Apr. 19, 2004
Political Advertising: The Rules
By J. Barlow Herget
RALEIGH - Wade Hargrove’s voice has that measured quality of a man who’s seen and heard it all. And he’s come pretty close … when it comes to political ads.
Hargrove is the lawyer for the state Association of Broadcasters, and when one of his members has a question about running a political advertisement, Hargrove hears about it.
Over the years, he and his firm have published a booklet for the broadcasters, entitled “Nuts ‘n Bolts.” He writes in the preface, “The handbook is a summary of the complex body of federal and state law governing the broadcast of political and issue-oriented advertising material.”
When he says “complex”, he’s not joking.
Hargrove recently discussed some of these laws and rules on my radio show, "State Government Radio Newsmakers," and what he said should be of interest to candidates and voters, too.
For example, broadcasters amazingly have little control over the content of a candidate’s advertisement. The courts have given candidates wide latitude to have their say when it comes to political speech.
If a broadcaster complains that a candidate has submitted a tasteless ad or one whose allegations appear false, Hargrove advises:
“Unless the material broadcast is legally ‘obscene’ or ‘indecent,’ a station may not censor the content…even if it is libelous, inflammatory or otherwise offensive to the community.”
Not so for other political groups.
This is noteworthy in this year’s elections. Many of the advertisements you’ll see and hear are not sponsored or financed by candidates. Increasingly, non-profit political organizations, nicknamed 527s after their IRS code number, are airing “issue advertising.” These, broadcasters can refuse.
The most celebrated rejection to date of such advertising was a 30-second spot produced by the anti-George Bush, internet group, MoveOn.org. It wanted to broadcast its ad during the Super Bowl. The ad, a somber, wry criticism of Bush’s deficit spending featuring little children, would have cost $1 million. CBS thought it inappropriate, refused MoveOn and gave us Janet Jackson’s breast instead.
The 2002 Bipartisan Campaign Reform Act (BCRA) prohibited large “soft money” contributions to the national political parties. Like water, that money has flowed elsewhere, with millions going to various 527s.
You already may have seen some of their ads on cable networks, mostly criticizing President Bush. The 527s will become more involved in North Carolina races as we get closer to the July 20 primary and the Nov. 2 general election. Democrats, for example, are talking now about the Republican Governors Association, a 527, spending $5 million against Democratic Gov. Mike Easley.
Candidates and 527 issue advertisers alike must identify their sponsorship of the advertisements.
A broadcast hairsplitter is the “equal time” or more accurately, “equal opportunities” provision. Again, this applies to candidates, not to the Rush Limbaugh’s of the airwaves or 527 advertisers.
Simply put, if a television station offers six minutes of airtime to Gov. Mike Easley to say why he’s running for re-election, the station must offer the same deal to his opponents.
This also applies to advertising, which sometimes causes the hair-splitting. Candidates must make their requests for equal airtime in a “timely” fashion. If Easley buys 30 minutes of primetime advertising, the station must offer the same opportunity to his opponents…but if they can’t pay, the station is not obligated to give them free time.
This may come as a shock to some candidates and voters, but broadcasters sometimes limit the amount of political airtime they will sell or don’t want to fool with political ads at all. They can do that as long as they are uniform in their actions. Hargrove writes:
“There is no specific requirement that stations either sell or give time to any political candidate.” But, he continues, “A station may not discriminate in any way in its dealings with candidates.”
Finally, there is the tangled “lowest unit charged” rule for political ads. Again, this applies only to candidates’ advertising. The idea behind the rule is simple: political candidates should be charged the lowest advertising rate for their ads.
That’s not exactly how it works in real life.
First, the rule is limited to the 45-day period before primary elections and the 60-day period preceding the general election.
TV and radio stations charge different rates for different times; “drive time” for commuters typically is the most expensive in radio, and primetime in the evening is the costliest for television. Thus, the “lowest unit charged” may vary, depending on time of day.
There also are differing rates for “fixed positions” in the broadcast day.
As noted, the idea is great, but the record of the last 10 years shows that candidates are spending more and more on broadcast advertising even with the “lowest unit charged” requirement.
Class is adjourned.
Barlow Herget is a former Raleigh city councilman and is host of "State Government Radio Newsmakers."
743 W. Johnson St.
Suite E
Raleigh, NC 27603
919.839.1200