Did you know that John McCain thinks Latinos are stupid? Or that Barack Obama wants your 5-year-old to watch sex videos? Sure, neither of those claims (just two of the charges traded by the presidential nominees in dueling campaign commercials over the past few weeks) are actually what's the word? true. But in the world of political advertising, truth is irrelevant. The growing number of whoppers piling up in the 2008 campaign are reminders of an oft-forgotten, unfortunate political fact: it's perfectly legal for candidates to lie to voters in commercials or other advertising.
This may surprise those who were under the impression that the "truth in advertising" standard applied to all advertising. Commercial companies are bound by restrictions that prevent them from making false claims about their products or those of their competitors. Certainly, corporations test those laws all the time, but they do so at a significant risk. When Kentucky Fried Chicken tried to claim that fried chicken could be part of an effective diet program in 2004, the Federal Trade Commission penalized the company, requiring it to pull the commercials and submit all advertising for FTC review for the next five years. Mendacity in commercial advertising can also carry a steep financial price. In 2007, the FTC fined four diet-pill manufacturers $25 million for making false claims about their products.
Candidates are not held to the same commercial standard, and the reason is simple: their statements and advertisements are considered "political speech," which falls under the protection of the First Amendment. The noble idea undergirding what otherwise seems like a political loophole is the belief that voters have a right to uncensored information on which to base their decisions. Too often, however, the result is a system in which the most distorted information comes from the campaigns themselves. And as this year's presidential race is showing, that presents an opportunity for a candidate willing to go beyond simple distortions and exaggerations by making repeated and unapologetic use of objectively false statements.
But it's not just that candidates are allowed to launch unfounded attacks against their opponents or make false claims about their own records. Broadcasters are actually obligated to run their ads, even those known to be false. Under the Federal Communications Act, a station can have a blanket policy of refusing all ads from all candidates. But they cannot single out and decline to air a particular commercial whose content they know to be a lie.
In one of the earliest famous cases dealing with the issue, the NAACP objected to a 1972 political ad from a U.S. Senate candidate in Georgia named J.B. Stoner who was running on the National States Rights Party ticket. Stoner called himself a "white racist," and his ad said the "main reason why niggers want integration is because niggers want our white women." The Federal Communications Commission forced stations in Atlanta to accept the ad, citing freedom-of-speech protections.
Some states have tried to establish their own standards for truth in political advertising, but with little success. Washington State passed a law in 1984 that made it illegal to sponsor campaign commercials that knowingly "make a false statement of material fact." Violations could incur fines of up to $10,000 for each instance, and could also result in election outcomes being voided. After 14 years, the Washington State Supreme Court ruled the law unconstitutional, prompting one of the dissenting justices to complain that it was "the first court in the history of the Republic to declare First Amendment protection for calculated lies."
Such bitter language can seem a bit high-minded for the scrappy political arena. In a country with a free press, after all, journalists are able to fact-check campaign advertisements and let voters know when claims are exaggerated or misleading. What does it matter if McCain says Obama would impose a new tax burden on middle-class families or if Obama claims that McCain proposed abolishing the Department of Education? Candidates lie, fact-checkers out them, and voters have all the information they need to make their choices.
But the free market of ideas doesn't always work so well. As candidates know, a far greater percentage of voters hear the original lie in a campaign ad than ever read about the fact-checked version in a local paper or website like Factcheck.org or Politifact.com. And even if voters do hear the refutation of an ad's claims, studies show that may not alter their perceptions created by the original ad. It may well be that the standards for commercial advertising have worked too well, instilling in many viewers the belief that what they hear on television is mostly true. "You hear people say, 'The ads must have some truth to them, or they wouldn't let them on television,' " says Brooks Jackson of Factcheck.org, a project of the Annenberg Public Policy Center at the University of Pennsylvania. "Truth in advertising lulls us into a false sense of security."
Every so often, Jackson says, a candidate can be shamed into rescinding a false statement. He cites as an example an ad the Obama campaign was using earlier in the campaign in which the Democratic Senator claimed he "worked my way through college." Factcheck.org asked for specifics about the jobs Obama had held, which turned out to be just two or three summer positions. The campaign stopped using the line and changed it to "He got through college with scholarships and hard work."
The example is an exception, though, in a political environment that provides few incentives for scrupulous truth-telling. Candidates simply don't suffer for making false claims, unless those claims become part of a narrative that casts them as untrustworthy. Even then, they often choose to keep running the offending ads, knowing full well that the power of a 30-sec. spot will always outweigh media oversight. And the potential upside of making false claims about an opponent can be great, especially for a candidate who finds himself behind.
Politifact.com is the fact-checking enterprise of the St. Petersburg Times, and it tracks the veracity of presidential campaign statements and advertisements. As of late September, with the two candidates virtually tied, Obama's mostly true to mostly false tally was 65 to 33, while McCain's was 47 to 51. Jackson thinks it's possible that McCain's record is now lopsided enough that he may actually be in the rare position of risking a backlash from voters. "We may be seeing the start of a narrative that John McCain and Sarah Palin are running an untruthful campaign," he says.
Still, it's unlikely that the presidential campaign will wrap up with a string of feel-good ads that promote each candidate's virtues while saying nary a false word about the other. As long as candidates can get away with testing the limits of voters' gullibility and tolerance, they will. If the last few decades have taught candidates anything, it's that truth in political advertising is for losers.