by Albert May, Associate Professor of Media & Public Affairs
The following excerpt is from “Swift Vote Vets in 2004: Press Coverage of an Independent Campaign” by Albert L. May in the Fall 2005 volume of First Amendment Law Review of the University of North Carolina School of Law. The article, [embedded link to full article], is a case study of the uneven coverage of the Swift Boat Veterans For Truth from the time they emerged in May 2004 through their incendiary television attack on John Kerry’s combat record in August. The article explains the difficulty journalists had in grasping the complexity and potential of the campaign finance vehicle that the Swift Boat Vets utilized, the 527 organization. Journalists were handicapped by a new disclosure system that proved opaque, easy to manipulate and unable to keep pace with an independent campaign vehicle built for speed. Reporters also found it difficult to truth test the Swift Boat attack.
Reprinted with permission of the First Amendment Law Review, Vol. 4 pp. 101-106
Complete article available here.
In addition to disclosing who is paying for campaigns and how the money is being spent, political journalists since the 1990s have enlarged their role as arbiters of truth and appropriate behavior in advertising and other campaign messages. One scholar in the early 1990s refined the traditional notion of the watchdog journalist, the member of the idealized “Fourth Estate,” with a sports analogy – the journalist as the “essential referee.”(1)
A legacy of the 1988 Horton episode, when journalists felt manipulated, was an effort by referees in news organizations to “adwatch” television advertising, gauging such measures as accuracy, civility, purpose and fairness. Fact checking candidate assertions in debates also became standard journalistic practice. A similar resurgence of truth testing by news organizations occurred in the fall of 2004, which some journalists attributed to the Swift Boat Vets’ August campaign.(2)
As the advertising attack of the Swift Boats Vet demonstrated, it is difficult for journalists in the polarized atmosphere of our modern campaigns to simply label something untrue or a distortion, without seeming to take sides and forfeiting the role of the referee. It is particularly difficult when dealing with thirty-five-year-old events in which participants have diametrically opposed recollections of what happened. Michael Dobbs of the Washington Post tried to sort it out when, in early August, he endeavored to recreate the battle of the Bay Hap River , the climatic episode of Kerry’s combat tour when he rescued Rassmann, won a Bronze Star, and received his third wound.
When he embarked on the assignment, Dobbs said he was struck by how “the debate was devoid of facts” and consisted mostly of “blathering heads” on television.(3)(4) Dobbs spent almost three weeks reporting the story. Along the way he unearthed a medal citation for valor for one of Kerry’s accusers, Larry Thurlow, who also commanded a swift boat during the Bay Hap engagement. Thurlow’s Bronze Star citation was for bravery “despite enemy bullets flying about him,” enemy fire that Swift Boat Vets said hadn’t occurred.
On August 22, 2004 , the Post published Dobbs’ full account of the battle of the Bay Hap, including his finding that both O’Neill’s book attacking Kerry and Brinkley’s book supporting Kerry contain “significant flaws and factual errors.”(5) Dobbs’ story first appeared in the newspaper’s “bulldog” Saturday edition, although it was missing a paragraph as Dobbs contemplated how he should try to conclude who was telling the truth. At deadline for the main Sunday edition, he inserted the following: “Both sides have withheld information from the public record and provided an incomplete and sometimes inaccurate picture of what took place. But although Kerry’s accusers have succeeded in raising doubts about his war record, they have failed to come up with sufficient evidence to prove him a liar.”(6)
How Dobbs viewed his role is instructive for journalists. He did not view himself as a “truth cop” but more like a member of a jury. “Even [with] the best work in the world, you can’t completely establish facts from more than 30 years ago,” he said. “After the reporting I had done, I thought I had the right to make a conclusion. . . . We’re not interpreting the evidence so much as we weigh it.”(7)
The journalistic verdict on the first Swift Boat ad was in, but the ad had been off the air for ten days. The Swift Boat Vets had moved back to attacking Kerry for his anti-war testimony in 1971 in a second ad. There was little for journalists to truth test in the second ad because it largely featured video footage of Kerry, in all his 1970’s long-haired, combat-fatigued splendor, testifying about atrocities committed by Americans in Vietnam.
Some have argued that the second Swift Boat Vets ad was even more damaging to Kerry than the first, even though it did not generate the news coverage of the earlier one. But it did not have to because the second advertisement was propelled by a much more substantial $1 million media buy, mostly targeted to a national cable news audience that would swell during the coverage of the Republican National Convention.(8) The second advertisement ran from August 14 to September 2, 2004 ,(9) an important period that requires one final dip into the prosaic world of campaign finance rules.
September 2, 2004 , was the last day that Swift Boat Vets could advertise in the “dark,” outside the time windows that triggered disclosure under the new electioneering communications provision.(10) Again, several factors came into play in how the new provision worked: the amount spent ($1000 or more), proximity to the general election (within sixty days) or the primaries or nominating conventions (within thirty days), and the content of the advertising.(11) The Democratic convention disclosure window for issue advocacy ads that pictured or referred to Kerry was from June 26 to July 29, 2004, which Swift Boat Vets avoided by postponing the attack until August 5, 2004. The disclosure window for advertisements that pictured or referred to Bush in advance of and through the Republican convention was from July 31 to September 2, 2004 . None of the Swift Boat Vets ads mentioned or pictured Bush. September 3, 2004 through the date of the general election was the window for disclosure set by the FEC involving ads that pictured or referred to either candidate. On September 3, 2004 , the Swift Boat Vets went off the air for more than a week.(12)
So, the question arises: Was the second ad buy timed to end right at the close of the Republican National Convention or avoid disclosure, or maybe both? “I do not recall that we made any decisions on timing or content based on the reporting requirements,’’ said LaCivita, but he said that complying with the reporting requirements by inputting the names and identities of a large number of contributors held up the third wave of Swift Boat ads. He added, “I was literally being held back by our accountant.”(13)
The disclosure report that the Swift Boat Vets filed on September 10, 2004 , when they launched their third wave of advertising against Kerry, showed that they raised almost $7 million.(14) In the disclosure report, reporters would discover Pickens, the Wyly brothers, and other major contributors.
A reader, however, would have to look inside the various papers for the news because journalists had moved onto another story about a presidential candidate and Vietnam . Two days earlier, CBS News aired a story that, based on documents later found to be forged, said that Bush had received preferential treatment while in the Texas Air National Guard.(15) The CBS story changed the dynamics of the campaign, and shifted attention away from the Swift Boat Vets, who would continue their media assault, tripling their spending in the campaign against Kerry.(16) But the Swift Boat Vets would never again command the media stage as they had for almost six weeks, and the campaign story would shift to a more comfortable frame for journalists. Now both sides were misbehaving, which made it a lot easier to write about. A September 20, 2004 cover of Newsweek captured the change: “The Slime Campaign: How Both Sides Are Using the 527 Loophole to Throw Mud and Turn Out the Vote.”(17)
The Swift Boat Vets added a chapter in American political history that reaffirmed the power of independent actors to change the course of elections. However, they also tested the ability of journalists to perform their traditional role as essential referees in a new era of media politics, and gave future independent groups a roadmap for working the system.
A group of individuals, united by their fury toward a major party candidate for president, showed how to take advantage of a newly popular vehicle for waging independent campaigns – a 527 committee – that allows unlimited contributions to be raised quickly and without timely disclosure. In spending that money on an audacious, or cynical, advertising campaign, they leveraged modest purchases of inflammatory television advertising to attract invaluable free media coverage, demonstrating how to take advantage of a fragmented and polarized media environment.
The history of independent activity indicates that the system will provide avenues to political actors with the money to get their message out. At this writing, it appears unlikely the campaign finance regulatory regime of the 2004 election will change dramatically for 2006 and possibly for 2008. Whether Congress, the courts or federal regulators should restrict contributions and expenditures of 527 organizations is not the focus of this article. What this case study demonstrates is that the current disclosure regime is a rowboat, not a swift boat.
A dual reporting system to two very different regulatory agencies is hard to navigate and even harder to justify. In the electronic age, significant contributions and expenditures can be disclosed in real time, not inside or outside artificial disclosure windows or with lag times of several weeks or months. If journalists had had a contemporaneous understanding of the network financing Swift Boat Vets, they might have taken the group more seriously and the story might have unfolded more deliberately. The real-time, political free speech of the Swift Boat Vets and their ability to raise unlimited amounts of money to air attack advertisements enjoyed First Amendment protections. In an era of instant reporting and the twenty-four/seven news cycle, full disclosure should be in real time, too, especially when it helps journalists protect the integrity of the democratic process.
Journalists can draw several lessons from the story of the Swift Boat Vets. Some are obvious, such as more openness to new groups appearing on a crowded stage, more truth testing of campaign messages regardless of how they are communicated, and more restraint in reacting to small television buys for attack ads. However, there is one more core lesson to draw: more humility, meaning not only less arrogance in dismissing a noisome or unfamiliar group, but a renewed appreciation that even the best reporter rarely has the whole story on any given day. In politics, there is almost always something more just beneath the surface that is worth digging for, sometimes even a Boone.
(1). See Philip Seib, Campaigns and Conscience: The Ethics of Political Journalism 6 (1994). The Fourth Estate refers to the historical role the press has played in checking and balancing the traditional three branches of government.
(2). Lori Robertson, Campaign Trail Veterans for Truth, Am. Journalism Rev., Dec. 2004/Jan. 2005, at 39.
(3). Telephone Interview with Michael Dobbs, Staff Writer, Washington Post ( June 9, 2005 ).
(4). Michael Dobbs, Records Counter a Critic of Kerry: Fellow Skipper’s Citation Refers to Enemy Fire, Wash. Post, Aug. 19, 2004 , at A1.
(5). Dobbs based his reporting in part on interviews of more than two dozen swift boat veterans, but noted that Kerry was “the only surviving skipper on the river that day who declined a request for an interview.” Michael Dobbs, Swift Boat Accounts Incomplete; Critics Fail to Disprove Kerry’s Version of Vietnam War Episode, Wash. Post, Aug. 22, 2004 , at A1.
(6) . Id.
(7). Dobbs, supra note 3.
(8). Telephone Interview with Chris LaCivita, Media Consultant, LaCivita Consulting, in Midlothian, Va. ( June 28, 2005)
(9) . Id. (run dates for the Swift Boat Vets advertisements were supplied by LaCivita from his files and are on file with author).
(10). See Guide to 2004 Reporting: Coverage Periods for Electioneering Communications Made on Behalf of 2004 Presidential Candidates, FEC, available atMcConnell v. FEC, 540 U.S. 93 (2003), including the electioneering communications provision. Designed to curtail the rise of issue advocacy advertising that started in the mid-1990s, this provision required, in the case of congressional races, that the covered ads target voters in the respective congressional districts or states. Advertisements paid for by corporations or labor unions, using “soft money,” i.e. donations unregulated by the FEC, would be banned during the coverage windows. However, nonprofit organizations and 527 organizations could air the ads, provided that the funds used came only from individuals. 2 U.S.C. § 434(f)(3)(A) (2005). http://www.fec.gov/info/charts_ec_dates_press.html (search using the entire title, then search document using ‘ctrl+f’ and ‘electioneering’). The BCRA, which became effective Nov. 6, 2002 to cover the 2004 elections, was the most sweeping campaign finance reform since the Watergate era. The law was largely upheld in
(12). See LaCivita Interview, supra note 8. 9.
(14). See Thomas B. Edsall, Swift Boat Group’s Tally: $6.7 Million, Wash. Post, Sept. 11, 2004 , at A5; see also Glen Justice & Eric Lichtblau, Windfall for Anti-Kerry Veterans’ Group, With Texans Among Those Giving Most, N.Y. Times, Sept. 11, 2004 , at A13.
(15). 60 Minutes II (CBS television broadcast Sept. 8, 2004 ).
(16). In its subsequent television advertising through the election, Swift Boat Vets never again directly accused Kerry of having lied to win his medals, suggesting that press scrutiny of the first advertisement took a toll.
(17). Howard Fineman & Michael Isikoff, Slime Time Live, Newsweek, Sept. 20, 2004, at 18.