Political Advertising Regulation: An Unconstitutional Menace?

September 22, 1988 • Policy Analysis No. 112
By Stephen Bates

Last spring, you could have confidently made four prediction’s about the fall campaigns:

First, many candidates will rely heavily on negative television commercials. For guidance here, forget professional codes of ethics, party leaders’ admonitions, and candidates’ precampaign promises; look instead at recent history. In 1986, attack ads became so prevalent that the Washington Post labeled it the “Year of the Negative.”[1] In early 1988 several presidential candidates aired attack ads, and some hit home. In fact the demise of one candidate, Paul Simon, was widely attributed to his refusal (until it was too late) to air negative ads. In the fall, televised rhetoric in the presidential election is likely to be at least as harsh, and many races for lower offices will be much rougher. Inevitably a few campaigns (probably no presidential ones) will air undeniably cheap shots.

Second, more than one political columnist will point to those cheap shots and shake his head over the republic’s future. Recall 1982, when David Broder fretted that negative campaigning could “cripple a healthy democracy.” Recall 1984, when Jack Germond and Jules Witcover wrote that “voters are brainwashed, misled and deceived.” And recall 1986, when Tom Wicker complained that “hit‐​and‐​run television spots” provided “no more useful or reliable information than, say, one of those commercials in which male‐​bonded yuppies or superannuated jocks extol the virtues of beer guzzling.”[2]

Third, opinion surveys will show that the vast majority of voters side with the columnists. In a 1983 Harris poll, 82 percent of the people polled said political ads are too negative.[3] In an election year that percentage is likely to go even higher.

The fourth prediction follows from the first three: voters and policymakers will talk about regulating or banning political ads, especially negative ones. They will say that such ads divert money from people‐​oriented political activities, weaken the political parties, give unchecked power to sleazy political consultants, mislead and alienate viewers, reduce voter turnout, and debase political rhetoric.

Such criticisms are off‐​base. In a modern political campaign, commercials constitute a candidate’s “best opportunity,” as Mark Shields has written, “to explain why the race is being made, how he differs from his opponent and what he wants to do in office.”[4] Proposals to clean up commercials would undercut that opportunity, perhaps eliminate it entirely. Voters would end up knowing less about candidates.

But even if such commercial spots did harm the political system in clear‐​cut, demonstrable ways, the proposed regula‐ tions would almost certainly be ruled unconstitutional. Campaign speech, including political ads, enjoys maximal First Amendment protection. In short, practical considerations and the Constitution both argue against regulating political commercials.

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About the Author
Stephen Bates is a visiting scholar at Harvard Law School and a project director for the Twentieth Century Fund. He is coauthor with Edwin Diamond of The Spot: The Rise of Political Advertising on Television, rev. ed. (Cambridge, Mass.: MIT Press, 1988).