Candidates facing blistering attacks from television and radio ads are fighting back by demanding that stations take down ads that contain false claims.
"Each year it gets to be a bigger and bigger problem, and that's just a function of ads are getting more and more aggressive, and more money is coming in from non-candidate groups," said David Oxenford, a Washington attorney who represents broadcasters and who is the editor of BroadcastLawBlog.com.
Although political ads are generally protected by the First Amendment, protests can succeed in blunting the attacks:
•The Republican candidate challenging Rep. Betsy Markey, D-Colo., revised his attack ad after her campaign complained. The original ad from Cory Gardner accused Markey of "voting for the most fiscally irresponsible budget in history." She voted against the 2010 budget twice, and complained to KDVR, the Fort Collins Coloradoan reported. Gardner's campaign had a new ad Wednesday saying she voted "to approve $1.2 trillion in new government spending."
•Three Cape Cod radio stations pulled an ad this week attacking Republican congressional candidate Jeffrey Perry, a former police supervisor. The ads recounted a 1991 incident in which an officer under Perry's command was convicted of assaulting a 14-year-old girl, the Cape Cod Times reported. The stations — all owned by Qantum Communications — pulled the ads after complaints from listeners and Perry.
•Last week, a television station in Portland, Maine, pulled a Maine Republican Party ad attacking Democratic Rep. Chellie Pingree and her fiancé, hedge fund manager S. Donald Sussman. "Pingree's boyfriend got $200 million from the Wall Street bailout. Now she flies on her own private jet," the ad said. Lawyers for Pingree complained and WCSH pulled the ad, saying it was false because Sussman, not Pingree, owned the jet.
•In July, two Pennsylvania stations stopped airing a U.S. Chamber of Commerce ad that attacked Rep. Joe Sestak, the Democratic Senate candidate. The ads said he "voted with Nancy Pelosi 100% of the time." That may have been true when the chamber produced the ad. But before it aired, Sestak voted against the House speaker's position on the DISCLOSE act, which would have required the chamber and other groups to report on who's contributing to the ads.
The Pittsburgh stations, WPGH and WPMY, are owned by Sinclair Broadcast Group. Barry Faber, Sinclair's executive vice president, said the complaints put stations in the position of injecting themselves into campaigns. "The first thing that happens is the party that complained about the ad puts out a press release, saying we judged the ad to be false," he said. "The next thing that happens ... is we're contacted by the ad agency that placed it, threatening never to place another ad on one of our stations again. That's a terrible position to put us in."
Sinclair has the largest footprint in the 16 states with the most competitive elections, according to SNL Kagan. The media analysis firm expects television political revenues nationally to increase 25% compared with the 2006 election, to $2.5 billion.
The Federal Communications Commission doesn't keep statistics but "is not seeing an increase in political advertising complaints," said Janice Wise, an FCC spokeswoman. She said the FCC has never taken action against a license for the content of ads.
But Oxenford said threats of action — lawsuits or FCC complaints — have risen steadily.
One reason, he said, is the influx of money from corporations and unions this year after the U.S. Supreme Court struck down limits on spending. Under federal law, television stations are required to run political ads, at their lowest rates, from candidates. So courts have held that the stations can't be held responsible for what those ads say.
Independent ads, though, are held to a different standard, and stations could be sued for defamation for airing a false attack.
Sinclair's Faber said it may also be that the threats are "a method people are coming up with to try to combat negative ads."
The complaints aren't always threatening. Last month, Health Care for America Now asked 83 stations to remove ads by 60 Plus Association, attacking Democrats on their health care votes.
"It is within the right of these organizations to run ads, but it is also within the rights of these television stations to at least insist as a matter of accountability that these ads are true," said HCAN's Ethan Rome. No station pulled the ads.
Television ads aren't the only targets. The anti-abortion Susan B. Anthony List planned to erect billboards in three congressional districts held by anti-abortion Democrats, saying their votes for health care law would allow taxpayer-funded abortions.
U.S. Rep. Steve Driehaus, D-Ohio, caught wind of the campaign and complained to the Ohio Elections Commission, which ruled there was probable cause that the billboard constituted a "false claim" under the state's election laws. The billboard company then declined to erect the billboards. The Susan B. Anthony List sued this week in federal court, arguing that the Ohio law is unconstitutional.