When the calendar nears Election Day all over Washington, it can seem like the stream of political advertisements from the TV and radio will never end.
The First Amendment largely protects the contents of these advertisements, and while it can be easy to link a particular candidate or campaign to some of the spots broadcast into your home or car, others aren’t so simple.
“If it’s a federal race, like for president or the Senate or the House, it’s pretty easy,” said Travis Ridout, the Thomas S. Foley distinguished professor of government and public policy at Washington State University in Pullman, who specializes in political communications. “It’s the outside groups that are more difficult.”
Recent court rulings, chief among them the Supreme Court’s decision in the case Citizens United v. Federal Election Commission in 2010, have given groups and individuals with a lot of money the ability to spend on political communications at a much greater rate – and with less transparency – than was previously allowable. Still, Washington state laws require any entity spending on an advertisement for or against a candidate or ballot measure, whether it be a TV or radio commercial, in print or on a billboard, to list the names of their top contributors on the advertisement.
There are exceptions. Advertisements paid for by candidates and their campaigns are not required to provide the names of those donors, and state laws do not apply to federal election communications, including races for Congress.
Disclosures are difficult to see in a short, 30-second TV advertisement, Ridout said, and the names of some political action committees – organizations formed to raise and spend money to influence elections – are often named after innocuous or idealistic concepts in an effort to obscure who or what is behind the organization. In the 2017 contest for a Spokane City Council seat, for instance, a group calling itself Spokane For Honest Government produced mailed advertisements attacking a candidate for health violations at a restaurant he owned. A large portion of that group’s funding came from another political action committee representing the union of Spokane firefighters, a fact that wasn’t readily apparent on the advertisement but could be determined through reviewing public disclosure records.
So-called “super PACs” were created after the Citizens United ruling, and are not subject to the same contribution limits as traditional political action committees, which are restricted to spending between $2,800 and $5,000 on a particular candidate depending on how the committee was formed. However, those groups cannot advocate for the election of a specific candidate. They are required, however, to reveal donors to the Federal Election Commission.
Other groups, often referred to as raising “dark money,” have no such requirement. These tax-exempt organizations may raise and spend to influence politics as long as they aren’t endorsing a specific candidate. They must also prove that political spending is not their primary purpose. Because of this lack of reporting and restrictions on supporting a specific candidate, these dark money groups are often the source of negative advertisements targeting a specific candidate.
Negative ads frequently make claims about a particular politician and may even include a citation to a specific law or respected news outlet as a source for the claim. Such citations aren’t required by law, Ridout said, and are often included to demonstrate legitimacy behind the claim being made in the ad, even if the conclusion is overly simplistic or lacking context.
The only recourse the target of a negative ad has, if they believe their opponent is playing fast and loose with the facts, is to approach the station broadcasting the ad and request it be removed from the airwaves. There are Washington state laws restricting “false political advertising,” but the content must be produced with what is termed “actual malice,” a special kind of intent in defamation that applies to public figures. It must be proved the person who created the ad knew the information contained in it was false, or negligently made no attempt to determine whether it was true before broadcasting it.
“By and large, the First Amendment applies,” Ridout said. “The way you counter speech is with more speech.”
Social media and the rise of ‘fake news’
With access to outlets such as Twitter, Facebook, YouTube and Instagram, there are plenty of options out there for providing “more speech” in today’s political climate and thus influencing elections or policy.
That’s true of both voters and the candidates they seek to put in office. Politicians have made the jump to social media in a big way over the past decade, with perhaps the most prominent example being President Donald Trump’s use of Twitter as a way to deliver official statements and staffing decisions that had previously been fodder for news conferences and news releases.
The current White House’s reliance on social media to directly reach voters isn’t a strategy for political communication that developed in a vaccuum. Trump’s opponent in the 2016 contest, Hillary Clinton, announced her campaign in a self-produced video released on YouTube. And Barack Obama and Mitt Romney also made extensive use of the video-sharing platform in their 2012 contest, according to research by the Wesleyan Media Project, an initiative of the Connecticut university.
Researchers also found that self-produced, online videos by candidates tended to be more positive than those aired on traditional broadcast outlets. However, internet users more frequently viewed and shared the online ads that attacked an opponent. Those findings suggest that impartial efforts to fact-check political communication within the social media sphere are becoming more and more important, as social media users are subjected not only to potentially misleading attacks by the candidates themselves, but also websites intentionally peddling false information in an attempt to sway voters’ minds.
Enter fact-checking websites like Snopes, PolitiFact and the Washington Post’s own fact-checking website, Fact Checker. These are go-to sources when you see a claim made in an ad or at a debate and want to see if it’s based in fact.
But even these sources are limited in their reach, and in some instances may be providing outlets that produce false news fodder for additional stories. A 2018 study published in the journal New Media & Society found that once fact-checking websites published stories debunking myths about the environment, unemployment, crime and gun control efforts, websites producing what could be considered “fake news” followed suit with their own inaccurate pieces, which were then shared on the internet.
There’s also evidence that politicians are now co-opting the conventions of fact-checking outfits to appear more trustworthy to social media users. The social media teams for candidates have begun performing their own “live tweeting” fact checks during broadcast debates or campaign events, in addition to the work by professional journalists working for fact-checking outfits and traditional media sources.
The potential harm, writes the media watchdog nonprofit Poynter, is that viewers will grant the speech of politicians the same trustworthiness as independent journalists.
“On an individual basis, these impostor fact-checking projects may be somewhat harmless,” reads a story from Poynter published in July, as the government of Mexico announced its own, state-sponsored fact-checking bureau. “But taken together, they comprise a potential threat to fact-checkers’ future credibility online. Because if readers think they’re getting fact checks directly from politicians, they may be less inclined to actually do their homework.”
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