Montana News
Why political ads don't have to be truthful
(upbeat music) - Welcome to The Big Why, a series from Montana Public Radio where we find out what we can discover together. I'm your host, Austin Amistoy. This is a show about listener-powered reporting. We'll answer questions large or small about anything under the big sky. By Montana's for Montana, this is The Big Why. This episode, we welcome back reporter John Hooks. - Hello, John. - Hello, Austin. So I hear you're back with a new election-related question for us. What topic are we tackling today? - We are looking at, by far, the most annoying aspect of any election year, political ads. - John Tester, too liberal for Montana. - I may not look like the other senators, but that's not... - Oh, man, they are inescapable. Whether you're watching TV just on the internet, you can't miss them, they're everywhere. - You're not alone, Austin. - Mary Barent, a retired teacher up in Whitefish and a Big Why listener, is going through the exact same thing. - Oh my gosh, they just go on and on. - Another out-of-state tech millionaire comes to Montana, playing cowboy. Just like the... - We see a little bit and it's like, okay, go from this ad to the opposite to the opposite to the opposite. And you know, all in a matter of one commercial break, and I go, all right. - Mary told me that she sees a lot of exaggerated claims and attacks in these ads that have her wondering if there is any amount of fact-checking that's required in political advertising. - I have always been very skeptical of political commercials, and they always make these claims, and so it made me wonder if there was anybody checking before they were even aired. - Yeah, I've often wondered that myself. There's quite a bit of mud-slinging in these ads. What were you able to dig up on this? - Well, the answer to this is as unsatisfying as it is unsurprising. There is no fact-checking requirement or any real regulations on content in political advertising at all. - Well, that is both unsatisfying and not at all surprising. Can you tell us anything about why that's the case? - Yes, so to get some clarity on this, I spoke to Chris Gallis, who is Montana's commissioner of political practice. - Yes, the commissioner of political practice. I have never been totally clear on what the responsibilities of that job are. - That's totally fair, Austin. His office monitors and enforces regulations on campaign finance, ethics violations, and lobbying in state politics. He told me they regularly get complaints sent in from folks who are upset about misrepresentation and hyperbole in political advertising. - Yeah, our typical reply or standard reply is that we're precluded from any regulation in regard to the matter. - It sounds like Gallis is saying his office couldn't do anything about ad content even if they wanted to, John, why is that? - So there's two reasons for this. Reason number one is that the vast majority of ads that we see are for federal races. That's the House and especially the Senate race between John Tester and Tim Sheehy. Those are regulated by federal authorities. But whether it's federal, state, or local elections, regulations around political advertising come down to how we balance a bedrock American idea, the free speech protections in the First Amendment. Here's Chris Gallis again to explain why. - I'm sympathetic to the notion that these advertisements should be truthful, but frankly, you know, threading that needle in society that's got the First Amendment and free speech is exceedingly difficult, if not perhaps impossible if the cases tell us anything. - Okay, Gallis mentioned some case law there. Are there specific examples that could help us understand this? - We actually have a relatively recent example from right here in Montana. Walking us through this is Mike Denison who's covered politics in the state for decades. These days he's a political analyst for the nonstop local TV stations in Montana. - There were some attempts, I'd say probably in the last 15 to 20 years by the legislature saying that if you quoted someone's record that you had to be able to show that that was accurate. - In 2012, two Montana laws that essentially created a kind of fact-checking requirement were challenged in federal court. Well, how did they thread that First Amendment needle Commissioner Gallis mentioned earlier? Eh, not very well. - I think all of them were struck down in some form or another because they were either deemed too vague or that they were somehow trampling on free speech. They were struck down by federal courts. - Courts are extra skeptical of regulations on political speech and the judge in this case ruled Montana's fact-checking requirements were too broad and too subjective to be enforced without trampling on the right to free speech. So if a fact-checking law is too broad, I'm wondering if there's any kind of content regulation that would be narrow enough to stand? - Well, we do have some backstops here. In theory, at least, you can't knowingly straight up lie in an attempt to ruin somebody's reputation, for an example. But libel and defamation are difficult to prove when it comes to public figures like politicians. So as far as ad content, there's really only one regulation that has actually endured. And we're all familiar with it whether we know it or not. It is the stand by your ad provision. I'm Tim Shee, and I approve this message. - I'm John Tester, and I approve this message. - So that's why they do that. - Yep, federal and state election law requires you to disclose who you are in your advertisements. That includes a verbal endorsement of the content if you're a candidate, if you're a political action committee or an other outside group, you just have to identify what the group is. - So as long as you tell people who paid for it, anything else is totally left to the candidate or committee? - Exactly. And I think it's worth zooming out here and talking about money for a bit. Since the 2010 Citizens United Supreme Court decision, basically anyone can spend any amount of money they want on political ads. And since then, we've seen a dramatic increase in spending. As an example, those kind of groups have spent nearly $30 million on ads related to the Montana Senate race already this election. - I feel like I've also been seeing them in more and more places, television, the internet, anyone watching the Olympics knows, they're all over streaming services at this point. She finished first in fencing. - Fencing off huge swaths of prime Montana pasture from the rest of us. - Oh, absolutely. And this is something else that's relatively new. The amount of targeting that advertisers are able to do on streaming and social media is crazy. You can really hyper focus things and even have an ad that just plays to women, ages 18 to 34 who like the outdoors as an example. - So how did our listener Mary Behrent react when you told her about all this? - Well, I don't think that she was all that surprised. - Yeah, oh, interesting, huh, okay. So they can just put up whatever they want and see what happens. - That about sums up my reaction to, I think, John. Thank you for this explainer. You're welcome, Austin. And one thing I'd just like to say here, you know, as journalists, a lot of our job is fact checking and that becomes especially important in an election year. Here at MTPR, we have a very handy election guide with race profiles and candidate questionnaires for statewide races and there's tons of other great reporting from our colleagues in print and TV. (gentle music) - Now we want to know what makes you curious about Montana, especially when it comes to this year's election. This show is all about answering your questions, so send them to us at bigy.org. Find us wherever you listen to podcasts and help others find the show by sharing it and leaving us a review. Let's see what we can discover together. [MUSIC PLAYING]