WATERVILLE – With the campaign season in full swing, we are subject to constant political advertising, intended to persuade and not necessarily to provide the fullest picture of reality. We are generally aware of this and generally know we should consume it with a grain of salt.

However, it’s hard to know exactly how much caution is appropriate since rules about campaigns are constantly changing. This is particularly true this election season, when the loosening rules for campaign funding and disclosure and tighter limits on Clean Election programs mean some protections that existed in prior years no longer exist. What follows is a brief review of some things to keep in mind during this election season.

Truth: It’s important to know that political advertising is not like commercial advertising.

Companies that advertise products or services are regulated by the Federal Trade Commission and held to “truth in advertising” standards. Political marketers are not. Because political advertising lies within the more constitutionally protected domain of “political speech,” it can’t be regulated for truth.

Even libel laws can’t compel political advertisers to be truthful, since our political free speech guarantees often protect people who say untrue things about public figures.

Without regulation, a political campaign’s most serious incentive to be truthful lies in the possibility that if voters become aware of untruths they will turn against the campaign. For that reason, we require candidates to claim responsibility for advertising sponsored by their campaign.

However, there are many sources beyond the candidate’s personal campaign that do not have to claim personal responsibility for their advertising. Unfortunately, the distance between political advertising and personal accountability has been growing larger lately.

Disclosure: The Supreme Court’s 2010 decision in Citizens United was transformative, overturning a century-old principle enshrined in federal and state election laws that corporate spending on elections should be restricted in order to prevent corruption or the appearance of corruption.

However, some of the biggest effects of the Citizens United decision come from releasing companies and unions not just to spend unlimited amounts on campaigns, but also to allow them to do so without telling you. Citizens United threw the doors open to a legal class of organizations called “independent expenditure groups” — or “super PACs” — which can collect unlimited amounts of money without meaningful donor disclosure rules.

Donors to these groups can hide by registering as shell corporations that exist purely to shield their identities. Under these rules, if Coca-Cola were a political candidate, Coca-Cola stockholders could create a shell company called “Citizens for Health LLC” and run an advertising campaign claiming that all the Pepsi out on the shelves is contaminated. While “Citizens for Health LLC” might show up on the group’s disclosures, nothing else would be publicly available. Without this disclosure, not only do you not know who is behind the advertising you see, but those groups will face no backlash if they run completely untruthful ads.

This is something to consider when you see a cheerfully named but unfamiliar organization at the bottom of a political ad. Not only do you not know who “Maine Freedom” is, for example — but you’re not supposed to know.

If you were, the companies and people donating to that group would not hide their involvement. They do a good job hiding it, too — all of Maine’s press has been trying to discover who contributes to “Maine Freedom” and they have been unable to do it. We will eventually find out, but it will be long after the election, and therefore long after that information would have served its public purpose.

Public financing: In addition to these changes, we will no longer benefit from the balancing effects of public financing. This is the first general election following the Legislature’s changes to Maine’s Clean Election Act that ended Maine’s matching funds practice.

This change happened because last year the Supreme Court struck down the “fair fight” provision of Arizona’s clean election laws, which let the state match expenditures made against publicly funded candidates.

With matching funds, D.C.-based super PACs such as Maine Freedom were discouraged from pouring hundreds of thousands of dollars into a race because those ads would be balanced by matching public money that would let their targets respond effectively. Without the matching-funds provision, candidates’ advertising will either be easily buried by the super PACs or those candidates will have to forgo public funding and find themselves some similarly deep-pocketed national donors.

Either way, Mainers will see the role of national groups increase in Maine elections.

Emily Shaw is an assistant professor of political science at Thomas College.

 


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