MoveOn.org, a liberal advocacy group, is running a round of attack ads against Republican candidates Kelly Ayotte in New Hampshire and Rand Paul in Kentucky.
The ads link the candidates to the U.S. Chamber of Commerce as part of a campaign to “expose the shadowy corporate groups that are trying to influence the elections,” the Wall Street Journal reported yesterday. For the record, here’s the Chamber’s response to the baseless allegations. The Huffington Post noted that the MoveOn.org campaign is part of a coalition with the Media Matters Action Network and ThinkProgress.org to “push back against, and even dissuade, conservative groups and funders from launching major election-themed ad campaigns.”
An interesting aspect about the ads not reported by the press, though, is the difference between the disclaimers in the MoveOn.org ads and the disclaimers MoveOn.org and self-styled reform organizations would force upon political groups in the DISCLOSE Act, which Senate Democrats plan to bring up for another vote as early as next week.
Here’s MoveOn.org’s Ayotte ad:
According to my informal calculation, MoveOn.org’s disclaimer for the 30 second ad is about two-and-a-half seconds: “MoveOn.org Political Action is responsible for the content of this advertising.” The disclaimer is barely audible—it sounds like the side effects clause of a prescription drug commercial at best. There’s also a written disclaimer that appears on the lower third of the screen for four seconds.
The DISCLOSE Act contains a provision called “Stand By Your Ad.” It’s modeled after a similar provision for candidates, but with two big differences: (1) the disclaimers for candidates are relatively simple and short—about four seconds: I’m John Smith and I approve this message—and (2) when candidates include a “Stand By Your Ad” message, which is voluntary, they receive the “lowest unit rate” charge for the broadcast advertisements, meaning they’re charged a lower rate than other advertisers. The provision for independent groups, in contrast, is mandatory and provides no such benefit.
When the Center for Competitive Politics criticizes campaign finance laws as incumbent-protection measures, this is exactly what we’re talking about: where in the First Amendment is it written that federal candidates—especially incumbents with typically larger war chests for advertising—should be entitled to a statutory scheme that incentivizes their political advertising while punishing those who dare to criticize them?
The American Civil Liberties Union letter opposing the DISCLOSE Act has more details about the burdensome aspects of the “Stand By Your Ad” provision:
The DISCLOSE Act mandates disclaimers on television and radio advertisements that are so burdensome they would either drown out the intended message or discourage groups from speaking out at all. The individual or organizational disclosure statement, the significant funder disclosure statement, and the top-five funders statement each take up six seconds, meaning more than half of many 30-second television messages would be filled with compelled disclosures. It is difficult to even conceive of a way to use 15-second messages. And it is unclear whether the provision for “hardship” situations would satisfactorily resolve such problems. The Act would allow an organization to avoid two of those requirements if it steers clear of “electioneering communications” and “independent expenditures,” but even that would be more difficult given the Act’s expanded “electioneering communications” period and less certain definition of “independent expenditures.” [Note: This MoveOn.org ad, which appeared in the 60 day period before the general election, would meet the standard for an electioneering communication.]
The significant funder statement is especially troubling in that it might require the endorsement of an individual or organization that has funded a group without intending or desiring to control the content of a specific advertisement. The significant funder for a given ad might be a supporter who has given money without designating its use for the ad in question—or even the general political activity in question. For many organizations, advertising is a small part of their overall operations, and the significant funder might even disagree with the content of an organization’s advertisements while supporting the organization as a whole. Any required disclosure statements should not compel individuals to endorse a message with which they disagree or mandate that an organization alter its procedures to seek significant funder approval of specific messages.
At best, the disclaimers would reduce the “speech” in many advertisements by more than 50 percent. At worst, they would drive from the airwaves many organizations that wish to share their views on important public issues. The Act’s “hardship” provisions, limiting the required statements when they would require a “disproportionate amount of time,” is vague and therefore offers little assurance that the core message of an issue advertisement will be preserved. Current law already provides for the disclosure of an advertisement’s sponsor. There is no need for further requirements that limit or discourage public discussion of important issues.
Let’s assume the top funder to MoveOn.org is George Soros. Here’s what the disclaimers for the organization would look like under the DISCLOSE Act:
“I am Justin Ruben, the executive director of MoveOn.org Political Action, located in Greenbrae, California and MoveOn.org Political Action approves this message.”
PLUS
If the “significant funder” is an individual: “I am George Soros of New York, New York. I helped to pay for this message, and I approve it.”
OR
If the “significant funder” is another organization: “I am George Soros, the president of the Open Society Institute located in New York, New York. The Open Society Institute helped to pay for this message and The Open Society Institute approves it.”
In an informal test, using a relatively rapid voice, the disclaimer with the organizational significant funder took almost 15 seconds.
These statements must be recited verbatim. See Sec. 214 of the House-passed version of the DISCLOSE Act. There is an exception to the full disclaimer if the “communication is of such short duration that including the statement in the communication would constitute a hardship to the person paying for the communication by requiring a disproportionate amount of the communication’s content to consist of the statement,” but the basis of such a determination would by Federal Election Commission regulations. Of course, Democratic leaders also included another provision in the DISCLOSE Act to make it effective whether or not the FEC promulgates regulations. So, if a group wanted to speak, they would probably need to seek an advisory opinion from the agency, which would take weeks.
Here’s the script for MoveOn.org’s ad—sans the current disclaimer:
They say you can judge a person by the company they keep. Well, Senate candidate Kelly Ayotte is getting a million dollars worth of help from the Chamber of Commerce, a group recently accused of tax fraud for diverting money meant for charity toward their partisan agenda. Tax breaks for the wealthy? Denying Americans better health care? And cutting jobs for teachers and first responders? All to benefit their millionaire friends on Wall Street. If Kelly Ayotte’s on their side, do you think she’d be on your’s?
Perhaps MoveOn.org could tell us what they would prefer to leave on the cutting room floor in such an ad if the DISCLOSE Act passes?
As noted, this provision is modeled after a similar McCain-Feingold provision. Even some prominent “reformers,” such as Prof. Rick Hasen, thought this provision was unconstitutional. Former political consultant—and current Obama advisor—David Axelrod has called the provision “absurd” and “just one more example of reform gone amok.” Nonetheless, the Supreme Court upheld it in McConnell v. Federal Election Commission. Still, that provision dealt only with a voluntary provision for candidates, and a provision compelling the speech of independent groups may face a tougher constitutional obstacle.
The provision’s sponsor, Sen. Ron Wyden, claimed it would discourage negative ads. Yet the McCain-Feingold provision has failed miserably to curb negative campaigning—not that such restrictions would be a sound governmental interest anyway, especially when incumbents are writing laws to restrict independent groups and not just candidates. In 2008, researchers at the University of Wisconsin found that more than 60 percent of Barack Obama’s ads—and more than 70 percent of ads for John McCain-were negative.
On another note, a question similar to this provision actually received pretty high support in the poll the Center for Competitive Politics released yesterday focusing on aspects of the DISCLOSE Act:
DISCLOSE also includes a provision that would require the leader and largest donor to appear in the ad approving its message. Sixty-eight percent of respondents think such a provision would be of at least some value in better understanding and judging the ad’s accuracy and credibility. It seems that Americans see a minimal informational interest in some level of disclosure but are intensely wary about allowing their friends, co-workers and neighbors to ferret out their political leanings like modern-day McCarthys.
In hindsight, it would perhaps be more accurate to note the length disparity between candidate disclaimers and independent disclaimers; perhaps we’ll do so in a later poll.
Nonetheless, it’s clear that even organizations that support such strict disclosure such as MoveOn.org don’t air bulky disclaimers unless forced, suggesting that the burdens to political speech are very real and problematic.
