“He just believes what people tell him”

David Grant speaking of his father Woody

“Nebraska” (2013)

Paul Ryan contends that a posting here misrepresented the Campaign Legal Center’s views on the proposed IRS tax-exempt political activity rules.  He denies that, in pressing for fully disclosed 501(c)(4) ad funding, the Center is hoping to diminish the volume of “attack ads.”  His organization’s “whole” and only point, Ryan insists, is information to the voters about who is paying for the ads.  Quelling negative campaign speech is not their concern, only “promotion of transparency.” An able and energetic proponent of reform, Ryan deserves a further explanation of why someone might reach a different conclusion about the various concerns moving the Center on disclosure issues.

Paul is unquestionably right to say that the Center’s position on the IRS rules is not solely a function of its distaste for negative advertising.  The posting is careful to suggest that the goal of “cleansing political speech” is “among [the Center and other reform supporters’] objectives,” not their only one. (emphasis added). The Center is certainly also motivated by a wish to have disclosed to the public all sorts of advertising that it deems campaign- related.  Without a doubt, the disclosure Paul and his colleagues are seeking would extend to both positive and negative advertising; there is no question about their commitment to full transparency. There is no suggestion to the contrary in the posting.

But it is also undeniably true that the Center, like others sharing the McCain-Feingold vision of reform, embraces the view that negative advertising is odious in significant part because it fosters a certain type of political commentary or debate—the “negative” kind, accomplished through attack ads—and that disclosure can help cut down the amount of it.  For example, the Center has carried on its website an address delivered to the American Law Institute by its President, Trevor Potter, who elaborated on the dangers of heavy negative advertising and the role of disclosure in discouraging it to at least some degree. This is the pertinent part of the presentation:

Those [Super PAC and 501(c)] groups will raise and spend hundreds of millions of dollars, not just in the presidential race but in House and Senate races which present “opportunities” for the interests funding them … opportunities to change control of Congress by knocking off unsuspecting incumbents with last minute expenditures of large sums of money, often paid for by undisclosed sources. And all of this will be done with unremittingly negative ads created by unaccountable media advisers for unaccountable “independent” “outside” groups.  Because if the candidates do not have to stand behind their advertising, and answer to the public for it, there is nothing to prevent every minute of every campaign ad being negative, because those ads are more effective—they do a better job of depressing the opponent’s vote.  The dirty secret is that voters may not like your candidate any better, but they grow disheartened about theirs, and stay home. (emphasis added)

This is the key argument: without disclosure, “nothing will prevent” a full schedule of negative advertising.  But with disclosure, there is some chance to keeping these ads from taking up “every minute” of air time.  And here Potter only touches on one further aspect of the argument for flushing out the sources of negative advertising and causing the advertisers to think twice about employing it “every minute”—that negative ads have the purpose of depressing the vote and should be resisted for that reason. He has argued on other occasions that negative advertising promotes voter apathy .

The position Trevor takes up here  is fully consistent with the course over many years of the reform argument about negative advertising. Whether the solution proposed was the 30 and 60-day election advertising plan, or the “stand by your ad” requirement, the expectation(or hope) was that with appropriate regulation, the amount of negative advertising could be reduced.  This was certainly the intent behind the “stand by your ad” requirement, as recognized by critics and supporters alike.  But it was also the reform community objective to attack the problem by more sweeping disclosure requirements. None other than John McCain has said: “if you demand full disclosure for those that pay for those ads [attack ads], you’re going to see a lot less of that.”  John Samples, The Fallacy of Campaign Finance Reform 4 (2006) (citing 107 Cong. Rec. S3,116 (2001) (statement of Sen. John McCain)).

This is why the posting to which Paul objected referred to the aim of limiting negative advertising as one “among” other objectives served by a rule like the one proposed by the IRS. This suggestion was not invented: it just took seriously what people have told us.