A Simple Way To Reform Political Advertising.

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?

Supreme Injustice.

The Supreme Court decision in McCutcheon et al v Federal Election Commission is the next step in our march from democracy to plutocracy allowing the rich to dominate our political system even more than they already have. In a series of 5-4 decisions with “conservatives” in the majority, the Court has ruled that money equals free speech; that corporations are people (at least with regard to political contributions); and that there can be no limits on the amount of money the ruling class can spend on elections.

For many years, wealthy individuals and large corporations have enjoyed greater influence and access to elected representatives than ordinary citizens. With this ruling, the wealthy will be able to literally buy them. The Koch Brothers and Sheldon Adelman are already spending billions through a complex network of Political Action Committees and Super PACs in order to sway our elections. Now they and other billionaires will be unleashed to spend monumental sums to elect candidates that will allow them to control Congress.

It’s fitting that this Supreme Court ruling comes on the heels of the death of Charles Keating, Jr. A financier and developer who was a friend of Ronald Reagan, Keating was indicted in the savings and loan scandal that cost the federal government billions. Prior to the failure of his Lincoln Savings and Loan Association, he contributed $1.3 million to the election campaigns of five US Senators in order to buy their influence to help fend off federal regulators. After Lincoln eventually failed, Keating was charged and convicted of 73 counts of fraud, racketeering and conspiracy. Although his conviction was later overturned, he eventually admitted to four counts of wire and bankruptcy fraud.

Given this latest Supreme Court ruling, there are likely to be many more Charles Keatings – those who will use their money to control tax laws; to fend off federal regulators; to eliminate regulations altogether; to scam the government and ordinary people; and to buy their way out of any legal challenges.

It has often been said that elections have consequences. It’s true. I think it’s no exaggeration to say that our democracy is now suffering the consequences of a Supreme Court majority hell-bent on unraveling our Constitution and placing us at the mercy of a government run by a privileged few…a majority given lifetime appointments by Republican presidents.