In Alaska earlier this month, radio ads hit the airwaves trumpeting the allegation that Sen. Ted Stevens received a sweetheart trade-in deal on a new Land Rover. An Alaska law firm representing the Republican senator quickly fired off letters to stations around the state demanding they stop running an ad it said was "factually incorrect and a gross distortion of the real facts."Had the ad been paid for by Anchorage Mayor Mark Begich, Mr. Stevens's Democratic opponent in the race, lawyers almost certainly wouldn't have bothered trying to pull the ad, since stations must accept advertising from political candidates. But the ad in question was bought by the Democratic Senatorial Campaign Committee, a third-party group. Since stations aren't obligated to run third-party ads, those spots are more vulnerable to efforts to get them kicked off airwaves.
Candidates are taking action to stop provocative ads by third-party groups known as 527 political organizations.
While no one tracks the number of legal notices broadcasters receive on political ads, station managers and lawyers say attempts to block ads are growing both in number and intensity, particularly in states with closely contested elections. "If you're these affiliates, you're under siege," says Michael Toner, former chairman of the Federal Election Commission and now an attorney at Bryan Cave LLC in Washington.
While some stations buckle under the pressure and drop the ads, most refuse. "I think candidates want us to become the censors," says Mike Burgess, general manager of KOB, the NBC affiliate in Albuquerque. "I don't think that's our job." The station has already received a handful of letters requesting ad takedowns this political season.
Spending on political advertising -- which includes candidates' as well as third-party ads -- is expected to reach about $3 billion this year, compared with $1 billion in 2000, estimates Evan Tracey at TNS Media Intelligence/CMAG, a tracking firm. Attempts to push some ads off the air have "become more of a standard move for campaigns," says Ezra Reese, an attorney at Perkins Coie in Washington, who has both sent letters on behalf of candidates and defended groups that place the ads.
Not everyone agrees legal agitating is on the upswing. Mark Prak, a Raleigh, N.C., lawyer at Brooks, Pierce, McLendon, Humphrey & Leonard who represents 200 television stations around the country, including Hearst-Argyle Television Inc. stations, says candidates have always been quick to enlist lawyers to fight ads they don't like.
Third-party groups known as 527 political organizations -- named after the section of tax law that governs them -- are often seen as purveyors of more-provocative ads. Compared with individual campaigns, the 527s have looser rules on financing and can take unlimited donations from individuals, with many substantial donors not known until well after the election has passed. Thus, they essentially "are not accountable to voters for what they say," says John Zakhem, a Republican election lawyer in Denver who has been involved in several cease-and-desist actions against broadcasters. Moreover, he argues, the groups have been emboldened by seeing how effective other 527 groups' ads have been, such as the messages from the Swift Boat Veterans for Truth, which many observers say hurt John Kerry's 2004 presidential campaign.
Station managers acknowledge there is a fine line between what is misleading and what is incorrect. For example, a late-summer ad paid for by the U.S. Chamber of Commerce attacked New Hampshire former governor and senatorial candidate Jeanne Shaheen for being a "taxing machine." The ad cited some taxes that rose under Ms. Shaheen's tenure as governor, but her campaign says that during those years she fought hard against a statewide income tax.
Campaign lawyers asked stations to stop running it; the move got the ad off at least one station temporarily while the station scrutinized the ad's veracity, but it soon popped back onto that station's airwaves, says campaign spokeswoman Kate Bedingfield.
Lawyers rarely succeed in yanking an ad for more than a few hours or days, but even that can pay off, especially as the election draws closer. "If you can get the ad pulled for a couple of days with 40 days to go, it's worth it," says Mr. Tracey of TNS.
When MCC Radio LLC's Dennis Bookey received a letter earlier this month from Sen. Stevens's lawyers about the ad airing on the Alaska radio stations he manages, he says he made a decision without getting his own lawyers involved. "Common sense would prevail about whether you have a blatant mistruth or something that is more common in advertising -- something that pushes the envelope," he says. The ads stayed on Mr. Bookey's air waves.
By: Sarah McBride
Wall Street Journal; September 26, 2008
