Pushing the Product
Campaign ads are commercial, not political speech
A State of the State essay in which I argue that political advertising is commercial speech in nature, intent and impact and deserves to be regulated as such. This, as much as campaign financing, is the cancer in the U.S. political system.
Regular readers of Illinois Issues might recognize this piece as "Television, as all but the Supreme Court recognize, is a sales medium," which was its published title.
Everyone complains about political commercials on TV, but no one does anything about them.
Under doctrine elaborated in several nearly intelligible decisions of the U.S. Supreme Court, commercials are one of the varieties of free speech protected by the First Amendment. In the words of a recent case (Buckley v. Valeo), the justices in the majority stated, "The First Amendment affords the broadest protection to such political expression in order 'to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'"
Fine-sounding words, if a little long for a sound bite. The problem is that television allows no such "interchange of ideas." Letters to editors do. Call-in radio does. Heckling speakers on street corners does. Chatting over coffee with the Libertarian in the next cubicle does. E-mail, questionnaires, polls—all do. Only TV does not.
Television (as all but the Supreme Court seem to recognize) is not an information medium but a sales medium. Political ads, indeed politics in general, have appropriated the techniques of marketing, and increasingly the content. "Entrepreneurial candidates" create their own products—bigger and better tax cuts, a new and improved crime bill, miracle cures of all kinds—and find and exploit markets for them. Listen to the disaffected voter and you'll hear not the sigh of the cynic but the whine of the dissatisfied customer.
In short, political advertising is commercial speech in nature, intent and impact. Unfortunately, the huckstering of office seekers is beyond the improvements of consumer watchdog agencies. In the 1940s and '50s, the U.S. high court held unambiguously that commercial speech was not protected by the First Amendment, whose coverage was limited to public interest, not private profit. This was simplistic, of course. What is for private profit may in fact be of public interest, even if it is not always in the public interest.
In the past 40 years, the court has extended the cover of the First Amendment to more and more varieties of commercial speech. By 1976, the court had essentially erased the line between political and commercial speech by ruling that spending by a candidate or a party (including spending on TV advertising) may not be restricted in any way because it is a form of speech.
Decisions in subsequent cases have made the usual exceptions and qualifications, but the justices have not altered their fundamental notion that commercial speech such as TV ads—with important exceptions, which we will come to—deserves constitutional protection.
This opinion has the force of law, but not common sense. The Economist in 1997 properly referred to the outcome of that 1976 decision as a "dotty rule." Jerry Landay, associate professor emeritus in journalism at the University of Illinois at Urbana-Champaign, was less restrained when he complained in the Chicago Tribune recently that the high court's interpretations have turned free speech right into a "legal cover for liars."
End of discussion? Not quite. The court has generally upheld that governments may restrict even truthful ads if they encourage people to do bad things. Puerto Rico bans ads that urge its residents to gamble away their money in casinos, for example, and Oregon bans TV ads pushing hard booze.
That TV ads can entice people to do things against their own interests is what recommends them to politicians. (The massive Illinois working-class vote for Ronald Reagan falls into that category.) But while plenty of people could make a convincing case that voting for Chris Lauzen or Dan Hynes is not in the public interest, it would take take a clever lawyer to convince any court that it is not in the public interest to vote for either.
Happily, there is another exception to the high court's doctrine of protection for commercial speech. In its 1995-96 term, the court restated an old notion this way: "In accord with the role ... commercial messages have long played, the law has developed to ensure that advertising provides consumers with accurate information about the availability of goods and services."
As Landay points out, the Securities and Exchange Commission can regulate the form and content of securities solicitations to protect investors from fraud. The Federal Trade Commission regulates advertising it deems deceptive. The Food and Drug Administration (rather more energetically) regulates misrepresentation in pharmaceutical ads and product labeling.
Whether these agencies ensure that advertising provides consumers with accurate information is debatable, but what matters here is that the principle is well established that the state has the right, even the duty, to regulate commercial speech that is misleading. As was summarized in the high court's 1980 Central Hudson case, commercial speech that misleads or pertains to an unlawful activity has no claim to First Amendment protection.
We will not here explore whether a session of the General Assembly has come to constitute unlawful activity. But this question remains: Are TV political ads misleading? Certainly, many of them are. Are they misleading enough (or rather, are they misleading often enough) to be stripped of their First Amendment shield as a class of advertising?
The state of the art may be deduced from the fact that "adwatch" news features that analyze candidates' commercials tend not to report whether the ads distort the truth but how much. Of course, TV ads in general are meant to be deceptive. This is not the same as inaccurate —most political spots are misleading and accurate, carefully crafted by PR professionals adept in the art of not telling the truth without lying. Even commercials that are not deliberately misleading tend to deceive. The medium's messages are stripped of both context and content; a 30-second spot run by the Glenn Poshard campaign—typical of the genre—sums up a complicated case involving George Ryan's brother and a controversial Corrections contract in 38 words.
If politicians are a product, ads that tout them need to meet the same (admittedly low) standards of accuracy as ads for automobiles or headache potions. To head off state regulation, some people in the broadcast industry are pushing for voluntary standards. The departing chairman of the American Association of Advertising Agencies has urged his colleagues to clean up political campaign advertising through more stringent standards relating to campaign claims, statements and pictures. Voluntary industry guidelines already are the effective standard for most forms of TV advertising. Their extension to political ads would give us political ads no worse than the rest of TV ads—but no better either. The FDA experimented with letting pharmaceutical firms advertise prescription drugs directly to consumers via TV; according to The New York Times, of the 22 products hawked in the past year, the FDA has found that commercials for 11 of them have been misleading in some way.
The state of Washington in 1984 made the use of political advertising containing "maliciously false statements of material fact" prosecutable under civil law. That state's Supreme Court recently struck down the law. The ruling seems driven by ideology, and thus gives no guidance in the admittedly tricky business of equitably distinguishing honest from dishonest ads. The form of the TV spot is as much a problem as the content; the "facts" in a 30-second attack ad are usually the least persuasive part of the presentation.
A reform scheme advanced by the Free TV for Straight Talk Coalition gets closer to the heart of the problem than most. The group argues for free TV and radio time for political parties through a broadcast time bank. But unlike most other reformers, coalition members would make use of that time contingent on the candidates themselves delivering the messages. (The coalition would have free time supplement paid ads, presumably to frustrate First Amendment challenges.) The plan thus would limit the use of paid commercials as the medium of political discourse.
Why not banish all paid TV spots, as proposed by former NBC News President Reuven Frank, among others? There are many public goods that outweigh the harm caused by the abridgment of commercial speech. In 1971, a federal appeals court upheld Congress' ban on cigarette advertising on radio and television. The Supreme Court in 1976 authorized a cap on federal campaign contributions that limited the political "speech" of individuals and PACs that wished to donate on grounds the government had a legitimate overriding need to prevent corruption.
A flat ban on TV political ads is not a proscription on political coverage or even on political advocacy by candidates and parties, merely on their form. (The Illinois Campaign for Political Reform wants Illinois TV stations to air five-minute mini-debates between the candidates for governor during regular news broadcasts.) Other Western nations, including Japan, strictly limit candidates' access to broadcasting. Indeed, Britain forbids candidates and parties from buying television or radio time. Debate bubbles away, nonetheless, in letters columns, on billboards and bus stops, in the taverns and on the trains.
Far from destroying political speech, such bans encourage the possibility of real political speech.
A ban on TV spots would not, of course, solve the problem of dirty campaigning. Were TV ads to be banned, candidates would try to get access to TV by manufacturing "news." Anything short of a draconian ban would leave candidates and parties free to buy other forms of advertising, like the bogus "debates" pioneered by the wily Richard Nixon. Media planners would quickly perfect the art of the "attack" billboard.
Would the cure be worse than the disease? The judicial majority in that Washington state case wrote that the voters don't need government to separate the true from the false, making any attempt to regulate the accuracy of political ads "patronizing and paternalistic." In a slightly different context, U.S. Justice John Paul Stevens said the same thing: The state cannot assume that the public will use truthful, nonmisleading commercial information unwisely. But can the state assume—and this is the assumption underpinning the present state of affairs—that the public will use nontruthful, misleading information wisely? ■