Why campaign advertising has grown more pervasive
If it seems like you are receiving more campaign literature and tuning in to more political advertising than ever before, and some of it is unwelcome, the convergence of two U.S. Supreme Court cases could have something to do with it. My own clients seem to reflect the general attitude when a number of them say they cannot wait until elections are over.
The older Supreme Court case is less to blame and less at issue but deals with content. In New York Times v. Sullivan, a 1964 case, the court decided that, where a public figure is involved, the publication of statements, even incorrect or false ones, could not be made the basis for a lawsuit for libel or defamation unless “actual malice” could be shown.
Actual malice is an extremely tough test and the case basically opened up public figures to almost any statements during an election campaign.
The recent case was just decided earlier this year and is Citizens United v. Federal Election Commission.
In Citizens United, the court reversed a prior line of cases which controlled contributions by corporations and unions.
As described in a bulletin issued the same date by the Center for Governmental Studies, a non-partisan group, “Today, the United States Supreme Court overturned decades of case law to hold that corporations and labor unions can freely use general treasury funds to fund advertisements that support or oppose candidates before an election.
“This decision is the earthquake before the tsunami of corporate funds which will flood the political marketplace in the 2010 midterm elections,” said Jessica A. Levinson, director of political reform at the Center for Governmental Studies and adjunct professsor at Loyola Law School.
According to CGS, “prior to the Citizens United ruling, corporations could only use funds voluntarily given by officers and employees to political action committees (PACs) to make advertisements in favor of or against candidates running for elected office. Labor unions could only use funds voluntarily given by individual union members …”
Obviously, if payments can be made directly from general funds, a great deal of money can be channeled into political campaigns for candidates who support favored legislation. The ultimate results of the Citizens United decision are not yet in but here are some of the claims that flood the airwaves and inboxes. The statements and publications are not necessarily funded by corporate funds and in some cases the statements merely need to be taken in context.
(My opponent) voted for $500 billion in Medicare cuts.” Not true (and I have seen this even in corporate presentations). Cuts were to massive subsidies provided by taxpayers to Medicare Advantage, that is, to insurance companies. The law prohibits cuts to Medicare.
“(My opponent) has never created a single job.” Obviously it depends what position one holds whether one is legally authorized to create jobs.
One candidate has claimed that his opponent would eliminate certain specific programs. The only basis for this is a general statement by the opponent that he would order across- the-board cuts.
Another candidate claimed that jobs in a given amount were lost during his opponent’s administration. While this was technically true during the recession, taken in context, the overall unemployment figure was lower than the national or statewide averages. A related claim that the opponent failed to reduce property taxes after taking office is true. He neither raised nor lowered taxes.
Some ads raise military service in support of election. In one ad, a candidate claimed that, although his opponent gave admirable service, the fact that he was elected and served in Washington detracted from this. This argument could presumably be used against any incumbent who formerly served in the military.
All of this makes clear that homework is needed before weighing in on the relative merits of claims during a campaign.
As one recent example, although campaigns have claimed that wasteful earmarks would never be supported, an organization known as the Center for Public Integrity uncovered another practice known as “lettermarking” in which legislators, including those who voted against stimulus bills, wrote letters to agencies requesting stimulus funds to be used for specific projects after the fact. The organization is located at www.publicintegrity.org. A listing by state is published there.
It looks as though some research needs to be conducted to go beyond the words of any ads either received in the mail or by public media.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.