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False Campaign Ads: Pros and Cons of Regulation
October 11, 2004
In a spirited and provocative discussion, Professor Bill Marshall of UNC-Chapel Hill outlined the pros and cons of regulating deliberately false campaign ads. Recognizing the problem to be a severe and growing one, before a large gathering in the auditorium of Ohio State's Moritz College of Law, Marshall nonetheless concluded the cure would likely be worse than the disease.
Whenever judges decide whose speech is true and whose is false, you have to worry about the partisanship of the judges, Marshall said. After Bush v. Gore, he added, we realize that we can't trust the judges to be neutral umpires of the political process.
Marshall was selected by Election Law @ Moritz as the featured speaker to discuss the issue of false campaign ads, an issue that has featured prominently in this year's presidential election, because he has published the leading academic work on the subject (which he self-deprecatingly referred to as the only published work on the topic).
Marshall's remarks were followed by a short response from Edward Foley, the Director of Election Law @ Moritz. Foley, while acknowledging the risks of over-regulating campaign falsehoods, saw risk from under-regulation as well. It doesn't suffice to respond to deliberate lies with the truth, Foley observed. Instead, candidates feel compelled to counter lies with deceptions and distortions of their own.
Foley proposed three new measures to address the problem. First, in the rare circumstance in which bipartisan juries determine an ad to be deliberately false, they may award to the candidate attacked in the ad dollar-for-dollar media expenses, so that the candidate has equal financial resources to respond to the ad. Second, for attack ads sponsored by independent groups (like this year's Swift Boat ads against Kerry), candidates attacked could be freed from campaign finance restraints to raise funds equal to the amount spent in the attack ad. (The difference between the first and second proposal is that, in the case of a jury-determined deliberate falsehood, the money for the response would come from the sponsor of the attack ad itself.)
Third, and perhaps most unconventional, Foley suggested an expansion of the new www.FactCheck.org phenomenon, in which a trusted nonpartisan organization polices the truth of political campaigns. Foley specifically proposed a "Truth-o-meter" by which FactCheck rates each candidate's truthfulness. Just as movies like to get a four-star rating from a leading film critic, the candidates would want a high rating from the Truth-o-meter. Consequently, they might just cut back the degree of deceptions and distortions in their campaign communications.
The exchange between Marshall and Foley was moderated by Ohio State's David Goldberger, who generally shared Marshall's skepticism about the ability of regulation to address the problem of campaign deception without making the problem worse. Questions from the audience also reflected this same skepticism. Foley countered by saying that his proposals were modest measures designed to facilitate the dissemination of additional speech in response to deceptive ads, thereby enabling the public to become better informed consistent with First Amendment values. Few seemed persuaded, however, and the conversation ended with most sharing Marshall's view that, for better or worse, the problems of deceptive campaign advertising will remain largely unaddressed by our legal system.