By Tom Still

MADISON – Before Friday night’s live debate between Wisconsin Supreme Court candidates Louis Butler and Mike Gableman, I had the privilege of prepping the citizen questioners who quizzed them. I was struck by how many of the “We the People/Wisconsin” questioners said they had soured on this particular election, or who claimed their friends and neighbors had been turned off by the negative advertising surrounding the race.

I’m not sure I believed it, given that citizens who voluntarily show up on a Friday night for a debate that coincides with a Wisconsin Badgers’ NCAA basketball tournament game can’t be all that cynical about the political process.

Still, their off-air frustrations in the hour or so before the broadcast revealed important questions about political advertising – particularly those ads produced and financed by groups outside the campaigns themselves. These ads, known collectively as “independent expenditure” ads, did more to influence political perceptions of the Butler-Gableman race than anything aired by the candidates themselves.

Most of the time, independent expenditure ads are negative ads. Few interest groups will spend money to produce ads that tout the record of their favored candidate; they will leave that to the candidates themselves. But they’ll spend heavily to attack the opponent’s record – and will do so without consulting their own favored candidate, who may privately welcome the unsolicited help or, occasionally, wish his campaign “friends” had not stepped over the line of truth and bad taste.

A few citizen questioners in the “We the People/Wisconsin” debate prep session wondered if independent expenditure ads could be banned or otherwise policed. Here are three reasons why that cannot – and should not – happen.

The First Amendment protects independent expenditure ads: For more than 30 years, whenever asked, and under different factual situations, the U.S. Supreme Court has consistently upheld the constitutional right of citizens to air or publish independent expenditure ads. It is free political speech, as protected by the Constitution’s First Amendment.

The defining court case was Buckley v. Valeo, a 1976 decision in which the U.S. Supreme Court upheld federal limits on campaign contributions and ruled that spending money to influence elections is a form of constitutionally protected free speech. Limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds were found to be “constitutionally infirm.”

That means such limitations placed severe restrictions on protected expression and association, all without showing any compelling and countervailing government interest necessary to sustain them. Why some news media cry for limiting independent expenditures ads is beyond me, for if those ads are constrained, freedom of the press may be next to feel the pinch.

Negative ads, independent or otherwise, serve a purpose: Without defending the accuracy of the ads in the Butler-Gableman race, such commercials serve as modern “town criers,” alerting the oblivious to the existence of the race. Let’s face it: State Supreme Court races are easily overlooked by most voters, and if not for the independent ads – as misleading as they may be – many of those voters wouldn’t know an election was scheduled.

I confess that’s a poor commentary on the desire of the average voter to keep informed, but it’s nonetheless true. Independent ads are the equivalent of someone standing in the town square and yelling about an issue to get your attention. It’s up to you (and responsible news media) to figure out if what’s being shouted is accurate, fair or even relevant to the election.

UW-Madison political science professor Ken Goldstein has researched the role of negative advertising for years and concluded that such ads can actually enrich the political process by focusing vital attention on issues and the differences between the candidates.

“Talking about people’s records and people’s weaknesses I think is perfectly fair game when we talk about the important things that are stake in elections,” Goldstein told the Wisconsin State Journal in a recent interview. “You don’t always find positive effects from negative advertising, but you’re not likely at all to find negative effects” such as reduced voter turnout.

Secretly, you like independent ads and other attack ads: Poll after poll has revealed that negative ads work, that people watch them or read them or even download them on their iPods to show their friends. They are conversation starters. They help voters begin the process of sifting through the charges and counter-charges.

The danger is, of course, that some people rely solely on what they see or read in these ads. Given that most independent expenditure ads bend the truth as much as possible, that’s a mistake. Voters owe it to themselves to do the necessary followup, such as reading much more detailed stories in their local newspapers or learning what non-partisan “ad watch” groups say about the truthfulness of the ads.

The Butler-Gableman race was anything but pretty, however, it’s not only an indictment of independent expenditure ads. It’s more an indictment of what follows after those ads are aired.

Still is president of the Wisconsin Technology Council, former associate editor of the Wisconsin State Journal, and a co-founder of the “We the People/Wisconsin” civic journalism project.