Negative ads may grow as law vanishes

Dan Kulin

Monday, Aug. 9, 2004 | 11:09 a.m.

A federal appeals court ruling that allows anonymous political campaign material opens the door to a flood of negative campaigning, which one political consultant says will probably scare some away from running for public office.

Some experts and politicians, though, said the situation is better than living with the limits on free speech that came with the state law the 9th U.S. Circuit Court of Appeals struck down Friday. That law required political and campaign publications to contain the names of those who paid for them.

"We'll see more anonymous attacks, but no more negative campaigns than there are already," said state Assemblyman Bob Beers, R-Las Vegas, who is running for the state Senate against fellow Republican Ray Rawson.

Beers said he thinks the court's decision was right, and he's confident the voters will be able to treat anonymous campaign material with the appropriate suspicion.

"The people have been able to deal with this for 230 years," Beers said.

But Steve Wark, a Republican campaign consultant who is handling several campaigns this election season, said the court's decision will have a "chilling effect" on potential candidates, because now they can be the target of lies from groups or people hidden by anonymity.

"The only guard against someone lying about you in a political race was that they had to put their name behind it," Wark said.

Wark said he wouldn't use an anonymous mailer, but he expects some campaigns and groups will take advantage of the ruling to attack their political enemies.

"I believe if you're going to say something, you should put your name behind it," he said. "The vast majority in this profession tell the truth and put their name behind it. But the minority that don't want to tell the truth, they benefit."

Representatives from the American Civil Liberties Union of Nevada, which sued to get the law overturned, said there isn't a good reason to limit speech in this arena.

"As Harry Truman said, 'if you can't stand the heat get out of the kitchen,' "ACLU attorney Allen Lichtenstein said about those who might not run for public office because they would open themselves up to anonymous attacks.

ACLU of Nevada Executive Director Gary Peck said: "The desire to protect politicians from even unfair criticism is not a good excuse for shredding the First Amendment."

The ACLU claimed the state law violated the First Amendment.

Lichtenstein said the law did not limit itself to a campaign season and covered all speech, including criticism of incumbent politicians. He said it is important for people to be able to criticize their government and public officials without fear of retribution, which sometimes can only be done anonymously.

For example, the Federalist Papers were published anonymously, he said.

The appeals court, in its decision, overturned the earlier ruling of U.S. District Judge David Hagen of Reno, who upheld the law, and decided against sending the case to the Nevada Supreme Court.

Peck said that while the ACLU doesn't endorse negative campaigning, the First Amendment does protect the "rough and tumble" politicking often seen in American campaigns.

Others also said the ruling will probably lead to more negative attacks in coming campaigns.

Campaign consultant and lobbyist Mike Sullivan, president of Knight Consulting and formerly with Paladin Advertising, said the less scrupulous candidates and political activists will surely take advantage of the court decision to launch anonymous attacks.

Sullivan said the anonymous attacks will probably come more from interested third parties, and not candidates themselves, because usually candidates want credit for information they are delivering to the public.

But he said the decision does open the door for "all kinds of horrible scenarios," including campaigns creating a mail piece that looks like it came from their opponent and is intended to hurt their opponent.

Sullivan was working on former Clark County Commissioner Lance Malone's campaign when Malone was the target of a then-anonymous flier that criticized Malone for changing his stand on a neighborhood casino opposed by Station Casinos.

A public relations consultant and the Station Casinos executive who were behind the 39,000 fliers that depicted Malone with money coming out of his pockets were sued and fined for the anonymous mailer.

Peck said the Stations case showed the ACLU the state was seriously enforcing the law and played a part in prompting the ACLU to challenge the law.

Sullivan said the anonymous flier certainly played a part in Malone's defeat in the 2000 primary election. Malone has since been charged in an unrelated political corruption case involving a strip club owner and three others who served on the commission with him.

Sullivan also said he's concerned about how the Friday court ruling might make it easier for campaigns to under-report spending.

"If they're doing it all anonymously, how do you enforce that?" Sullivan said about the difficulty he sees in tracking down those people or groups who create anonymous campaign material.

State Senate Minority Leader Dina Titus, D-Las Vegas, said the court ruling will probably lead to more negative campaigns

"Anytime you can send out information anonymously, that means no holds barred," she said.

Titus, who is also a political science professor at the University of Nevada, Las Vegas, said that while she likes accountability and clean elections, she disagreed with the law because she thinks the protection for critics is more important.

Titus said the ruling "allows a candidate to run a more negative campaign and take the high road and pretend they are not doing it."

But she said that could backfire if they are discovered to be the authors of anonymous negative campaigning.

Craig Walton, emeritus professor of ethics and policy studies at UNLV, said even an anonymous attack that remains anonymous might not have the desired impact because voters can begin to see the attacked candidate as a victim. Also, most people will assume the attacks come from their political opponent.

Walton said the court ruling is good because it provides the protection of anonymity for those who fear retribution.

"But it also allows for sleazy, predatory corruptor to take advantage," he said.

In the end, Walton said a person's opinion of the law and ruling could come down to whether they think the public is gullible and needs to be kept from potentially misleading information, or if they think the public can sort through all the information available.