Sure, we’ve all been saturated with those tiresome “issue ads” bought by Super PACs, and we understand that it’s a direct result of the Citizens United ruling. News outlets have done a pretty good job of educating the public on this being the reason we grimace every time we turn on the T.V.
However, there is much of which the public is unaware – things the media would rather you not know. (Hint: they are violating FCC rules when they run many of those issue ads).
As you can guess, television and radio stations are making a killing on these. With Citizens United paving the way for an endless stream of 3rd party issue ads, this presidential election is now like the Super Bowl – but all year long. Stations set their rates based on demand. Traditionally, these rates increased somewhat during an important election, but now they’ve become an economy unto themselves. Just months after the corporate personhood ruling, issue ads accounted for $4 billion in ad revenues, so we can easily forecast that for this election year, the sky is the limit.
Few people are aware of some key legal differences between candidate ads and issue ads. These distinctions are not minor, in fact they can spell big legal trouble for media outlets that run untruthful issue ads, and possibly the PACs responsible for them too.
By law, a station may not alter, censor, or reject a candidate ad. Period. And, they are also not liable for their content. But, not so with the issue ad. Indeed, they are completely liable for the veracity of an issue ad…every last bit of it! They can be sued if the ad contains lies. While opinions and commentary are A-okay, falsehoods are not.
And there in lies the rub. Issue ads are a very lucrative business for these stations, and candidate ads are not (more on that below).
Citizens United is young, and we have yet to see a legal challenge on the veracity of an issue ad bought under the unlimited financial powerhouse of this ruling, but it is certainly not out of the question – especially given the almost laughable whoppers filling the air waves…it’s only a matter of time. Such a lawsuit would enjoy broad public support. A recent PEW Research poll indicates that 65% of Americans that are aware of Citizens United feel that it has had a negative impact on our democratic process. That percentage is particularly striking because it holds true across the political spectrum.
Here is just such an ad that could potentially create legal exposure to the media outlets that choose to air it. It’s about the failed solar energy venture Solyndra. You’ve probably seen it. The ad is paid for by Americans for Prosperity. It was broadly distributed and made a bundle of money for television stations across the country.
Television media is playing with fire by running these dubious ads, yet surprisingly few of them seem aware of it.
Stations are licensed to act in the “public interest”, so legally speaking, if they have reason to suspect the validity of the content in an issue ad, they are compelled to investigate. To protect themselves from litigation they should look in to it – whether the question originates from within, or if a viewer complaint was lodged. If there is a possibility that an ad is deceptive, intentionally misleading, false, or fraudulent in nature they are legally compelled to act.
Don’t feel bad about the legal burden this places on the media outlets. When it comes to issue ads, they enjoy broad powers to protect themselve from the politically corrosive and possibly litigious effects of sketchy third party ads.
By law, they are not even required to accept these ads. Plus, they may require the buyer to alter the ad to remove anything deemed false or objectionable, and they need not even justify their demand.
As a further level of insulation from legal liability, the station may require the ad purchaser to enter into an indemnification agreement relieving the station of responsibility for the ad’s content. However, selective use of indemnification could be viewed in court as tacit approval of questionable content…so that gets a bit dicey, to say the least.
We tend to think of third party issue ads as impacting just the big races and issues, but they deal a crippling body blow to down-ticket candidates too.
Candidate ads are given what’s called the “Lowest Unit Charge” (LUC), meaning they get the best discount rate. But, rates are market-driven, meaning high demand for airtime raises all rates, including the LUC – the Super Bowl effect. Issue ads dramatically inflate pricing across the board. We can now expect untold numbers of Super PACs playing in the big game this year, it’s a crowded field – and they are all competing for a finite number of 30 and 60 second spots…putting the squeeze on all the down-ticket races.
So, just how does this impact you and your local races? Allow me to share a personal experience I had as campaign manager for a 2010 district court race. Having had previous experience in camapaign media buys, I thought I knew what to expect in terms of pricing and availability. Depending on various factors, local network time should have been at most a few hundred dollars for a premium slot, but it shot up to $1,300 for a 30 second spot. A district court race is run on a shoestring, so you can imagine the impact this had on our already tight budget. Even the media outlets were surprised, and more than a bit pleased, with the new economy of scale.
We can safely forecast that this election year is going to be brutal. The issue ad tsunami isn’t ebbing anytime soon. Until the Citizens United ruling is overturned, Super PACs, like Americans for Prosperity, will own the air waves.
Amy Kerr Hardin