You may recall the original "Stand by your Ad" legislation as responsible for sharply curtailing negative television ads and generally improving the tone of debate in and around Washington.
Just kidding.
The ridiculous "Stand by your Ad" provisions in BCRA – despite having the avowed purpose of discouraging political speech in the form of negative advertising – were upheld by the Supreme Court in McConnell v. FEC (though, as Prof. Rick Hasen has pointed out, the Court did so with little analysis). Now the Campaign Legal Center reports (and, predictably, endorses) a new House bill that will extend BCRA’s "Stand by your Ad" provisions to the Internet and "robo-calls."
The text of H.R. 894 isn’t available online at the time of this writing, so our observations will necessarily be limited. Once we’ve had an opportunity to read the full bill we’ll offer a more substantive critique, but we suspect that this new bill, if adopted into law, will be about as successful at eliminating negative Internet and robo-call advertising as the old one was at eliminating negative television ads. In other words, not very.
Without having read the bill we’re also curious as to how the law will be enforced. Under the old law, the primary penalty for not including the "Stand by your Ad" disclaimer 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. Of course, that sort of penalty is not applicable to Internet or robo-calling.
In the meantime, for those interested in reading more about the lackluster (indeed, pernicious) results of the original legislation, check out this blog post from last October by CCP Chairman Brad Smith. Money quote:
"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."
