stop them. You’ll just have a bunch of money and bunch of time wasted arguing over what the definition of “is” is.
PS – Dr. B, just for the record, it was the Democrats who filibustered the Civil Rights Act of 1965, and more of them voted against it than Republicans did. On the conference report only one Republican voted no, and 17 Democrats did. And President Bush just signed a 25 years extension of the law. So don’t break your arm patting yourself on the back.
BigShow,
What happened? Did you find a long since forgotten about copy of “Speech to the Electors of Bristol” and decide to reaffirm your belief in the cognition of our elected officials? Lord only knows why someone who has the erudition to dig out and understand a conference report would put their faith in that chimera, but so be it.
My response to your argument would be that under Burke’s model, the need for truth is even more pressing. That’s because the latitude extended to the legislator’s is more substantive if people “trust” our legislator’s judgment, than is we operate under the assumption that we send them forth to do our bidding.
Please also note that I did not say Democrats passed the Voting Rights Act. I said effete latte swilling liberals. Also note that the Democratic Senators that filibustered that Act included Strom Thurmond. Which I would argue proves that
Mojo,
Just so I’m clear, in your understanding, no one who makes less than $250,000 per year pays income tax? Did I miss that on that on either of these tax charts?
Schedule X — Single
If taxable income is over– But not over– The tax is:
$0 $7,825 10% of the amount over $0
$7,825 $31,850 $782.50 plus 15% of the amount over 7,825
$31,850 $77,100 $4,386.25 plus 25% of the amount over 31,850
$77,100 $160,850 $15,698.75 plus 28% of the amount over 77,100
$160,850 $349,700 $39,148.75 plus 33% of the amount over 160,850
$349,700 no limit $101,469.25 plus 35% of the amount over 349,700
Schedule Y-1 — Married Filing Jointly or Qualifying Widow(er)
If taxable income is over– But not over– The tax is:
$0 $15,650 10% of the amount over $0
$15,650 $63,700 $1,565.00 plus 15% of the amount over 15,650
$63,700 $128,500 $8,772.50 plus 25% of the amount over 63,700
$128,500 $195,850 $24,972.50 plus 28% of the amount over 128,500
$195,850 $349,700 $43,830.50 plus 33% of the amount over 195,850
$349,700 no limit $94,601.00 plus 35% of the amount over 349,700
Also, I’m assuming that the principled stand you’ve taken against socialism and the redistribution of wealth will be evidenced in a series of lawsuits attempting to prevent the Federal bailout of Wall Street.
Wow. Conservatives evoke morality even in economic matters. The world truly is black and white. Even if a tax would never harm me and in fact may benefit me, I should vote against it because it is a universal truth that it is bad.
Dr.,
I apologize for having to correct you on your own blog, but you completely missed my point in my previous post.
I never said anyone who makes under $250k doesn’t pay taxes. Rather, I said that there is a segment of the population, which is included in the Obama 95%, that does not pay taxes and will STILL get money back from the government under his system.
So, we have two groups that make up the 95%. The first pay taxes subject to your nifty little chart. They will receive a tax cut. They pay X amount in income taxes now, and under Obama’s plan they would pay X – some amount in income taxes. Then we have a second group. They currently pay nothing in taxes (not sure if that is included in the nifty chart or not). Under Obama’s plan, paying zero taxes for governmental benefits is not enough for this segment. Instead, they would actually receive a check from the federal government, which is why i used the term “cutting a check” in my previous post. That is straight income redistribution (to be clear, i am referring to the second group, not the first, when i say straight income redistribution).
Now I could be wrong. I have no internet links or spreadsheets to cite. This is what I have seen explained a number of times by a number of different economists on a number of different news outlets. If I am wrong (and I hope I am), all the better. But if I am not, that cuts against the fundamental economic ideals that our country was founded on. We are not socialists, and for good reason (essentially that it doesn’t work and ends up doing far more harm and good to everyone…nothing to do with morality, jack).
Also, good job ignoring the small business point…straight out of the Obama playbook on that one.
Oh, and I’m pretty sure the feds have sovereign immunity on the whole bailout thing, but if not sign me up