Russell L. Weaver: "Attack Ads Pose Perils". I AGREE.

Attack ads pose perils
By Russell L. Weaver

In medieval times, English officials could punish those who had the temerity to criticize governmental officials or governmental actions. Moreover, a citizen could not defend against the charges by proving that the criticism was “true” or “valid.” Indeed, truthful criticism was punished more severely on the theory that truthful criticism had greater capacity to harm the government.

The First Amendment to the United States Constitution repudiates the idea that individuals can be prosecuted simply for criticizing government. Free speech is an indispensable component of our democratic system, and criticism (and critique) of governmental policies is an essential part of that system. Every two years, we tangle about whether government is heading in the right direction.

At the moment, those issues seem as pressing as ever. We face great obstacles, including not only major economic issues, but also challenges to our competitiveness and our environment.

Even though speech is essential to the political process, political advertising can sometimes be base, and this election cycle political season has involved an extraordinary number of attacks ads. Record amounts have been spent on campaigning and political advertising, and a disproportionate amount of that money has been spent on negative advertising. Interestingly, although the conventional wisdom suggests that attack ads work, and help propel candidates into office, some studies suggest that attack ads affect only really close elections. In other words, attack ads have only minimal impact.

My hope, and my sense, is that the electorate is too smart to be taken in by attack ads, and I find solace in the recent senatorial election involving Senator-elect Rand Paul and Attorney General Jack Conway. Even before Conway ran his Aqua Buddha and Stomping on Kentucky ads, which had to be the low points of his campaign, one of Conway's ads had been rated “false” by PolitiFact (the independent fact checking group).

Nevertheless, I wondered how the electorate would react as Conway's attack ads became sharper and veered directly into the gutter. The answer to that question came in Tuesday's election, when Conway lost, but the evidence started coming in as soon as Conway's more sensational ads began running.

According to Real Clear Politics, a nonpartisan group that lists election polls, the electorate started moving decisively away from Conway shortly after he began his most outrageous attack ads. What had been a close race (a 4 percent differential in favor of Paul, but one that was within the margin of error) quickly expanded to eight points, then to twelve points, and then 15 points. Ultimately, Paul won by 12 points.

Interestingly, during this period, overall support for Conway dropped, and the percentage of people who viewed him negatively rose significantly. While it is possible that future candidates will interpret this election as simply a wave election, and conclude that Conway had no chance with or without the attack ads, I'm hoping that they will see the election as illustrating the potential perils of negative advertising. One wonders what would have happened in this race had Conway taken the high road and run positive advertising that emphasized his record.

Russell L. Weaver is professor of law and Distinguished University Scholar at the University of Louisville Brandeis School of Law.