Watch a George W. Bush attack ad from the 2004 election:
What does the Stand by Your Ad provision require from candidates?
For candidates running for a federal office, the provision requires an identifiable candidate image, a voiceover message, and sponsorship identification—all with specific size requirements. There’s a major incentive to cooperate: Candidates whose campaigns comply receive the lowest media rate status for radio or television time for political advertising. Using “I approve this message” can save a candidate’s campaign millions in media dollars. The Federal Election Commission (FEC) can impose penalties on campaigns that fail to comply, including the loss of that enormous financial benefit.
Do candidates really give their approval to these ads?
There’s no question that when political ads began airing on TV, the candidates not only watched them, but were frequently involved in what was said and how the ads were produced. But in today’s always-on, 24/7 media world, there can be tens of thousands of different versions of ads running at any one time on different platforms. Yes, a candidate may still focus on an ad that they deem critical to their candidacy. But to approve every ad running on broadcast television or radio in every state is just not realistic.
Does Stand by Your Ad say anything about deception or misinformation in an ad? And does it say anything about negative ads?
First, let’s be clear about terms: A deceptive ad includes misinformation, omission, confusion, alteration, and, of course, plain ol’ lying. A negative ad or attack ad can be true or false, but it always puts the opponent or a particular issue in a bad light.
Stand by Your Ad does not address deceptive or negative ads per se, but the lawmakers who introduced it hoped it would reduce both because it was in the best interest of the candidate to stand up for their ad; thereby, showing accountability.
It hasn’t worked out that way.
During the 2016 election, 83 percent of Donald Trump’s ads and 96 percent of Hillary Clinton’s were scored as negative, according to Kantar Media. And for the 2018 midterms, negativity was up 61 percent from 2014. Obviously, campaigns must believe it works or they wouldn’t spend the money, and many political scientists agree that negativity helps to get attention and can be particularly useful when a candidate is running behind in the polls.
Watch a John Kerry attack ad from the 2004 election:
Who decides if an ad is deceptive or not?
To complicate matters, there is an alphabet soup of federal agencies along with the courts and Congress who have a hand in the rules around advertising. And none of them are charged with determining what’s true or false in a political ad.
A key reason is because the U.S. Supreme Court repeatedly has affirmed that political advertising falls under the First Amendment right of free speech, and that it is up to the electorate to find out the facts and discover the truth. There are liability laws for defamation of character, but the standard is almost impossible to satisfy, and by the time the case makes its way through court, an election is almost certain to be won or lost.
Voters often believe that political ads are bound by consumer truth-in-advertising laws. But while the Federal Trade Commission (FTC) protects consumers from lies about the products they buy, it is not authorized to regulate political advertising. Furthermore, even when the content is deceptive, the Federal Communications Commission (FCC) mandates that broadcast networks are not allowed to censor or refuse a political ad for a federal candidate. The broadcast networks can say no to a third party, super PAC, or issue ad, but rarely do because of potential liability. (Cable, however, can turn ads away.)
In addition to all of this, there are currently no federal laws that apply to online political advertising or messaging content. Social media companies like Facebook have no legal liability for what is posted on their platforms since they are regarded as intermediaries rather than publishers, a critical reason why Mark Zuckerberg refuses to call Facebook a media company. This is also the reason for the current strife over certain Tweets from President Trump. In the absence of regulation, Spotify, TikTok, and Twitter have opted to regulate themselves, banning, pausing, or labeling political advertising. Facebook has announced it will block ads from state-controlled media entities in the U.S.
If political advertising and the rules around it sound like a confusing way to evaluate our national leaders, well, that’s true. However, while recognizing the drawbacks, hearing a national candidate say “I approve this message” remains emotionally reassuring; eliminating the phrase seems depressingly defeatist. Solving this conundrum is only one of the many thorny political advertising issues on Congress’s plate today.
So where does that leave us? To paraphrase the Supreme Court: For now, it remains up to each one of us to find out the facts and discover the truth. Being aware is our best defense.
In that spirit, stay tuned for our next post about all the ways we are manipulated online during election season.
Read More: “I Approve This Message”: The Birth of TV Campaign Ads and 9 Presidential Election Classics
Written by Harriett Levin Balkind, Founder of nonpartisan HonestAds.org and creator and guest curator of the I APPROVE THIS MESSAGE: Decoding Political Ads exhibition hosted by the Toledo Museum of Art, 2016
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