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Stealth Campaigns – Part Four (cont.)

Jackson continued, “But Bush actually supported a ban on automatic weapons like the one shown in the ad. Those weapons had been illegal for decades and they remain illegal today. The law that Bush allowed to expire was had nothing to do with these particular guns and was inaccurately named an assault weapons ban by its sponsors.”

In the Swift Boat ads, Jackson said, the truth was impossible to discern. It was essentially a disagreement about something that happened many years ago under the stress of battle. “It’s entirely plausible to me that everybody is telling the truth as they remember it,” Jackson said.

Professional media advisers were critical of the quality of many of the ads created by independent groups, particularly those that “dumb things down.” Media consultant Murphy said: “Bumper-sticker politics is what we got. And I blame the voters as much as anybody. If voters didn’t vote for dumb campaigns, there wouldn’t be any. … I just remember when I started, there were more rules. … But now it’s like, ‘Who has $3 million for a negative sledgehammer ad that’s 51 percent true?’” Likewise, Tad Devine, a Democratic consultant who worked on the 2004 Kerry campaign, complains that voters do not distinguish between ads sponsored by the candidate and those produced independently. “What people saw from these independent groups was our campaign,” he said, referring to the 2004 Kerry campaign. “They thought that was us talking even though it wasn’t.”

The First Amendment clearly protects independent groups that sponsor political advertising, no matter how inflammatory. Congress tried to limit independent advertising when it changed the law in 2002. Previously, groups were free to broadcast attack ads at any time during the election cycle as long as they did not use the terms “vote for,” “support,” “elect,” or similarly explicit “magic words” in relation to a particular candidate. A most remarkable example was a television ad that was intended to scuttle the 1996 congressional candidacy of Democrat Bill Yellowtail in Montana. The ad said: “Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail’s response? He only slapped her. But ‘her nose was not broken.’ He talks law and order … but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments – then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values.” Years later, in upholding the 2002 campaign finance reforms against an initial challenge, the Supreme Court cited this ad as an example of the type of sham “issue ad” which Congress and the FEC could regulate as a campaign ad. That would seem to have ended the issue, however it is possible that an independent group can still literally accuse a candidate of beating his wife without risking a court censure.

Just as the 2008 campaign season was getting under way, the Supreme Court ruled in June 2007 that the restrictions the new law placed on independent ads immediately prior to an election were unconstitutional. The court specifically overturned a limitation on airing such ads within 30 days before the primary and 60 days prior to the general election. In an effort to interpret the Supreme Court ruling, the Federal Election Commission announced that ads attacking a policy position of a candidate could be broadcast in the days immediately prior to the elections, as long as they did not mention a political party, the upcoming election, or the candidate’s opponent. Presumably that would exclude a Yellowtail-type attack. But the FEC left open the possibility that a Yellowtail-type ad could be aired if there could exist any reasonable interpretation of the ad as primarily intended to influence a policy issue. In fact, one prominent election law attorney reportedly suggested the Yellowtail ad would pass muster under the new rules if its closing appeal supported a policy issue more specific than simply “family values.”

Independent advocacy groups had reason to be pleased with the FEC’s interpretation of the Supreme Court decision. While the commission clarified that certain ads could not be challenged, it left a gray area that would require more adjudication. Thus, the independent groups appeared to be free to broadcast their attack ads with some confidence that there will be no legal consequences, at least until long after the election was over. This was essentially the same legal climate that prevailed in 2004. Paul S. Ryan, an attorney at the Campaign Legal Center, characterized the independent groups’ attitude as follows: “We are going to take the risk that the FEC is not going to come after us. And we are going to hope that even if the FEC does come after us, this thing won’t be resolved until a couple of years after the election and any fine that they impose on us is going to be miniscule in proportion to the amount of money we raise and spend.”