Politics D6

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Politics The Town Voice Balanced

Campaign Finance Reform

By Arlon Staywell
Staff Writer RICHMOND — A remarkable development in recent years in political campaigning in the United States is the paid personal attack campaign ad. Rather than discussing the issues more immediate to the voters, the ads discuss personal attributes of opponents. Many believe the campaign is not the proper arena for such personal attacks. They find the ads a distasteful distraction from the things that more directly concern the public. They hoped politicians using such tactics would learn to focus on public issues.
Can personal attack campaign ads be stopped? The answer is no. The personal attributes of candidates are not wholly insignificant to the campaign. The first amendment would never allow silencing critics of them. Hopes the ads would simply go away have not been realized, and there is nothing that can be legally done to stop them.
There are, however, ways to improve them that are quite legal. One is to guarantee that the person attacked gets an opportunity to answer. There is no courtroom in this country where a plaintiff may bring charges against a defendant without the defendent having an opportunity to answer them. Most people can understand that it would be wrong not to hear the answer. Similarly, candidates for office who are named in personal attacks should be given an opportunity to answer. If a thirty second ad personally attacks a candidate then that candidate should get thirty seconds to respond. Who pays for it? One way would be to ask the taxpayers to cover the cost; that is not likely to succeed. A much more simple and fair way is to cut the attack ad in half. If a politician wants to buy a thirty second ad that personally attacks his opponent, he can either take fifteen seconds for himself and leave fifteen for the opponent or keep thirty himself and pay for an additional thirty. A similar rule for the space in print ads would hold, and in either case similar prominence should be guaranteed.
This in no way "limits free speech." Many people cannot afford a thirty second ad, or a fifteen second or even a five. They don't get an opportunity to speak as it is. Only people who can afford paid ads may use them as things stand now.
Of course there are opinion pages, call-in shows and various means of "free" expression which literally incur for the speaker no publishing or broadcasting costs. If an attack is free then the response should be free also; that in no way burdens the public. Publishers and broadcasters simply allow people attacked for free in their opinion sections an equally free response.
This new law solves several problems:

1. It provides an incentive for politicians to concentrate on issues more directly concerning the public.
2. If some personal characteristic of an opponent is significant to an election, there is nothing stopping that issue from being raised except the need to provide time or space for a response.
3. Broadcasters and publishers no longer have to cover the cost of maintaining fair and balanced coverage of the several sides of a story with their own writers when candidates cannot afford it.¹
4. It encourages politicians to face each other in more orderly debates.

What is absurd about opposing this law because it might "limit free speech" is that without it speech is more limited and in a way obviously unfair.
The legislators will eventually decide the actual language of the law. There are details and nuances to consider. The following is my suggestion to the General Assembly of Virginia for their law:

§24.2-1013.5 If any paid advertisement uses the name or image of any specific individual opponents without permission from the individuals and mentions anything beyond the indisputable facts about them, the individual or group paying for the advertisement shall also provide for one of either equal time if a broadcast or equal space if a print advertisement and whether print or broadcast equal prominence for the identified individual to respond.

Some ideas for improvemnets include notifying the opponet. Care should be taken not to require the opponent to acknowledge he was attacked. The attacked politician might ignore the notification and thereby limit free speech discussion. That would be unconstitutional. Notification that does not require acknowledgement is probably constitutional if there is a convenient means to do so. Existing forms for reporting campaign expenditures might add a checkbox indicating "paid personal confrontation advertisement" and a box for the name of the attacked. These forms are publicly accessible. Virginia has such forms and could easily add such boxes. Difficult and complex notification requirements should be avoided as possibly limiting free speech. If the ad is seen by many in the public there seems little need for other notification anyway.
Another change might be to eliminate the part about "beyond the indisputable facts." The reason being those facts aren't always clear. Professional publishers and broadcasters daily decide issues of fact versus opinion because keeping them separate has traditionally been vital to the business. You should know there is an "opinion page" in most newspapers. So called "hard news" isn't supposed to express the opinions of the writer or the publisher. Lately opinions are more popular than hard news; column writers and talk shows abound. This does not mean that publishers or broadcasters have forgotten their mission. This website is my "column" website because it is a monthly overview of events and where the opinions are especially suspect for lack of good data I put an extra notice so indicating and invite readers to send in information. It does not mean that I can't write hard news or have any special difficulty separating fact and opinion.
My experience with political reporting is that the characterization of opponents' voting records is prone to cross the line between fact and opinion. As a hypothetical example consider a leash law, a politician might accuse an opponent of "passing a law that wouldn't allow kids to have pets." There is no way to avoid that sort of misrepresentation. It is considered freedom of speech. It is an important part of politics. All that can be done is to allow the response, "of course kids can have pets, they just need to use a leash when they are not in their house or enclosed yard." Some voting record attacks are unfair because the attacked politician agreed with a general idea but found some defect in the wording or another bill that solves the problem better.
The only time such voting record attacks might be allowed without provision for a response is in the case of a famous bill where the public already knows the full text of the bill. An attack ad might then say, "my opponent voted against House Bill 4747" without any need to explore the opinions of what that means. Attack ads might do that in any case, but unless the public knows what "House Bill 4747" says, the ad is pointless. In cases where the full text of a bill is short enough to fit in an ad, then a voting record might be noted, but there is still a need to avoid opinions that characterize individuals unfairly. Personal attacks require time for a response. It is really simple for those experienced in the business.²
Finally let me add a few words about a problem that easily might go unnoticed otherwise. Care should be taken to avoid making elections look like trials. People who lose elections should not feel as though this indicates guilt of anything. That would discourage discussion and participation. This new law might be viewed as making the election look somehow more like a trial. It is not the new law that does that, it is the attack ad that does that. I believe Democrats and Republicans need to be more "sporting." That isn't to imply that elections aren't serious, of course they are, but the atmosphere could use less invective.
Former "equal time" laws were found unconstitutional, but they did not distinguish between general political comments and personal attacks.
¹ "Fair and balanced" reporting is a longstanding tradition in journalism, sometimes sorely misunderstood, but always upheld correctly here.
² It is because of the experience in the business of political reporting I received from VCU that I got the idea for the law.

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Former "equal time" laws were found unconstitutional, but they did not distinguish between general political comments and personal attacks.
Arlon Ryan Staywell