In the middle of October, three weeks out from Election Day, Donald Trump’s campaign and allies finally started to reach parity on television advertising with Hillary Clinton. As the race grew tighter, Hillary Clinton was in need of new allies.
It turns out the CBS network was all too happy to oblige.
Two weeks before the Election Day, for the first time, Trump began spending more on TV ads than the former Secretary of State.
It was a combination of factors, including candidate Trump’s message discipline, the RNC’s ground game, and FBI Director Comey’s announcement, that played into Trump’s Election Day victory.
But one factor that has gone unreported is the over $50 million onslaught of independent advertising spearheaded by the Future45 super PAC and 45Committee policy education organization opposing Hillary Clinton and supporting Trump.
Worse yet, also unreported were the extraordinary efforts that the Clinton campaign underwent in an attempt to stifle free speech and silence these critics.
When a campaign sponsors advertising, the stations carrying those ads are subject to the FCC’s “must carry” provisions and cannot legally censor the content of such candidate advertising. Defamation laws are the only remedy for a candidate aggrieved by opposing candidate advertising.
In contrast, when a super PAC or 501(c)(4) organization runs independent advertising, those FCC provisions do not apply, and election lawyers know that if the ad gets just one fact wrong, it is ripe for a “cease and desist” letter to the stations carrying the advertisements.
When the Clinton campaign learned of the ad buys, they immediately began matching the buy station-for-station across the country, including in Wisconsin where they had invested only minimal funds to date.
The Future45 super PAC and 45Committee had a $30 million dollar buy of ads in rotation that informed viewers of the numerous investigations into Hillary Clinton, including the FBI’s investigation into her email server and its ongoing investigation into the Clinton Foundation.
At almost the exact same time as Director Comey sent his letter to Congress stating that “we have not changed our conclusions that we expressed in July with respect to Secretary Clinton,” Clinton’s attorneys pounced on the stations (read the letter here) running the committees’ ads in an attempt to intimidate them into pulling the spots, making dishonest arguments about Comey’s ambiguous letter to Congress.
Instead of following protocol, CBS took it upon itself to get in Clinton’s corner and play censor to her critics, as the network unilaterally yanked the committees’ purchased ads from circulation during 60 Minutes and its popular Sunday primetime lineup.
CBS violated longstanding protocol and took these measures without allowing supporters of Donald Trump to provide any response to Clinton’s frivolous cease and desist letter or provide substantiation for their ads.
In striking contrast to CBS’s unfounded actions to help Clinton, when stations followed protocol and gave us (attorneys for Future45 and 45Committee) the opportunity to respond to Clinton’s letter (read our response here), more than 140 stations nationwide deemed the ads to be truthful and kept them on the air.
While we appreciate that almost all stations that reviewed the ads validated their accuracy and kept them on the air, the actions of CBS in changing their process and censoring political advertising without giving the sponsor a chance to argue our case is totally unacceptable and bears scrutiny.
Charlie Spies, leader of Clark Hill PLC’s national Political Law practice, has served as election law counsel for the Republican National Committee and also CFO and counsel for Mitt Romney’s 2008 presidential campaign, as well as counsel to the two largest conservative super PACS in history.