Dumbing down campaign ads

By Bradley A. Smith
from the September 26, 2006 Rocky Mountain News

Memo: Bradley Smith served as chairman of the Federal Election Commission in 2004. He is professor of law at Capital University in Columbus, Ohio.

Thank goodness for the McCain-Feingold campaign finance law. Now, every candidate for federal office must include in his or her ads the statement, "I'm _________, and I approve of this ad." This is helpful, because undoubtedly most Americans used to think that candidates did not approve of their campaigns ads.

Seriously, this silly little provision of the law, it was argued, would make campaigns more "positive." The idea was that candidates wouldn't say such awful things about one another if they had to say, "I approve of this message." In fact, negative ads are not only a mainstay of campaigning, they are an important way that voters learn about candidates. Candidates - especially challengers - must point up their opponent's shortcomings, silly statements, or unpopular positions, because the opponent isn't going to do it himself. Even if you still dislike negative ads, it's pretty hard to argue that the "stand by your ad" provision has reduced campaign negativity.

"Stand by your ad" also adds to the cost of campaigning and reduces relevant information to voters. The required statement takes up 10 to 15 percent of a 30 second TV spot. It may not seem like much, but it is time taken away from a candidate's substantive message. And you can put a lot of substance into that time: "Give me liberty, or give me death"; "No taxation without representation"; and "The only thing we have to fear is fear itself" are a few famous political lines that would fill that time, and would certainly be more valuable to voters than, "I'm John Jones, and I approve this message."

The primary penalty for not including these words is that a candidate is no longer "entitled" to a station's "lowest unit charge" (LUC) ad rate, not only for the ad in question, but for all ads for the duration of the campaign. This guaranteed LUC for candidates is itself an interesting, oft-overlooked, and somewhat scandalous part of the law itself.

When a candidate buys an ad to tout his record, McCain-Feingold guarantees him the station's lowest ad rate. When a group of citizens buys an ad to show that the candidate is misrepresenting his actual record, they are required to pay market rates. Thus, for example, if Sen. Jones runs an ad in which he says, "I'll fight to keep taxes low for the middle class," a citizens' group will have to pay as much as double to run an ad stating, "Senator Jones even voted against tax cuts for the middle class."

In any event, in Colorado's 4th Congressional District, Rep. Marilyn Musgrave is involved in a tight re-election campaign. In a recent ad, Musgrave allegedly omitted the crucial "I'm Marilyn Musgrave, and I approved this message." So the question is, is she "entitled" to the lowest unit ad rate? If the law is somehow interpreted as making Musgrave ineligible for the LUC, rather than merely not "entitled" to it (as the statute actually provides), Musgrave's advertising costs could increase by roughly 90 percent. Obviously, this would have quite an impact on the race. (Her ad rates could increase anyway, if the stations, no longer "required" to give her the LUC, simply choose to charge her more than her rival).

What it boils down to is that a technical violation of the law, one that doesn't involve any illegal contributions or unethical behavior, might decide who wins or loses in the 4th district.

The idea that government can or ought to shape election speech, and can or ought to equalize the assets and liabilities that different candidates bring to a race, is contrary to the very idea of voter choice in a free electorate. Let the candidates campaign, and let the voters decide.