Running for office? Make sure to hire a good lawyer.
Republicans and Democrats are not only slinging traditional mud this election season – they are increasingly retaliating with legal action.
Some say the tactics are a new generation of political strategy – negative on negative.
While some of the complaints have gotten results, “generally, what it seems people are after is the publicity surrounding the complaint rather than the outcome of it,” said Denver Deputy District Attorney Dick Reeve, who has been handling election complaints for 14 years.
Another veteran prosecutor said that in almost 20 years, he has never seen a successful prosecution.
But that hasn’t stopped campaigns from filing them.
“Turn a negative ad into an advantage by responding negatively to a negative ad,” said John Straayer of Colorado State University. “I think it’s sounding whiny. I think it clearly comes across to the public readership as whiny, but I think it’s very purposeful and tactical,” the political science professor said.
Politicos say it’s the most litigious election season in memory – not surprising considering the bruising battles underway for control of the statehouse and the governorship.
“I would say at least 10 times more than what we’ve seen in past cycles,” said Republican political consultant Katy Atkinson.
Last week, for instance, gubernatorial candidates Bob Beauprez and Bill Ritter issued dueling demands that ads attacking them be pulled. Their lawyers sent the stations airing the spots cease-and-desist letters.
Even the independent political groups behind the nastiest of the nasty are complaining.
Tracking the number of complaints, however, is difficult, as they can be lodged with television stations, the secretary of state, the attorney general or any of the state’s 22 district attorneys.
Complaint-advisory panel
But those involved in the cases said they are definitely on the rise. Republican election lawyer John Zakhem said he’s seen legal action jump 30 to 40 percent this year.
That increase, in part, led the state’s prosecutors this year to develop a panel to provide nonpartisan advice on election complaints to district attorneys.
The most common complaint this year, many say, is the nasty-gram alleging false advertising. Under the practice, a lawyer will send a letter to a television station threatening legal action unless a “false” ad is pulled.
For instance, Ritter’s campaign has twice asked stations to pull ads it thought were “false and misleading.”
Last week, Ritter asked stations to yank an ad saying he cut a deal with a hit-and-run driver who killed a 4-year-old.
Beauprez, meanwhile, demanded TV stations pull a Ritter ad that cuts to a clip of the Republican implying he would be accountable for attacks on Ritter’s record as Denver district attorney.
The claims are an outgrowth of a 2005 law that lowered the standard for false campaign statements from knowingly to reckless, said Democratic Adams County District Attorney Don Quick, who sits on the bipartisan district attorneys’ campaign-complaint advisory panel.
The change, Quick said, was designed to force campaigns to verify their claims’ truthfulness.
But that hasn’t happened, Quick said. “It just seems people color up to a different line.”
“By picking gray language, they leave the impression of something but they make it very difficult for us to say it’s outright false,” Quick said.
Ritter also complained that an ad run by Trailhead, a Republican campaign group, was false because it said he “avoided enforcing the death penalty” when he had asked for the death penalty seven times.
But Alan Philp of Trailhead said, “The word avoid is a very legitimate word there because avoid does not mean 100 percent. It means in most cases.”
And therein lies the rub, Quick said. The ad is not accurate but also is not a provably false statement. In 19 years as a prosecutor, he said, he doesn’t remember a successful prosecution of a campaign complaint.
Democratic ad yanked
However, a complaint doesn’t have to be proved in court to be effective.
Republican state Rep. Matt Knoedler, who is running for the state Senate, successfully brought down an ad he said falsely characterized his position on illegal immigration by firing off a letter threatening legal action.
The sponsors of that ad, Democratic group Clear Peak Colorado, learned a lesson, said spokesman John Willard.
“We thought what we were saying was true, but we learned that there has to be a higher level of truth in advertising,” he said.
The rise of groups such as Clear Peak and Trailhead – so-called 527s that can raise unlimited money – also has led to more complaints.
Because the groups must operate independently from candidate committees, accountability must be forced through the courts, observers said. Unlike a candidate, the groups don’t have to answer for their messages.
“Frankly, when you’re putting your name behind it, you’re a lot less likely to say something that’s not true,” said John Marshall, Beauprez’s campaign manager.
Staff writer Chris Frates can be reached at 303-954-1633 or cfrates@denverpost.com.
