Morning Digest: How Democrats just got a false GOP ad taken off the air in a key Ohio race

And why third-party ads are especially vulnerable to takedown demands

Democratic Rep. Marcy Kaptur of Ohio (Credit: Marcy Kaptur for Congress)

Leading Off

OH-09

The DCCC has succeeded in getting TV stations to stop airing an ad from the Congressional Leadership Fund attacking Democratic Rep. Marcy Kaptur, taking advantage of rules that make untruthful third-party advertisements more vulnerable to take-down requests than those from rival campaigns.

The ad in question (which is still available on CLF's YouTube channel) claimed that Kaptur, who has served in the House since 1983, had passed "just one bill in 15 years." But as an expert who recently spoke to WTOL's Andre Norrils explained, most bills "become law by being incorporated in some other larger bill."

While Kaptur was the author of one successful stand-alone bill during this timeframe, her campaign noted in a press release that she's written many more pieces of legislation that were passed as part of a larger package. One such bill, for instance, created a new regional authority to promote economic development in the Great Lakes area and was included in a spending bill that funded government operations for the 2023 fiscal year.

Yet had Kaptur's Republican challenger in Ohio's 9th District, state Rep. Derek Merrin, aired this ad, it would still be running. But because it was paid for by an outside group, risk-averse stations chose to stop broadcasting it. The reason originates at an unusual intersection of American laws governing elections and those concerning defamation.

Normally, TV and radio stations can be sued for airing defamatory material—even advertising created by others—since stations are regarded as "publishers" of any such advertisements. But under federal law, broadcasters cannot censor or refuse to air ads from candidates as long as they're paid for.

In one memorable example from 2018, a station in New Mexico had to run a spot from a Democrat named Pat Davis, who started his ad by declaring, "Fuck the NRA." But while Davis succeeded in generating attention―the station even warned viewers that it had to air the commercial―the ad did little to boost his longshot campaign, which he abandoned before the primary.

Consequently, because they're obligated to run such commercials, stations have successfully argued that they should not be liable for defamation for anything said in a candidate's ad. (Campaigns themselves can be sued, but rivals rarely bother, since the election at hand is almost certain to wrap up long before any case could be adjudicated—though it does sometimes happen.)

That narrow carve-out, however, does not apply to third-party groups, whose ads broadcasters are free to reject. That means stations can be sued if they run potentially defamatory ads from, for instance, super PACs like CLF.

And because these are businesses interested in protecting their longer-term profitability, they have to decide whether to keep airing ads in the face of complaints that they're false. Whether or not a particular defamation claim would ever succeed, stations always have to consider whether they want to incur legal costs should a candidate ever follow through with a lawsuit.

That's not to say, however, that they simply roll over any time a lawyer writes an unhappy letter (which would typically be sent by a campaign rather than a party committee, though the DCCC is heavily invested in Kaptur's reelection). Ad sales departments don't want a reputation for fickleness, but more to the point, these companies want the advertising revenue.

That's why they typically have their own legal departments review grievances like the one the DCCC leveled against CLF's ad to assess their merit. That complaint proved successful, but that's not always going to be the case. (In one recent example, New Hampshire Democrat Colin Van Ostern failed to persuade stations to take down a questionable ad from a super PAC supporting his opponent.)

And even victories can be limited in scope. According to the Sandusky Register's Tom Jackson, CLF's ad "is now returning in amended form," though the PAC does not yet appear to have posted a revised version online.

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Senate

MI-Sen

The conservative Senate Leadership Fund announced Tuesday that it's booked an additional $10.5 million in ads in its quest to flip Michigan's open seat. The move, which comes two weeks after SLF reserved $22.5 million, brings the super PAC's total planned spending for the race to $33 million.

House

CT-05

Emerson College finds Democratic Rep. Jahana Hayes edging out Republican George Logan 49-46 in the first poll we've seen all year of their rematch in Connecticut's 5th District. Hayes fended off Logan 50.4-49.6—a margin of about 2,000 votes—in their 2022 contest for this constituency in the northwestern part of the state.

The survey, which was conducted for The Hill, WCTX, and WTNH, also shows Kamala Harris with just a 48-47 advantage over Donald Trump four years after Joe Biden prevailed 55-44 here. Respondents also favor Democratic Sen. Chris Murphy, who represented an almost identical version of the 5th District over a decade ago, by a larger 50-44 spread against a perennial Republican candidate named Matt Corey.

While Hayes and Logan's second bout doesn't top the list of the most expensive House races in the nation, GOP outside groups are still spending notable sums. The NRCC and the Koch network's Americans for Prosperity have together deployed $1.1 million to help Logan, while the DCCC accounts for most of the $230,000 that's gone to aid Hayes.

Logan could use the help: Hayes, according to quarterly disclosures filed Tuesday, outraised her Republican rival $1 million to $670,000 from July to September, and she finished last month with a wide $1.9 million to $420,000 lead in cash on hand.

And more money could be coming from both sides over the final three weeks. The conservative Congressional Leadership Fund reserved $1.1 million in TV time earlier this year while the pro-Democratic House Majority PAC booked $800,000. Neither group has yet used any of their reservations.

Democrats have held the 5th District ever since Murphy unseated longtime Republican Rep. Nancy Johnson during the 2006 blue wave, but it's not reliably Democratic turf. In 2012, Democrat Elizabeth Esty won the race to replace Murphy, who left to successfully run for the Senate, by a narrow 51-49 margin even as Barack Obama was prevailing 54-45 here. And while Esty won her next two elections handily, Hillary Clinton carried the 5th only 50-46 in 2016.

Northwestern Connecticut, however, swung back to the left over the next few years. Hayes decisively won the 2018 race to succeed Esty, who did not seek a fourth term following her failure to properly address sexual harassment complaints levied against her former chief of staff. Hayes, who is the first Black woman to represent the Nutmeg State in Congress, likewise had no trouble in 2020 as Biden carried her seat by double digits. 

Logan's near-miss two years ago, however, was an unwelcome reminder for Democrats of how politically volatile this region remains, though they were not caught unawares. That cycle, HMP and the DCCC spent almost $5 million to defend Hayes, while Republicans shelled out a comparable sum in the hopes of unseating her.

GA-02

Republican Wayne Johnson has released an internal poll from co/efficient that shows him trailing longtime Democratic Rep. Sanford Bishop just 45-42 in Georgia's 2nd District, a race that both national parties have been treating as uncompetitive. In the same survey, respondents favor Kamala Harris only 48-46 over Donald Trump in a southwestern Georgia constituency that Joe Biden carried 55-44 in the last presidential election.

Johnson, who previously served in Trump's Department of Education, campaigned for this seat in 2022, two years after an abortive and little-noticed Senate campaign. However, while Republican leaders hoped to target Bishop, who first won this seat in 1992, Johnson was far from their preferred candidate.

Several influential Republicans instead supported Army veteran Jeremy Hunt, who was the subject of a detailed Washington Post profile titled, "A Black Republican tries to bring in Black voters to the GOP." Hunt led Air Force veteran Chris West 37-30 in the first round of the GOP primary, while Johnson took a distant third at 19%. 

But while Hunt picked up a late endorsement from Trump, he failed to bring in GOP voters to the GOP. West earned Johnson's backing and narrowly won the runoff, which prompted deep-pocketed Republican groups to lose interest in the race. While GOP wallets remained closed, Democrats took no chances: They spent around $3 million to protect the congressman, who ultimately secured a 16th term by a 55-45 spread.

PA-10

The conservative Congressional Leadership Fund has booked $2.3 million to help far-right Rep. Scott Perry in Pennsylvania's 10th District, Punchbowl's Mica Soellner reports, but there's a catch. Soellner, citing data from AdImpact, says that these funds are being transferred from a $2.1 million reservation that another Republican group, the Eighteen Fifty-Four Fund, recently made to aid Perry, so it doesn't appear that much if any new GOP ad money is coming in to defend the congressman.

The development comes at a time when Democrat Janelle Stelson's campaign enjoys a huge advertising advantage, which she's likely to retain for the rest of the race. New campaign finance reports show that Stelson outraised the incumbent by a lopsided $2.8 million to $850,000 margin during the third quarter of the year, helping her to finish September with a $1.4 million to $720,000 edge in cash on hand.

Ballot Measures

OR Ballot

The campaign to bring ranked-choice voting to Oregon has outraised its opponents $4 million to $1,000―and no, we didn't forget to include any zeroes for the "no" side.

Most of the funding for Yes on Measure 117, the Willamette Week's Nigel Jaquiss reports, comes from an organization called Oregon Ranked Choice Voting Advocates, which does not have to disclose its donors.

Measure 117 would institute a ranked-choice voting system for both partisan primaries and general elections for president, U.S. Senate, U.S. House, and statewide executive offices starting in 2028. However, this plan, which lawmakers placed on the ballot last year, would not cover races for the legislature.

Meanwhile, local governments, including counties and cities, would be allowed to choose whether to adopt the new system. Some have already done so: In 2022, voters approved ranked-choice voting for local elections in Portland and in surrounding Multnomah County, which are the largest jurisdictions in the state.

Voters in six other states, plus Washington, D.C., will also decide next month whether to revamp their current election systems. Groups who want to change the status quo are promoting various plans in Arizona, Colorado, Idaho, Montana, Nevada, South Dakota, and the District of Columbia that would do either away with partisan primaries, adopt ranked-choice voting, or both.

Conservatives in Alaska, meanwhile, are backing an amendment that would repeal America's first top-four primary system and reinstate the old system of separate party primaries.

Out there in the rest of the world, ballot measures never get enough love. But at The Downballot, we give them pride of place. If you enjoy reading about them, please start a paid subscription today so that we can keep bringing you more great coverage.

Poll Pile

• MI-Sen: Fabrizio, Lee & Associates (R) and Impact Research (D) for the AARP: Elissa Slotkin (D): 49, Mike Rogers (R): 46 (46-46 presidential tie) (Aug.: 47-44 Slotkin)

• NE-Sen-A: SurveyUSA for Dan Osborn: Dan Osborn (I): 50, Deb Fischer (R-inc): 44 (late Sept.: 45-44 Osborn)

• PA-Sen: American Pulse Research and Polling (R): Bob Casey (D-inc): 48, Dave McCormick (R): 45 (49-48 Trump)

• MI-07: Cygnal (R) for Tom Barrett: Tom Barrett (R): 47, Curtis Hertel (D): 43 (Aug.: 48-43 Barrett) 

Ad Roundup

• FL-Sen: Debbie Mucarsel-Powell (D) and the DSCC - anti-Rick Scott (R-inc)

• MD-Sen: Women Vote PAC (EMILYs List affiliate) - anti-Larry Hogan (R) (here, here, and here)

• MI-Sen: Senate Majority PAC - anti-Mike Rogers (R)

• MT-Sen: SLF - anti-Jon Tester (D-inc); U.S. Chamber of Commerce - anti-Tester

• NV-Sen: Jacky Rosen (D-inc) - anti-Sam Brown (R); Rosen; Brown & NRSC - anti-Rosen; Brown - anti-Rosen (in Spanish)

• OH-Sen: American Crossroads - anti-Sherrod Brown (D-inc); SLF - anti-Brown; SLF - pro-Bernie Moreno (R) and anti-Brown

• PA-Sen: Bob Casey (D-inc) - anti-Dave McCormick (R); McCormick - anti-Casey; Senate Leadership Fund - anti-Casey

• TX-Sen: Colin Allred (D) - anti-Ted Cruz (R-inc); Truth and Courage PAC - anti-Allred (here and here); Chamber - pro-Cruz

• WI-Sen: SLF - anti-Tammy Baldwin (D-inc)

• IN-Gov: Jennifer McCormick (D) - anti-Mike Braun (R) (here and here)

• WA-Gov: Evergreen Values (DGA affiliate) - anti-Dave Reichert (R)

• AK-AL: Women Vote - anti-Nick Begich (R)

• AZ-01: House Majority PAC - anti-David Schweikert (R-inc); Chamber - pro-Schweikert

• AZ-06: HMP - anti-Juan Ciscomani (R-inc); Chamber - pro-Ciscomani

• CA-13: HMP - anti-John Duarte (R-inc) (in Spanish); Chamber - pro-Duarte

• CA-22: HMP - anti-David Valadao (R-inc); Chamber - pro-Valadao; CLF - anti-Rudy Salas (D)

• CA-27: HMP - anti-Mike Garcia (R-inc); Chamber - pro-Garcia

• CA-41: HMP - anti-Ken Calvert (R-inc) (here and here); Chamber - pro-Calvert

• CA-45: Chamber - pro-Michelle Steel (R-inc)

• CO-08: HMP - anti-Gabe Evans (R)

• DE-AL: Sarah McBride (D)

• IA-01: HMP - anti-Mariannette Miller-Meeks (R-inc); CLF - anti-Christina Bohannan (D)

• IA-02: Ashley Hinson (R-inc)

• IL-13: Nikki Budzinski (D-inc)

• IL-14: Lauren Underwood (D-inc)

• MD-06: April McClain Delaney (D) (here and here)

• ME-02: HMP - anti-Austin Theriault (R) (here and here); Chamber - pro-Jared Golden (D-inc)

• MI-07: Chamber - anti-Curtis Hertel (D)

• MI-08: Elect Democratic Women - anti-Paul Junge (R)

• MT-01: HMP - anti-Ryan Zinke (R-inc)

• NC-01: House Majority PAC - anti-Laurie Buckhout (R)

• NE-02: Chamber - pro-Don Bacon (R-inc)

• NJ-07: Chamber - pro-Tom Kean (R-inc)

• NY-04: Chamber - pro-Anthony D'Esposito (R-inc)

• NY-17: Chamber - pro-Mike Lawler (R-inc)

• NY-19: Chamber - pro-Marc Molinaro (R-inc)

• OH-13: Women Vote - anti-Kevin Coughlin (R)

• OR-05: HMP - anti-Lori Chavez-DeRemer (R-inc); Chamber - pro-Chavez-DeRemer

• PA-07: Women Vote - anti-Ryan Mackenzie (R); Chamber - anti-Susan Wild (D-inc)

• PA-08: Chamber - anti-Matt Cartwright (D-inc)

• VA-02: HMP - anti-Jen Kiggans (R-inc); VoteVets - anti-Kiggans; Chamber - pro-Kiggans

• VA-07: HMP - anti-Derrick Anderson (R)

• WA-03: HMP - anti-Joe Kent (R)

• WI-08: Kristin Lyerly (D) - anti-Tony Wied (R)

• NE Ballot: Protect Our Rights - pro-abortion amendment