In a post, titled “A HUGE DEVELOPMENT IN FEC 527 ENFORCEMENT?” from Rick Hansen’s Election Law Blog (http://electionlawblog.org), it appears the FEC has made a recent ruling on allowing more flexibility on communications for 527 political committees.

According to Hansen:

The FEC, without a press release, recently posted this letter (see also here) in regards to a complaint filed by Democracy 21 and the Campaign Legal Center against the Lantern Project (MUR 5854). The Lantern Project ran ads that were critical of Rick Santorum, then running for U.S. Senate reelection, but that did not contain express advocacy. For example, one ad said: “From privatizing Social Security to cutting student loans for the middle class, when Rick Santorum has to choose between siding with George Bush or middle class Pennsylvanians, Santorum supports Bush. What is he thinking?” The group’s mission statement said its purpose was to “shine the light on Rick Santorum’s extreme positions, failed policies and hypocritical statements — and let the facts speak for themselves.”

Though the FEC agrees the ads are critical of Santorum, and arguably at least one of them attacked his character or fitness for office, they did not constitute an expenditure because they neither contain express advocacy nor do they meet a WRTL-type test for the functional equivalent of express advocacy.

If this is going to be the standard for what 527s can do in the next election without running into the danger of being classified as a political committee, I expect the next few elections will see a great growth in this activity. I think this ruling will take a lot of fear away from potential 527 donors in the next election.

For political parties, interest groups and political advertisers this could be considered big news.

Over the past several years, 527’s teeth have been filed down as a result of rulings and legislation that ramped up regulations in what a 527 could or could not say in their communications within the theater of a particular election.  There have also been new regulations on 527 donor reporting, in an attempt to shed light on the funders of these groups, which pared back their ability to get large donations from individuals who desire to have their identity and contribution completely veiled.

Hat Tip: @politicsmag via twitter

Here’s an interesting question posed by an old friend of mine who is not in politics, but who works in television and film production. 

“In this election cycle, political ads have made a turn from skewing reality in ones own favor to, at times, outright lying.  Is this going to completely backfire on candidates and those who make these ads?  Look at it this way, political ads do work, particularly with swing-voters (who these “swing-voters” are and why they haven’t made up their mind yet in these divided times is a topic for another day) but if people start feeling like they are outright being lied to it stands to reason that ALL political ads will start to lose there ability to persuade.  This is why governing bodies in advertising censor agencies and brands that lie as they know that negatively effect everyone in this business.”  

Recently, several ads have made it to air in the presidential election that have gotten quite a few people in the media and on the internet pretty riled up.  One spot, created by the McCain campaign received a significant amount of attention, accusing Barack Obama of supporting teaching sex education to kindergartners.  While the McCain campaign defends it’s spot, the Obama campaign called the spot untrue and claimed it was a distortion of Obama’s stance.  Who can you believe?

Now let’s get to answering my friend’s question(s)

For those in politics, ads this cycle do not appear anymore harsh or nasty than any other cycle prior.  When you’re in this business long enough you get to see some very heavy hitters.  However, there is a markable difference between heavy hitting negative attacks and clearly untrue attacks.

The gray area in campaign attacks come when a campaign and their team takes a shred of truth and crafts an entire ad around it, making further insinuations and accusations that fall far from the actual truth itself.  But any legitimate political media consultant will not create all out lies.  Lies do tend to backfire on campaigns that dispense them.

When any campaign runs a demonstrably false ad or makes false claims it risks exposing itself to multiple forms of backlash that exist in the political theater.  Below I have listed the forms of potential backlash that a campaign exposes itself to when it takes a path of false attack.

VOTER BACKLASH – As I have discussed in this space prior, the American public no longer detests negative campaigning and contras advertising.  They have come to accept it as normal practice and welcomed aspect to our political election process.  However, people do not have any tolerance for attacks that are far-fetched, untrue, racially biased / sexist, character assassinations or attacks on families or other deeply personal attributes.  Attacks of this nature tend to draw immediate backlash from the voters, who make their own judgements and who will decide to view the candidate executing the attack more negatively than the candidate they are attacking.  

NEWS MEDIA BACKLASH – The second form of backlash against false attacks comes from the media covering the election.  Since Watergate, the news media has evolved from basic reporting on elections to campaign watchdog.  Many news outlets have a fact check feature, where they monitor campaign TV ads and make and report on their belief of the legitimacy of the attack.  In most instances, the media will run this segment on TV or in the newspaper and review the claims and determine if any truth is stretched and make any clarification.  However, in instances where an outright lie is purported, the news media will run a story about the ad and question the candidate or campaign who made the false allegation.  This type of reporting will make the campaign that conducted the attack lose credibility and damage them in the media.  If these stories gain traction and get picked up by multiple outlets, the damage to the accusatory campaign will be compounded.

BROADCAST STATION BACKLASH – Broadcast and cable TV stations have become much more adept at reviewing political advertisements before they place them in in logs for airing.  Larger stations have their attorneys check many of these ads, while others leave this work to station managers or traffic directors, who have become much more aware of what to look for in an ad that may raise questions.  Often, stations will require back-up for any claims made and will request any other information that may support such claims if they feel the ad appears to cross any lines.  Stations reserve the right to not air any advertisement that appears untrue or is proven false.  However, once an ad is up, it is very difficult to have it pulled down.  Once stations make a decision to air an ad, they tend to standby that decision.  often candidates that believe they are being falsely attacked try to have an ad pulled and learn the hard way that this isn’t an easy process (and by the time they do get an ad pulled it already has 500 grps behind it).  but if an ad does get pulled, this can become embarrassing and damaging to the accusatory campaign.

LEGAL BACKLASH – This is the hardest to prove and truly make anything of.  Every so often, candidates will make claim that they will sue an opponent for defamation of character or libel.  Rarely do these cases make it to court, but if a candidate does choose to pursue this route it could put the accuser and any others named in the suit in an uncomfortable legal position.  

Ultimately, false attacks can backfire on candidates, and depending on the type of false claim, they can lose a lot by taking such a risk.

A perfect example of this was Felix Grucci’s campaign for re-election in 2002.   Grucci, a first term member, was considered a shoe-in for re-election in New York’s First District on Long Island.   Running against little-known, and not well funded Southampton College, provost Tim Bishop, Grucci’s campaign launched an attack ad claiming that his opponent had ignored sexual assault charges at the school. As it turned out, the claims were based on inaccurate and discredited information from the college’s student newspaper. The attack backfired and Bishop was narrowly elected, one of just a handful of Democratic bright take downs in a big election cycle for Republicans.

CAMPAIGN REGULATIONS – Governing bodies do regulate political advertising, but not in terms of actual claims made.   Candidates and campaign committees must abide by federal election law, which falls under the authority of the FEC, aka Federal Election Commission.   Other groups fall under the authority of the IRS depending on their tax status.  But these organizations only dictate, timing of spots in an election cycle, how they can be paid for, and what specs the disclaimers must abide by.  

But there is an important point made by my friend’s inquiry.  If there continues to be an increasing amount of false campaigning, we can expect that there will be action taken.  Almost any industry that fails to regulate itself, will expose itself to forced regulation by the federal government, even campaign politics, which is made up by members of the federal government.