The self-appointed Washington good government watchdogs are appalled by the sea of money washing over the shores of the 2012 election. The rest of the nation is appalled by how that money is used -- mostly on tit-for-tat 30-second attack ads that pollute the airwaves and undermine any respect for the democratic process.
Inside the beltway the issue is the cost of campaigns. Outside the beltway the issue is the conduct of campaigns. But both concerns might be constructively dealt with if the United States ceases being one of the only advanced democracies that does not regulate televised political advertising by time or format or both.
It is impossible to overestimate the destructiveness of these ads, but it is possible to enumerate some of their deleterious effects:
• They are the principal cause of skyrocketing campaign costs. The amount spent on these ads is growing at a faster rate than the overall cost of campaigns. This is, in part, due to the increased amount paid for each ad; in part, because as the viewing audience has become more fragmented, it takes many more ads to have an impact; and, in part, because the consultants who create and place these ads are making themselves increasingly rich.
• They are a principal cause of voter disengagement and reduced turnout. One of the aims of such ads is to reduce the impulse to vote among weak supporters of and undecided leaners toward the opposition. Since both sides have the same aim and effect, they give the citizenry a choice between bad and awful and reduce the impulse to vote, except in some of the most polarized of elections
• They are unanswerable and thus undermine real debate. Political communication in every other medium is received by one sense -- the eyes for print ads and mail; the ears for radio and telephone canvassing. Television reaches two senses -- both the eyes and ears -- and because of that has an emotional impact geometrically greater than any other medium. The images, music, voice-overs, scene setting cannot be answered directly, so they are answered in kind, leading to an ever-escalating arms race of ads that create a miasma over the entire political process.
• At best, these ads are oversimplified, but they often also contain distortions and many stray very far from the truth and in so doing, they obfuscate the real stakes in every contest.
• They empower the non-responsible (to anything other than winning) and increasingly irresponsible political consultants (in their conduct), at the expense of candidate accountability and the durable institutions of American politics.
• Their dominance in how campaigns are conducted reduces the amount spent on grassroots and involvement activities.
• Their power takes issues off the table, undermines reasoned debate and contributes to the decrease in comity within the political process.
The issue is not "negative" ads. A candidate's character, record, issue positions, sources of money and potential advisors are all subject to debate. But these ads are the antithesis of debate.
They are used because the consultants who produce them say they "work," but they "work" for no more than 50 percent of the consultants in any given race, the ones who win, but 100 percent of the electorate loses.
There has been no effective remedy for the damage these ads cause. Codes of conduct have been tried and routinely violated. Ad watches and fact-checkers are no match for the massive number of ads that are aired (as of last week 73,000 in Nevada alone). The hopes built into the passage of "stand by your ad" legislation, where candidates affirm their responsibility for their ads, have not been realized. The usual constitutionally preferred response to "bad" speech is more speech, but more ads contribute to the problem rather than serve as a remedy. They, in fact, undermine any reasonable definition of speech.
There are remedies that have been proposed that either can't work or are dangerous. The idea of some allocated "free" time has been suggested. But that would only work if the presidential candidates were the only ones running and they spoke for the entirety of their party. In reality, each party is comprised of many parts and many candidates, and providing free time for all would likely be impossible and wouldn't be watched. And the suggestion at least one person has made that the broadcasters should act as the judges of what ads should be aired is a truly awful idea.
There are two regulatory remedies that could effectively deal with the problem. Both would apply to all ads whether they be candidate or party sponsored or generated by independent expenditure groups. Both would be effective in dealing with the problem. Both could be passed by Congress and both could likely, but not certainly, be defended against constitutional challenge, which would surely happen.
The first was suggested many years ago by the late and, at the time of his death, former campaign consultant Charles Guggenheim and more recently has been suggested by the very much alive former consultant Doug Bailey. Their remedy would be to prohibit broadcasters from selling any time blocks of less than two minutes, eliminating the worst of the ads, the oversimplified and distorted spot ads that capture viewers within programs.
The second was actually sponsored a number of years ago by the chairs and ranking minority members of both the Senate Rules and Senate Commerce Committees. That legislation would have required that for ads of two minutes or less duration, the purchaser of the ad or an identified spokeperson to speak to the camera for the duration of the ad. This would allow any person or group to buy as many ads as they wish, of any duration they might wish for, to say what they want to say, so long as an identified person does the saying. This would return spot advertising to speech and accountability and, likely because of a uniform talking-heads format, substantially reduce the number of spot ads purchased.
Both of these remedies would go a long way to reducing the cost and improving the conduct of American political campaigns and, perhaps, restore the belief that politics, in Robert Kennedy's words, is "an honorable profession."