Thank goodness for McCain-Feingold. Now, every candidate for federal office must end his or her ads with 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 ad.” In fact, negative ads are not only a mainstay of campaigning, they are an important way in which voters learn about candidates, as Vanderbilt Professor John Geer demonstrates in his landmark study of negative ads from 1960 to 1996. Candidates – especially challengers – must point up their opponents shortcomings, silly statements, or unpopular positions, because the opponent isn’t going to do it himself. And the voter benefits from that information. But even if you still dislike negative ads, it’s pretty hard to argue that the “stand by your ad” provision has reduced 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 buy an ad to show that the candidate is misrepresenting his actual record, they are required to pay market rates. Thus, for example, if Senator 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 pointing out that, “Senator Jones even voted against tax cuts for the middle class.”
In any event, out in Colorado’s 4th Congressional District, Congresswoman Marilyn Musgrave is involved in a tight re-election campaign. According to a report in the Denver Post, in a recent ad, Musgrave allegedly omitted the crucial “I’m Marilyn Musgrave, and I approved this ad.” So the question is, is she “entitled” to the lowest unit ad rate. In Advisory Opinion 2004-43, the Federal Election Commission was asked this question but dodged it (over a dissent by then Vice Chairman Toner and myself) on the grounds that the ad in question met the requirements to be entitled to the lowest unit charge. 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, according to the Post, would increase by roughly ninety percent. Obviously, this would have quite an impact on the race. (And we should note that her ad rates could increase anyway, if the stations, no longer “required” to give her the LUC, simply choose to charge more).
So once again, this is what campaign finance law boils down to: a technical violation of the law, one that doesn’t involve any illegal contributions or unethical behavior, might decide who wins or loses in Colorado’s 4th congressional district.
The “Stand by your ad” provision of McCain-Feingold is pernicious on many levels. It is not for Congress to tell candidates what they must say in their ads. Candidate speech should not be favored over the speech of voters. Arcane technicalities of the law should not play such a major role in political campaigns. Having good lawyers should not be the key to campaign success.
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.
[Note: A version of this blog post appeared in the Rocky Mountain News on Tuesday, September 26.]
