Even voters only marginally engaged in the political process dread the approach to the presidential elections this November, knowing that their mailbox, television, and favorite internet hangouts will soon be pervaded with in-your-face campaign advertising. Given the ugly rhetoric that pervaded the Republican primary, that concern is valid.

American elections, and indeed, elections around the world, have always been messy affairs that blur the difference between hyperbole and untruth. “I believe that there were demagogues as far back as when the Athenians invented the democratic system,” says Brooks Jackson, Founder and Director of Factcheck.org, a nonpartisan nonprofit that aims to reduce the level of deception and confusion in U.S. politics. He adds, “Politics is about power, and people in power have great incentives to persuade people with whatever means at their disposal. It is made worse in modern times because the dominant form of political ads in the United States is the 30-second TV spot. And there is no room to make a nuanced presentation of facts and issues in that time. We have a system that is skewed in the direction of exaggeration and hyperbole and sometimes outright distortion,” elaborates Jackson. Ever since television and radio have allowed access to voters without the worry of instant pushback, candidates and political spokespersons have boldly made and endorsed messages that creatively stray from factual realities and are programmed to inflame.

One egregious example from recent years is Sarah Palin’s assertion that the Patient Protection and Affordable Care Act of 2009 would lead to government “death panels” that will dictate which types of patients would receive treatment. The meme caught fire during a national debate on the merits of the Act, and ended up almost derailing its passage. Despite its dubious distinction of being crowned “Lie of the Year” by Politifact, the belief in its veracity still persists among a large segment of the population.

Truthiness and Dare

Amazingly enough, no law exists that prohibits the creative distortion of facts for the purposes of campaigning. In an article titled “There ought to be a law” in 2007, Jackson wrote: “Laws protecting consumers from false advertising of products are enforced pretty vigorously. For example, the Federal Trade Commission took action in 2002 to protect the public from the self-proclaimed psychic “Miss Cleo,” who the FTC said promised free readings over the phone and then socked her gullible clients with enormous telephone charges… But there’s no such truth-in-advertising law governing federal candidates. They can legally lie about almost anything they want. In fact, the Federal Communications Act even requires broadcasters who run candidate ads to show them uncensored, even if the broadcasters believe their content to be offensive or false.”

I spoke with a member of the Federal Communications Commission (FCC) who agreed to share his opinions on condition of anonymity. “The FCC only regulates equal time and sponsorship identification.” FCC rules state that no candidate can be refused air time. Of course, he or she still has to find a way to pay for it. And the recent creation of super PACS (more on that later) have even taken away the burden of being identified as the purveyor of a false message. Also, it turns out that the First Amendment of the U.S. Constitution has quite a few protections for untrue statements made by and against public officials.

In Rickert v Washington, a 2007 decision of the Washington Supreme Court, the court considered whether a political candidate could be punished for telling deliberate lies about her opponent in a political campaign. Voting 5 to 4, the court held that Marilou Rickert, a Green Party candidate for the State Senate, could not be fined for falsely claiming in a campaign brochure that one of her opponents “voted to close a facility for the developmentally challenged.” The Court’s majority said the state law “naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.” (Source: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/lying.html). In United States v. Alvarez, where a political candidate falsely claimed to be a war veteran, the court opined that “to permit punishment for lying is to give the government power to make criminals of us all.” Says Jackson, “The Supreme Court’s decisions protecting the First Amendment rights of citizens unfortunately allows people to make false statements without penalty.” He echoes the judge in Alvarez, “Think about it, would you like the government to have that kind of power? It is the voters who are best equipped to decide the truth.”

Citizens United

In a landmark decision in 2010, the U.S. Supreme Court decided that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. Shortly after this decision, the United States Supreme Court of Appeals ruled in SpeechNow.org v. Federal Election Commission that PACs that did not make contributions to candidates, parties, or other PACs, could accept unlimited contributions from individuals, unions, and corporations (both for profit and not-for-profit) for the purpose of making independent expenditures. According to Wikipedia, “The result of the Citizens United and SpeechNow.org decisions was the rise in 2010 of a new type of political action committee, popularly dubbed the ‘super PAC.’ Officially known as ‘independent-expenditure only committees,’ super PACs may not make contributions to candidate campaigns or parties, but may engage in unlimited political spending independently of the campaigns. Also unlike traditional PACs, they can raise funds from corporations, unions and other groups, and from individuals, without legal limits.”

The Role of the Media

The creation of super PACS and the broad application of First Amendment protections have left voters confronting a deluge of false advertising this campaign season. The emergence of Twitter as a campaign media tool means that campaign messages need to be limited to 140-character sound bites with no other restrictions. The Internet is no help at all, either—the partisan voter can find ample support for his or her views. That leaves the job of fact-checking to traditional media. Despite regular accusations thrown by liberal and conservative activists about the partisan leanings of media institutions, Jackson is surprisingly positive about the state of modern media. “I think the media today is doing a better job than it used to, though it is still probably not good enough,” he says. Jackson pioneered the “adwatch” and “factcheck” form of stories debunking false and misleading political statements, starting with the presidential election of 1992. “It was in reaction to the 1988 presidential elections where I believed that George H.W. Bush had presented a number of misleading statements against his opponent Michael Dukakis.” After a brief flare-up of interest in the 1992 elections, the institution of fact-checking appeared to be on life support for a few years, but Jackson contends that the situation is much improved today. Factcheck.org was launched in 2003 with the support of the Annenburg Policy Center.

Politifact.org, which won the Pulitzer Prize for National Reporting in 2009, was launched in 2004 by the Tampa Bay Times to “fact-check statements by members of Congress, the White House, lobbyists and interest groups.” Most publications and television stations have a fact checking department though Jackson wishes that at least 2% of the amount the stations receive from campaign ads be spent on fact checking the same ads.

Organizations like the Sunlight Foundation are creating websites where citizens can put up information about the sponsorship of campaign ads. “Sunlight Campaign Ad Monitor is a great tool for anyone who wants to participate in keeping tabs on who’s paying for political ads across the country. With hundreds of millions of dollars already spent on political advertising and even more expected to be spent in the final weeks leading up to Election Day, voters have the right to know what private interests are behind these ads,” says Ellen Miller, executive director and co-founder of the Sunlight Foundation. “And we’re giving citizens the tools to help create a database that all of us can use.”

Ultimately the onus of discernment rests on the voter. Says Jackson, “A reasonable and open-minded voter has to realize that there is no government protection against false and misleading statements. In the United States, at least, politicians have a legal right to lie as much as they can get away with. And both sides do it.” His site points out errors in both President Obama’s new campaign ad “The Life of Julia” and his opponent Mitt Romney’s “gross” exaggerations on Obamacare. “Never take any political ad at face value. Listen to what the other side has to say,” adds Jackson. “Look for independent views of the facts from people you trust and never base your decision on a single source of information.”

The question is, will the busy voter really take the time to research?

Vidya Pradhan is a freelance writer who hosts the weekly radio show Parent Talk on KZDG 1550 AM. She also runs the community blog Water, No Ice and was the editor of India Currents from June 2009 to February 2012.

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