Since the Supreme Court decisions in Buckley v. Valeo, Citizens United v. FEC and McCutcheon v. FEC, there have been numerous initiatives to reform election campaigns. Most involve asking Congress to pass Constitutional Amendments that would control election finance or require publicly-funded elections. Though these attempts are admirable and necessary, I think they have little chance to succeed. Instead, I propose a much simpler way to reform political advertising that would not, in any way, infringe on the right to free speech.
All we need to do is hold political advertising to the same standard as advertising for products and services.
When a large corporation produces an ad for a product or service, it subjects the ad to legal compliance before placing the ad on television. That compliance process makes sure that any claims can be substantiated and defended in court. If the claims cannot be substantiated, the company may still run the ad at its own risk. (Indeed, even those ads that have passed legal compliance may be the center of a lawsuit.) But the company, the advertising agency, the writer and often the production company can all be held accountable for damages in ensuing lawsuits by numerous organizations such as the corporation’s competition, the Federal Trade Commission, the BBB, state Attorneys General and industry regulatory groups. This process ensures that ads tell the truth.
For example, when I began my career in advertising, I was recruited to write advertising for a product that promised to give your car better gas mileage and performance. Although I had been given a copy of an independent research report, I was still skeptical of the promises. So I asked the clients to sign an affidavit that the information I had been given was true. After the ads ran, the state Attorney General filed a multi-million-dollar lawsuit naming the company, the art director and me. Thankfully, when I presented the affidavit to the AG, the art director and I were dropped from the lawsuit. The lawsuit was settled out of court with the company agreeing to pay a large fine, to return money to customers who requested refunds and to cease sales of the product.
The system worked. But there is no such system for political advertising.
Political campaign committees have long been free to say and do whatever they want. If an opponent sues over false and misleading advertising, the issue seldom comes to court until after the election. By that time the damage has been done; the entity that is the campaign committee no longer exists and usually no longer has funds to pay any fines. Only rarely are individuals held accountable and, if they are, the settlements take place much later away from the public eye.
The Federal Elections Committee could easily solve the problem by demanding that candidates and campaign managers sign affidavits that the claims made in their advertising are true and not misleading. Ads could be submitted to the FEC and bi-partisan state election committees for compliance. More important, all of the individuals would be held liable even beyond the election. (Yes, the system might require more federal and state funding. But isn’t the process of choosing an elected representative more important than choosing a laundry detergent?)
This would make the standards for political advertising almost identical to the standards for product advertising. As a result, this system should impose no undue hardship for politicians.
As for dark money groups (PACS, Super PACS, 501c4s) funded by billionaires and corporations which now sponsor the majority of our political ads, they can be held accountable by a one word change in the IRS code governing non-profits. Instead of the code requiring that non-profit groups be “operated primarily for the promotion of social welfare,” the code should be returned to its pre-1959 wording which required that non-profits be “operated exclusively for the promotion of social welfare.”
The only real problem with this proposal is that Teapublicans simply don’t want to make changes. The FEC commissioners are split with 3 Teapublicans and 3 Democrats, and the Teapublicans have blocked every proposal to reform elections. They are content with dark money, with attack ads and with lies. In fact, they are quite good at it. Recent studies have shown that the preponderance of political lies come from Teapublicans. But aren’t these the same people who demand accountability from others? Adding an independent FEC commissioner would end the stalemates and make the FEC relevant again. These relatively minor changes would make all politicians accountable and likely make most political campaigns civil again. More important, it would make them more fair by requiring candidates to tell the truth and it would eliminate dark money from the process.
Who could be against that…other than liars and cheats, of course?