Austin Amestoy: Welcome to The Big Why, a series from Montana Public Radio where we find out what we can discover together. I'm your host, Austin Amestoy. This is a show about listener-powered reporting. We'll answer questions, big or small, about anything under the Big Sky. By Montanans, for Montana, this is The Big Why.
This episode we welcome back reporter John Hooks.
John Hooks: Hello!
Austin: So I hear you’re back with a new election-related question John, what topic are we tackling?
John: We are looking at the most annoying aspect of any election year: political ads.
Ad 1: Jon Tester: too liberal for Montana
Ad 2: [Jon Tester] I may not look like the other senators, but that’s not stopping me from making Washington understand what makes Montana so special.
Austin: They’re inescapable! Whether I’m watching tv or just on the internet, they’re absolutely everywhere
John: You’re not alone, Austin. Mary Behrendt, a retired teacher up in Whitefish and Big Why listener, is going through the same thing
Mary Behrendt: Oh my gosh, they just go on and on.
Ad 3: Another out-of-state tech millionaire comes to Montana, playing cowboy ...
Ad 4: Tim Sheehy: Navy SEAL, job creator, patriot.
Behrendt: We see a little bit and it's like, okay, go from this ad to the opposite to the opposite, to the opposite, and all in a matter of one commercial break.
John: Mary told me she sees a lot of exaggerated claims and attacks in these ads that have her wondering if there is any amount of fact-checking required in political advertising.
Behrendt: I have always been very skeptical of political commercials. And they always make these claims. And so it made me wonder if there was anybody checking before they're even aired.
Austin: I’ve wondered this myself. There’s a lot of mud-slinging in these ads. What were you able to dig up on this?
John: Well, the answer to this is as unsatisfactory as it is unsurprising. There is no fact checking requirement, or in fact any real regulations on content in political advertising at all.
Austin: Well you're right, that is both unsatisfying and not at all surprising. Can you tell us anything about why that’s the case?
John: Yes so to get some clarity on this I spoke to Chris Gallus, who is Montana’s Commissioner of Political Practice.
Austin: I’ve heard of this position before but I’ve never been totally clear on what its responsibilities are.
John: Totally fair. So his office monitors and enforces regulations on campaign finance, ethics violations and lobbying in state politics. He told me they regularly get complaints sent in from folks upset about misrepresentations and hyperbole in political ads
Chris Gallus: Our typical reply, our standard reply, is that … we're precluded from any regulation in regard to the matter.
Austin: It sounds like Gallus is saying his office couldn’t do anything about ad content even if they wanted to. Why is that?
John: So, two reasons. Reason number one is that the vast majority of ads we see are for federal races – the House, and especially the Senate race between Jon Tester and Tim Sheehy. Those are regulated by federal authorities. But whether they are federal, state, or local elections, regulations around political advertising comes down to how we balance a bedrock American idea: the free speech protections in the First Amendment..
Here’s Chris Gallus again to explain why.
Gallus: I'm sympathetic to the notion that these advertisements should be truthful. But frankly, you know, threading that needle in a society that's got the First Amendment and free speech is exceedingly, difficult, if not, perhaps, impossible if the cases tell us anything.
Austin: Gallus mentioned some case law there– are there specific examples that could help us understand this?
John: We actually have a relatively recent example from right here in Montana. Walking us through this is Mike Dennison, who’s covered politics in the state for decades. These days he’s a political analyst for the nonstop local TV stations in Montana.
Mike Dennison: There were some attempts, I'd say probably in the last 15 to 20 years by the Legislature, saying that if you quoted someone's record that you had to be able to show that that was accurate.
John: In 2012, two Montana laws that essentially created a kind of fact checking requirement were challenged in federal court.
Austin: How did they thread that First Amendment needle Commissioner Gallus mentioned earlier?
John: Not very well.
Dennison: I think all of them were struck down in some form or another, because they were either deemed too vague or that they were somehow trampling on free speech. They were struck down by federal courts.
John: Courts are extra-skeptical of regulations on political speech, and the judge in this case ruled Montana’s fact-checking requirements were too broad and too subjective to be enforced without trampling on the right to free speech.
Austin: So if a fact-checking law is too broad, I’m wondering if there is any kind of content regulation that would be narrow enough to stand.
John: Well, we do sort of have some backstops here. In theory at least, you can't knowingly, straight-up lie in an attempt to ruin somebody’s reputation, for example. But libel and defamation are difficult to prove when it comes to public figures like politicians.
So, as far as ad content, there’s really only one regulation that has endured. We’re all familiar with it, whether we know it or not, it’s the Stand By Your Ad provision.
Sheehy and Tester Ads overlapping: I’m Tim Sheehy, and I’m Jon Tester (in unison) and I approve this message.
Austin: So that’s why they do that.
John: Yep, federal and state election law requires you to disclose who you are in your advertisements – that includes a verbal endorsement of the content if you’re a candidate. If you are a political action committee or other outside group you just have to identify what the group is.
Austin: So as long as you tell people who paid for it, anything else is totally left to the candidate or committee?
John: Exactly. And I think it’s worth zooming out here and talking about money. Since the 2010 Citizens United Supreme Court decision – basically anyone can spend any amount of money they want on political ads. And since then we’ve seen a dramatic increase in spending. As an example, those kinds of groups have spent nearly $30 million on ads related to the Montana Senate race already this election.
Ad 5: Jon Tester worked with Republicans, fighting to shut down the border.
Ad 6: Stop Tim Sheehy.
Austin: I feel like I’ve also been seeing them in more and more places – television, internet, anyone watching the Olympics knows they are all over streaming services at this point.
Ad 7: Sheehy finished first in fencing. Fencing off huge swaths of prime Montana pasture from the rest of us.
John: Absolutely, this is something else that’s relatively new. The amount of targeting advertisers are able to do on steaming and social media is crazy. So you can hyperfocus things, even have an ad that just plays to women ages 18-34 who like the outdoors, for example.
Austin: How did our listener, Mary Behrendt react when you told her?
John: I don’t think she was all that surprised.
Behrendt: Oh, interesting. Okay. So they can just put up whatever they want and see what happens.
Austin: That was pretty much my reaction too. Thanks for the explainer, John!
John: You’re welcome, Austin, and I’d just like to say: as journalists a lot of our job is fact checking, and that’s especially important in an election year. Here at MTPR we have a very handy election guide with race profiles and candidate questionnaires for statewide races, and there’s tons of other great reporting from our colleagues in print and TV.
Austin Amestoy: Now we want to know what makes you curious about Montana — especially when it comes to this year’s election. Submit your questions below. Let's see what we can discover together!
Find us wherever you listen to podcasts and help others find the show by sharing it and leaving a review.
