Law’s limbo means gloves off in hot race

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Law’s limbo means gloves off in hot race

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Democrat Dee Gillis is a retired beauty salon owner and grandmother who served side by side with Republican Bill Beagle on the Tipp City Council. But their race for the 5th District Senate seat in Ohio has been anything but congenial.

Gillis doesn’t smoke, isn’t keen on martinis and didn’t really vote herself a city pay raise. In fact, if she is re-elected and still on the council in 2016, her vote would actually cost her $13,078 annually in lost compensation.

Shading the truth isn’t new in the world of political advertising, but Ohio may be entering a new era where there are no official sanctions against misinformation, omissions or flat-out lies.

Ohio’s false statements law, which has prohibited lying in campaigns since 1976, was declared unconstitutional by U.S. District Court Judge Timothy Black a month ago. The state is appealing the ruling but meanwhile, the Ohio Elections Commission, which typically heard 25 to 80 false statement cases each year, is blocked from enforcing the criminal law.

“What we are seeing is probably the immediate effect of that ruling. The gloves are off,” said Monica Dias, a former newspaper reporter turned First Amendment lawyer based in Cincinnati. “Now more than ever, voters should take anything they see or hear in a political ad with a huge grain of salt.”

Accusations have flown back and forth in the hotly contested Beagle-Gillis race, but the martini ad is striking for its level of personal attack and false representation.

“It is a lie,” Gillis said. “I’m disappointed in Bill. We know each other. He knows I’m not this kind of person.”

Beagle did not respond to questions about the ad. Chris Schrimpf, spokesman for the Ohio Republican Party, said “We think the mailing speaks for itself. Sometimes the truth hurts.”

The pay raise accusation omits key information. Tipp City council members did vote to raise the annual pay for future council members to $5,000 from the current $1,000, beginning in January 2016. But each member would have to get re-elected in order to receive the pay increase, and as part of the package they forfeited city-paid health insurance coverage.

Gillis is on the family plan, and said she would lose $13,078 a year if she stays on the council.

John Green, the city’s finance director and interim city manager, said most council members take the insurance, so the elimination of health coverage provided “a significant benefit to the city.”

New era

The fight over false statements in political advertising puts Ohio in a state of limbo over what the legal boundaries are.

In his ruling, Black said lies have no place in the political arena but that a government agency shouldn’t be given the power to determine truth from fiction.

“Instead, in a democracy, the voters should decide,” Black wrote. His decision came on the heels of the 8th Circuit Court of Appeals tossing out Minnesota’s false statements law. About 17 states, including Ohio, have such laws.

Bob Fitrakis, a lawyer who is running for lieutenant governor on the Green Party ticket, said the false statements law provides only a small deterrent to the deception, distortion and hyperbole that have long been present in negative political ads. People found in violation of the law typically face only a slap on the wrist from the Ohio Elections Commission, he said.

Phil Richter, the commission’s executive director, defended the commission’s work but said court rulings that took away the ability to impose fines and issue reprimands have hobbled enforcement. That left only the option of reviewing the cases and making findings, or referring the most egregious cases to county prosecutors.

Since 1996, the commission made only seven such referrals, Richter said, with six resulting in some sort of punishment.

Negativity in political ads has stepped up since the U.S. Supreme Court’s Citizens United ruling in 2010, Fitrakis said. The ruling, which allows independent political spending by non-profits, corporations, labor unions and others, has opened the floodgates for political spending that is not coordinated with the campaigns. Some of the money is publicly disclosed, while other sources are “dark” or hidden depending on the type of organization set up to raise and spend the money.

One result is a confusing clutter of political ads at election time, and in southwest Ohio no race is playing out more on TV screens and doorsteps than the 5th district Senate race.

‘She’s lying’

Beagle is benefiting from ads sponsored by the Republican Senate Campaign Committee (RSCC), the Ohio Republican Party (ORP) and at least one super PAC sponsored by the concrete industry: Concrete & Portland Cement Action Network.

Gillis is bolstered by ads from the Ohio Democratic Party, Ohio Senate Democrats and the Coalition for Ohio’s Future, a super PAC with $750,000 in donations from public employee unions.

The RSCC is paying for all of Beagle’s TV ads and has spent about $450,700 as of Friday at the Dayton region’s four broadcast stations, according to records kept by the stations. The Senate Democrats and coalition are paying for all the TV ads benefiting Gillis and together have spent about $132,125 as of Friday, the records show.

The Democrats began the attack ad war in late September with a television ad that said “Bill Beagle raised your taxes and gave $400 million in tax breaks to the wealthy.” It also attacked him for supporting formation of JobsOhio to handle economic development for the state, benefiting from campaign contributions from lobbyists and corporate special interests and having his campaign run by state employees under investigation for doing political work at taxpayer expense. [Watch the ad]

The RSCC shot back with an ad about Gillis saying “she’s lying” and featuring Beagle defending his record on taxes and jobs. Neither Beagle nor the RSCC responded to multiple requests for comment on any of the ads. [Watch the ad]

A Dayton Daily News review of the anti-Beagle ad found nothing that was clearly untrue. The budget bill supported by Beagle did include tax increases, though he has said he backed the plan because the tax increases were part of an overall tax reform package that included lowering the income tax and boosting the earned income tax credit for low income people.

Zach Roberts, campaign manager for Gillis, said the ad legitimately addresses Beagle’s record, and nothing in it is “intentionally misleading.”

The “she’s lying” ad that came in response is unusual, according to Mark Caleb Smith, director of the Center for Political Studies at Cedarville University.

“It’s unusual to be so blunt as to use ‘liar,’” he said.

Although the ad was paid for by the RSCC, Beagle appears in it and says on camera, “When politicians get desperate they resort to false attacks. But you deserve the truth.” A voice-over says Beagle is “a leader you can trust.”

Approached at a candidate forum in downtown Dayton earlier this month, Beagle refused to answer questions about the ad. In a later email he said, “Regarding the ads, they were not produced by my campaign. I am happy to answer any policy question you might have about policy issues contained in the ads, but questions about production or placement should be directed to the Republican Senate Campaign Committee.”

Beagle isn’t completely removed from responsibility for the ad, however. Broadcast station files show Beagle signed a form on Sept. 29 authorizing the RSCC “to run television advertisements on my behalf,” an authorization that allowed the RSCC to buy the ads at a discount.

Richter said the ad claiming that Gillis voted herself a pay raise is the type of false statement that has gotten candidates in trouble in the past. Ohio law prohibits public officials from voting themselves a raise that takes effect during their current term.

“When the commission has had those kind of cases brought to it in the past, the commission in some cases has found a violation of the statute,” Richter said.

Last week, a group supporting Gillis began airing an anti-Beagle television ad that also fudges the truth a bit.

The 30-second spot, paid for by the the super PAC, Coalition for Ohio’s Future, features a beagle dog and says the senator is “no friend to women” because he voted to mandate “invasive ultrasounds” and limit access to cancer screenings and birth control. Doctors are now legally required to conduct ultrasounds before performing abortions, but the law doesn’t spell out what kind — external or transvaginal. External or standard ultrasounds, performed on pregnant women routinely, are generally not considered invasive. [Watch the ad]

The super PAC treasurer did not return messages seeking comment.

‘They do work’

Voters say they detest negative political ads, but there is a simple truth that explains why they are so ubiquitous each election season.

“They do work,” said Paul Leonard, a former Dayton mayor and Democrat lieutenant governor who teaches political science at Wright State University.

Scott Borgemenke, a Republican who has crafted political ads for more than 20 years, said negative campaigning can backfire.

“There is always a risk when you go negative. Always,” he said. “Finding that balance is what makes this an art, not a science. There is a line. It’s like pornography. I don’t know what it is but I know it when I see it. You can go too far and you lose credibility.”

Borgemenke stands by his ads, even a controversial one he produced in the 2004 Ohio Senate race between Republican Joy Padgett and Democratic challenger Terry Anderson, a former Associated Press reporter who was held hostage in the Middle East by terrorists for seven years. The ad portrayed Anderson as a terrorist sympathizer because he met with his former captors after his release.

Borgemenke said Anderson used his captivity as a positive, thereby making it fair game to point out negative aspects such as shaking hands with the kidnappers.

Padgett won the race with 54 percent of the vote.

Richter said it is not always easy to parse out truth, opinion and false statements, and he feels sorry for citizens who will have to do it themselves now that the elections commission isn’t allowed to help keep politicians honest in their political ads.

“It can be difficult,” Richter said. “They may have the ability to research these sorts of things, but it takes a great deal of time.”

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