Oct 31, 2022 - Politics & Policy

The cease-and-desist election

Illustration of a gavel with arrows and abstract shapes.

Illustration: Allie Carl/Axios

Candidates from both parties are mobilizing their legal teams in last-ditch attempts to get their opponents' attack ads yanked off the airwaves, records show.

Why it matters: In a midterm cycle dominated by attempts to paint the other side as extreme, the ads in question range from disputed to outright fabrications. But almost invariably, they focus on one of two major issues driving campaign messaging: crime and abortion.

Driving the news: In the past week, two Republican Senate candidates — Eric Schmitt of Missouri and Joe O'Dea of Colorado — have blasted out cease-and-desist letters to TV stations they say are airing ads that misrepresent their views and records on abortion policy. The opposing campaigns say they stand by the ads.

  • Multiple North Carolina TV stations have removed Republican attack ads against former state Supreme Court chief justice Cheri Beasley, running against GOP Rep. Ted Budd in the state's competitive U.S. Senate race, for improperly suggesting she has been lenient with sentencing in child pornography cases.
  • In Texas, Democratic lieutenant governor candidate Mike Collier's campaign demanded stations pull an ad from Republican incumbent Dan Patrick, citing what it says are a host of inaccurate statements about his views on issues including immigration and policing. Patrick's team has stood by the spot.

In the New York governor's race, Republican candidate Lee Zeldin was forced to swap out a clip from an ad that showed crime scenes in Oakland, California — not in New York City as the narrator claims.

  • Another of Zeldin's major TV spots could be soon altered: The family of a Black man killed by the NYPD has hired lawyers as they implore the GOP candidate to remove a clip from a violent ad that implies the victim was holding a gun. Zeldin has thus far refused.

Between the lines: Under federal law, TV stations are not liable for defamatory statements in candidate ads. That means the legal threats aimed at such spots are generally futile.

  • But that standard doesn’t apply to ads aired by non-candidate groups such as super PACs, and it’s more common for stations to yank such spots in response to a demand letter.

Campaigns’ legal demands can also serve as a messaging device.

  • In Pennsylvania's U.S. Senate race, Republican Mehmet Oz's legal counsel has been in a battle with the Senate Majority PAC after the Democratic group blasted out ads suggesting Oz was involved in killing dogs as part of his past medical research.
  • Oz's camp declared it succeeded in getting the spot pulled, trumpeting it as a victory against Democrats' "ridiculous lies." SMP disputes that the ads were "taken down" and announced plans to air an "encore round" of the puppy campaign.

Yes, but: Sometimes the ads are, in fact, outright fabrications — or at least gross misrepresentations designed to mislead.

  • In Texas' gubernatorial race, Republican Gov. Greg Abbott cut up remarks from Democratic challenger Beto O’Rourke into a quote that makes him sound like he supports defunding the police. (Abbott's team stands by their ad.)
  • One of GOP Senate nominee J.D. Vance's ads uses Rep. Tim Ryan's past criticisms of police as a way to tie him to more liberal colleagues who support the defund movement (which Ryan does not).
  • Some of Wisconsin Sen. Ron Johnson's ads have spliced words together and left others out to make Democratic Lt. Gov. Mandela Barnes sound like he supports violence against police officers. Johnson has been fact-checked and criticized for omitting critical context and misleading viewers.

Zoom in: Local races aren't exempt from the advertising scandals.

  • Republicans have targeted Democratic state legislative and congressional candidates in North Carolina with photoshopped "defund the police shirts" on mail advertisements; holograms mimicking candidates with fake voices in TV advertisements, and deceptive images suggesting candidates were arrested when they weren't.
  • Those misleading efforts have prompted outcry on social media but still circulated widely.

What they're saying: "When we’re silent when the attacks actually happen, that can speak more than the attack by itself," Navin Nayak, head of CAP Action, told Axios.

  • Janiyah Thomas, a spokesperson for the Republican National Committee, said in a statement: “While Democrats continue to deny that crime exists and backpedal on defunding the police, Americans know that they can trust Republican leadership to handle the crime crisis."

The big picture: This rising cease-and-desist phenomenon is the product of an "unprecedented" information environment, said Jennifer Stromer-Galley, professor at Syracuse University's School of Information Studies.

  • "We've gone from stretching the truth to just constructing an entirely new reality," she told Axios.
  • "Our democracy requires the public has correct information in order to make a judgment in their best interests. We are currently and increasingly in an informational environment where they cannot do that because it’s full of deceptions."
Go deeper