May 5, 2008 -- Center for Public Integrity: Stealth Campaigns - Part Four The "Crack Cocaine" of Negativity
By: Sara Fritz

Negativity has always posed a temptation for politicians, especially those who fear they are going to lose the election. Politicians claim to hate negative advertising, but they continue to use it. That's why former Senate Majority Leader Tom Daschle once called negative advertising the "crack cocaine of politics."

Years before the Swift Boat Veterans for Truth made their mark, the name of Willie Horton, a convicted murderer, was synonymous with negative advertising in a presidential contest. Willie Horton was the villain in an ad that attacked 1988 Democratic presidential nominee Michael Dukakis for his support of a prisoner furlough program in Massachusetts. While on furlough, Horton had committed a brutal rape. Experts say the Horton ad, which included a scary photograph of the criminal, a black man, played heavily upon the fear of crime and prejudice against African-Americans.

There is no proof that the Willie Horton ad won the election for George H.W. Bush in 1988, but Dukakis' failure to answer the charge forcefully enough has often been cited as one of the main reasons he lost to Bush. It demonstrated what a powerful wedge negative advertising can be in deciding the outcome of elections. In fact, the Bush campaign officials liked the independently produced Willie Horton ad so much that they repeated the charges in a somewhat milder ad of their own making.

Now the emergence of major independent political groups including MoveOn.org on the Democratic side and Freedom's Watch on the Republican side, and an array of smaller ones similar to the disbanded Swift Boat Veterans, are turning up the volume on the negativity as the 2008 presidential election season unfolds. These groups became the favored tools of quite a few wealthy political donors after the 2002 Bipartisan Campaign Finance Reform Act blocked unlimited donations to the political parties; ever since, they've been a magnet for charges of corruption and egregious exaggeration and inaccuracy. In the 2004 election cycle, said Brooks Jackson, president of FactCheck.org, a nonprofit group that monitors accuracy in political advertising, MoveOn.org was the biggest offender.

The groups attract a fascinating cast of very wealthy people who like to conduct their political forays behind the thickest veil of secrecy they can devise, as well as millions of smaller donors, and in the process they are reshaping the national political landscape and sharpening the art of the negative attack ads.

Even politicians who rail against negative advertising admit that it works. "Voters reward negative advertising," GOP consultant Mike Murphy told the Center for Public Integrity. "They believe negative charges because they [the voters] are so cynical. They are much less quick to believe positive things." Yet it is usually deemed risky for candidates themselves to run negative ads. Patrick Buchanan discovered the downside in 1992 when he ran a presidential primary ad in Georgia that excoriated incumbent President George H.W. Bush for supporting federal funding of a documentary about gay black men. The ad claimed that the "pornographic and blasphemous" film "has glorified homosexuality, exploited children, and perverted the image of Jesus Christ," but Georgians apparently refused to blame Bush for one $5,000 grant awarded under a much larger legislative initiative.

When independent groups sponsor negative ads, however, standards of proof evaporate because the attack cannot be blamed directly on the candidate. It was Terry Dolan, chairman of the National Conservative Political Action Committee in the early 1980s, who, apparently hypothetically, in an interview with The Washington Post , explained the phenomenon best: "A group like ours could lie through its teeth and the candidate it helps stays clean." So even though some political professionals complain that independent groups tend to muddy the candidates' message, there is no denying such attack ads have served candidates well on occasion.

Not all negative advertising is based on lies, of course. The facts in the Willie Horton ad, for example, were beyond dispute. But Jackson, of FactCheck.org, said that negative ads are more likely to be untrue or, at the least, an exaggeration of the truth. That is because negative ads are based on factual claims while positive ads seldom contain any factual material.

Of MoveOn.org's consistently misleading negative ads in the 2004 election cycle, Jackson said, "I mean, frankly, it got a little embarrassing for us that we found ourselves criticizing MoveOn.org so regularly, just because their ads seemed to provide more material for us more often than other groups." Yet while MoveOn.org's scriptwriters shamelessly twisted the truth, they earned high marks for cleverness. One of MoveOn.org's most misleading ads, according to Jackson, was based on five statements, all of which, taken independently, were true. By combining these statements, however, MoveOn.org inaccurately suggested that George Bush was opposed to a ban on assault weapons. During the interview, Jackson played the ad, and offered his analysis. The ad opened with a picture of an automatic weapon.

The MoveOn.org announcer began, "This is assault weapon. It can fire up to 300 rounds per minute."

"True," said Jackson.

The announcer continued making statements, and Jackson punctuated each with an affirmation.

Second statement: "It's the weapon most feared by police. In the hands of a terrorist, it could kill hundreds." True. Third statement: "That's why they are illegal." True. Fourth statement: "John Kerry, a sportsman and hunter, would keep them illegal." True. Last statement: "On Sept. 13, George Bush will let the assault weapon ban expire." Also true.

Jackson continued, "But Bush actually supported a ban on automatic weapons like the one shown in the ad. Those weapons had been illegal for decades and they remain illegal today. The law that Bush allowed to expire was had nothing to do with these particular guns and was inaccurately named an assault weapons ban by its sponsors."

In the Swift Boat ads, Jackson said, the truth was impossible to discern. It was essentially a disagreement about something that happened many years ago under the stress of battle. "It's entirely plausible to me that everybody is telling the truth as they remember it," Jackson said.

Professional media advisers were critical of the quality of many of the ads created by independent groups, particularly those that "dumb things down." Media consultant Murphy said: "Bumper-sticker politics is what we got. And I blame the voters as much as anybody. If voters didn't vote for dumb campaigns, there wouldn't be any. … I just remember when I started, there were more rules. … But now it's like, 'Who has $3 million for a negative sledgehammer ad that's 51 percent true?'" Likewise, Tad Devine, a Democratic consultant who worked on the 2004 Kerry campaign, complains that voters do not distinguish between ads sponsored by the candidate and those produced independently. "What people saw from these independent groups was our campaign," he said, referring to the 2004 Kerry campaign. "They thought that was us talking even though it wasn't."

The First Amendment clearly protects independent groups that sponsor political advertising, no matter how inflammatory. Congress tried to limit independent advertising when it changed the law in 2002. Previously, groups were free to broadcast attack ads at any time during the election cycle as long as they did not use the terms "vote for," "support," "elect," or similarly explicit "magic words" in relation to a particular candidate. A most remarkable example was a television ad that was intended to scuttle the 1996 congressional candidacy of Democrat Bill Yellowtail in Montana. The ad said: "Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail's response? He only slapped her. But 'her nose was not broken.' He talks law and order … but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments - then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values." Years later, in upholding the 2002 campaign finance reforms against an initial challenge, the Supreme Court cited this ad as an example of the type of sham "issue ad" which Congress and the FEC could regulate as a campaign ad. That would seem to have ended the issue, however it is possible that an independent group can still literally accuse a candidate of beating his wife without risking a court censure.

Just as the 2008 campaign season was getting under way, the Supreme Court ruled in June 2007 that the restrictions the new law placed on independent ads immediately prior to an election were unconstitutional. The court specifically overturned a limitation on airing such ads within 30 days before the primary and 60 days prior to the general election. In an effort to interpret the Supreme Court ruling, the Federal Election Commission announced that ads attacking a policy position of a candidate could be broadcast in the days immediately prior to the elections, as long as they did not mention a political party, the upcoming election, or the candidate's opponent. Presumably that would exclude a Yellowtail-type attack. But the FEC left open the possibility that a Yellowtail-type ad could be aired if there could exist any reasonable interpretation of the ad as primarily intended to influence a policy issue. In fact, one prominent election law attorney reportedly suggested the Yellowtail ad would pass muster under the new rules if its closing appeal supported a policy issue more specific than simply "family values."

Independent advocacy groups had reason to be pleased with the FEC's interpretation of the Supreme Court decision. While the commission clarified that certain ads could not be challenged, it left a gray area that would require more adjudication. Thus, the independent groups appeared to be free to broadcast their attack ads with some confidence that there will be no legal consequences, at least until long after the election was over. This was essentially the same legal climate that prevailed in 2004. Paul S. Ryan, an attorney at the Campaign Legal Center, characterized the independent groups' attitude as follows: "We are going to take the risk that the FEC is not going to come after us. And we are going to hope that even if the FEC does come after us, this thing won't be resolved until a couple of years after the election and any fine that they impose on us is going to be miniscule in proportion to the amount of money we raise and spend."