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We Need a Truth-in-Advertising Commission — For Voters

False and misleading information threatens the integrity of our elections. We need to get serious about stopping it.

October 16, 2019
man reading cellphone

It was a pretty good troll. On Friday, Sen. Eliza­beth Warren’s pres­id­en­tial campaign ran an ad on Face­book saying that the social media giant had endorsed Pres­id­ent Trump.

It hasn’t, of course — as the ad acknow­ledged a few sentences later. The goal, which it achieved and then some, was to draw atten­tion to Face­book’s recent refusal to take down a Trump campaign ad that makes an object­ively false claim about former Vice Pres­id­ent Joe Biden and Ukraine, and the threat that stance poses to fair elec­tions. Let’s see how you like having lies told publicly about you, Warren was saying to Mark Zuck­er­berg and company.

Face­book’s decision on the Biden ad wasn’t a one-off. As Warren later noted on Twit­ter, Face­book recently tweaked its policies to make its stance on false polit­ical content even more hands-off than before. “It is not our role to inter­vene when politi­cians speak,” a company VP wrote in explain­ing the move.

Attacks that play fast and loose with the facts may seem like the kind of hard­ball polit­ics that has gone on forever. After all, in 1828, Andrew Jack­son’s campaign falsely accused Pres­id­ent John Quincy Adams of pimp­ing out an Amer­ican girl to the Russian czar earlier in his career. But when voters make decisions based on false inform­a­tion spread virally to millions, the damage to the integ­rity of our elec­tions is profound.

Think of it this way: We under­stand the harm done by voter suppres­sion schemes that tell people the wrong loca­tion for their polling place or that the elec­tion is Wednes­day not Tues­day. The Bren­nan Center has helped draft legis­la­tion to crack down on such schemes. There’s also the danger from “deep fakes” — manip­u­lated images, spread online, that aim to falsely discredit or embar­rass a candid­ate — a threat Cali­for­nia recently passed a law aimed at tack­ling. Why should false facts aimed at affect­ing voters’ decisions be treated differ­ently?

Or consider a differ­ent analogy: if advert­isers make false claims about their own products or their compet­it­ors’, they can be fined by the Federal Trade Commis­sion (FTC). That’s because we recog­nize that the free market can’t func­tion effect­ively if consumers don’t have accur­ate facts — just as voters need accur­ate facts for free elec­tions to work prop­erly.

This isn’t just about Face­book. It should­n’t be up to for-profit compan­ies alone to decide which campaign messages can respons­ibly be aired and which aim to mislead voters. Instead, that should be done by an entity whose only goal is to further the public interest.

That’s why we need a neut­ral govern­ment regu­lator tasked with ensur­ing that misin­form­a­tion does­n’t under­mine our elec­tions. In my perfect world, this body would be empowered to block or punish false or substan­tially mislead­ing campaign speech — whether in the form of campaign ads or comments by candid­ates and their back­ers. But the Supreme Court’s broad read­ing of the First Amend­ment makes that a nonstarter for the fore­see­able future. Indeed, as of 2014, 27 states have barred false polit­ical state­ments, but four of those laws have since been struck down. And state-level bans seem poorly suited to regu­late campaign speech that, espe­cially in a pres­id­en­tial race, is national in reach.

So for now, this body would func­tion simply as an author­it­at­ive fact-checker, stamp­ing “False” — or perhaps in some cases, a desig­na­tion like “Unproven” or “Dubi­ous” — on any polit­ical commu­nic­a­tion that merited it based on a care­ful, trans­par­ent invest­ig­a­tion, just as health author­it­ies stamp warn­ings on cigar­ettes.

That’s a role that appears to put it on much firmer consti­tu­tional ground than if it were author­ized to actu­ally block false speech. And it still falls well short of some meas­ures adop­ted by other advanced demo­cra­cies, includ­ing Canada, which crim­in­al­izes “know­ingly making or publish­ing a false state­ment of fact in rela­tion to the personal char­ac­ter or conduct of a candid­ate with the inten­tion of affect­ing the result of an elec­tion.”

Of course, voters are deceived not only by ads that make flatly false claims, but also by broader attacks or storylines that are based on a false or mislead­ing premise, even if no specific asser­tion is narrowly untrue. These kinds of made-up scan­dals can often be even more damaging than narrowly false state­ments, since the main­stream media has more trouble ignor­ing them. A prime example is the Biden-Ukraine story, in which Trump and his allies charge that Biden had Ukraine’s top prosec­utor fired in order to protect Biden’s son, even though the evid­ence shows Biden did no such thing — which despite being essen­tially false, may have done real damage to the former veep’s campaign.

That’s why a neut­ral govern­ment regu­lator might also be author­ized to declare such storylines broadly ille­git­im­ate. Yes, that would force the body to make more subject­ive judg­ments about which attacks are funda­ment­ally bogus and which are valid. But again, the FTC is author­ized to go beyond narrow true-or-false determ­in­a­tions when consid­er­ing whether an ad misleads consumers. Why should voters get less protec­tion?

Perhaps the most obvi­ous danger of a body like this is that it would be captured by one side. After all, giving Trump the power to upgrade his claims of “fake news” into offi­cial govern­ment rulings would be disastrous. So the issue of how its members would be chosen to ensure it stays unbiased would be crucial. But that concern should­n’t kill this conver­sa­tion in its cradle. Perhaps the answer is to split member­ship between the two parties, or maybe it’s to try to ensure that commis­sion­ers are genu­inely nonpar­tisan. But if states can create inde­pend­ent commis­sions to handle redis­trict­ing — an area that’s no less polit­ic­ally fraught — we should­n’t assume it’s impossible to do the same here.

Of course, in the current polit­ical climate, plenty of highly engaged partisan voters will auto­mat­ic­ally view the decisions of a govern­ment panel — however fairly its members are appoin­ted, and however trans­par­ent its decision-making — as ille­git­im­ate if the decision hurts that voter’s favored candid­ate. But having a claim offi­cially declared false might still make an impres­sion on some swing voters. More import­antly, it could lead news outlets and fair-minded opin­ion-shapers to avoid ampli­fy­ing the message, ulti­mately starving it of oxygen.

At the very least, it would estab­lish the prin­ciples that false polit­ical inform­a­tion comprom­ises fair elec­tions and hurts the public and that the govern­ment has as an interest in redu­cing its impact. Given the virtual Wild West envir­on­ment that prevails today, that alone would be a step forward.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.