Peter H. Schuck, an emeritus professor at Yale Law School, is the author of “Why Government Fails So Often, and How It Can Do Better.”
Negative campaign ads appear to be on the rise with the approach of this fall’s congressional elections and the 2016 presidential campaign. Hardly anyone has a good word to say about them. The standard critique — that they demean our democracy, deceive voters and cause disgusted voters to stay home on Election Day — has the ring of truth. But this exaggerates the negative about negative ads while obscuring their benefits.
Listening to the critics, one would assume that almost every political ad is an attack ad. In fact, a 2007 synthesis of studies published in the Journal of Politics found that fewer than 40 percent of all campaign messages targeted an opponent, and more recent studies found that most negative messages come from interest groups, not the candidates and parties.
While we might not like the tone of negative ads, and some are misleading (as are some positive ads), they do tend to highlight candidates’ inconsistencies, character flaws and past positions on salient issues, providing useful information to the undecided voters who determine the outcome of many elections. They also convey relevant information about candidates who sponsor the attacks. Hillary Clinton’s famous “3 a.m.” ad from the 2008 Democratic presidential primary, for instance, criticized Barack Obama’s relative inexperience while reminding voters of Clinton’s longer record.
The line between negative and positive ads also is blurry. Even an ostensibly positive ad emphasizing a candidate’s views or attributes strongly implies that the opponent lacks them. If, instead, the ad made explicit comparisons and emphasized the opponent’s negatives, voters might come away better-informed and able to decide among candidates.
In fact, the only ads that should concern us are those that contain lies that voters cannot detect — whether positive or negative. The law itself can’t provide an effective remedy for such lies; in June, a unanimous Supreme Court questioned whether states can prohibit false statements about candidates, and politicians can very seldom sue for defamation. Still, attacked candidates have powerful incentives to call out falsehoods swiftly and to assail the character and trustworthiness of those who propagate them. Fears that lies in ads will backfire and repel voters, which many do, surely limit the number of arrant falsehoods.
Half-truths and false innuendo — insinuation rather than outright lies — are more difficult to counter. But again, opponents are vigilant and can respond quickly. Campaigns probably use them more because they fear unilateral disarmament than because they are effective. Everyone knows about George H.W. Bush’s use of Willie Horton’s story to attack Michael Dukakis and Lyndon Johnson’s nuclear-cloud ad against Barry Goldwater. But neither ad explains the outcome of those elections. Indeed, the 2007 study on negative campaigning found that, although negative ads are more memorable, they do not shift votes to the attacker or reduce turnout.
Moreover, outrageous attack ads are harder to pull off today than in the days when John Adams’s supporters are said to have called Thomas Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” The saying that “a lie can travel halfway around the world while the truth is still putting on its shoes” is less true now because of the immediate responses and public rebukes enabled by the Internet, vigilant bloggers, quick-response teams employed by wary candidates and combative news organizations.
We should focus our concern about attack ads not on their unseemly, aggressive and intrusive aspects, unpleasant as those may be, but rather on the ones containing falsehoods that opponents can’t correct in time for voters to assess them, learn who is responsible for them and factor this information into their decisions. Three remedies might improve the situation.
First, local media should do what some national media do: Objectively assess competing claims for accuracy and publish those assessments prominently. Second, foundations — and perhaps even the political parties themselves — should fund private, nonpartisan organizations with reputations for objectivity to do the same. These “truth squad” efforts should accelerate as Election Day approaches and the window for correcting false attacks begins to close. Third, Congress should require, subject to the constraints of the First Amendment’s protections of individual and organizational privacy, non-candidate producers of all election ads, negative or positive, to identify themselves and their largest donors.
Attack ads are not pretty, but neither is our robust, competitive democracy. Most important, attack ads don’t threaten that democracy. They may even improve it.