OLYMPIA, July 27.—Washington state’s political insiders have have been rolling their eyes for days now about the latest flap concerning the use of TVW footage in a political campaign commercial. Again? By now, they say, people ought to know better.
Actually, they do. It’s just that the campaign for Democrat Bob Ferguson, candidate for state attorney general, says the state public affairs channel can’t tell it what to do. It took footage from a TVW broadcast and used it in a political ad. The public-affairs network objected. The campaign refused to pull it down. And what flabbergasted anyone who has spent any time watching political campaigns in this state is that Ferguson’s staff initially maintained it had no idea that TVW objects to the use of its video in campaign commercials. “I’m not aware that anyone knew that,” spokesman Mike Webb told the Spokesman-Review.
But it wasn’t really an accident. And it is a matter of grave concern for the channel, which fears that its gavel-to-gavel coverage of state-government meetings and policy discussions will be imperiled. “We hope it isn’t going to open the door,” says TVW president Greg Lane.
TVW went public with its complaint this week, after the Ferguson campaign refused to take down the ad, posted on YouTube. It uses snippets from a June 12 debate to embarrass Republican candidate Reagan Dunn. The strange thing about the case is that any regular viewer of TVW broadcasts has seen the channel’s warning a thousand times – a tagline that appears at the end of every broadcast, cautioning that any reuse of programming “for political or commercial purposes is strictly prohibited.” Nor is it the first time such a thing has happened. The same issue played out in another political race three years ago, when King County Executive Dow Constantine took a snippet from a TVW broadcast to cast aspersions at candidate Susan Hutchison.
And then there’s the part all the insiders know. The primary consultant to the Constantine campaign back in 2009 also is working on this year’s campaign for Ferguson. All of which makes it a little harder to claim a lack of awareness. In response to a query from Washington State Wire, Webb said the campaign was aware of the 2009 incident, and had concluded that the use of the clip was permissible. “We didn’t anticipate them getting upset,” he said.
Makes Charge About Missed Votes
The Web ad, 49 seconds long, uses a passage from the Spokane debate to illustrate a charge against Dunn. During the debate, sponsored by the Association of Washington Business, each candidate was allowed to pose a question of the other. Ferguson demanded that Dunn explain why he had missed so many votes on the King County Council, on which both serve. Ferguson said Dunn had missed more votes than anyone else; Dunn challenged him to prove it.
As it turns out, at that particular moment, Ferguson’s charge was correct – that’s what the ad is about. In the world of politics, it’s a rather generic charge – attendance and voting records are what might be called opposition-research 101. And as you might expect, there’s a bit more to the story. The King County Council, like many local-government bodies, uses a “consent calendar” for non-controversial items. A single vote covers a dozen or more items. The outcome is never in doubt. And the way the vote scoring works, if a single consent vote is missed, that counts multiple times. So by the official count at the time of the debate Dunn missed 491 votes during his tenure, beating councilmember Jane Hague by 10 votes. For his part, Dunn says he sometimes misses those consent votes because he’s meeting with staff or constituents. His relative vote score has improved since June 12, partly because Hague has been on vacation, and also, one might suspect, because Ferguson made an issue of it in the debate.
Christian Sinderman, whose Northwest Passage Consulting is working on this year’s Ferguson campaign, and who played a central role in the 2009 Constantine campaign, says a candidate’s voting record is of course fair game.
“Reagan Dunn has a bad voting record for attendance at the King County Council, and he issued a challenge, and we wanted people to see that he was the one who raised the question,” Sinderman says. “He posed the question in a televised debate. And we are answering the challenge.”
What About the Clip?
The issue might be an issue, all right, even if it doesn’t have much to do with more serious topics like crime prevention and consumer protection. But then there’s the matter of form – the fact that the campaign is using TVW footage to hammer home its point. Sinderman points out that he didn’t produce the Ferguson ad – that was produced by consultant Dan Tully. But certainly Sinderman remembers the 2009 Constantine kerfuffle. The Constantine campaign’s attorneys looked at the issue at the time and decided that use of TVW clips in political advertising might be permissible as a matter of “fair use.” That’s the same exemption to copyright law that allows writers and reporters to quote brief passages from copyrighted material. TVW can object, but it doesn’t matter.
“It doesn’t mean that it’s illegal; it means that the people at TVW don’t like it,” he explains. “And this is one line, used in a limited capacity in response to a challenge from Reagan Dunn, so it is a pretty nominal use from anyone’s perspective.”
Include TVW Out
Talk to TVW, though, and it’s an outrage. TVW has never conceded that its video can be reused in campaign ads — far from it. That’s why the admonition appears at the end of every broadcast. Using TVW footage for campaign ads runs counter to everything the channel stands for, Lane says. On TVW, Washington’s version of C-SPAN, you don’t get sound bites; you get unedited coverage of meetings that often run for hours. There’s never a question of meaning – you see the entire thing, beginning to end, every glorious minute of it. As any viewer can attest, there are unguarded moments galore, and thousands of moments every week that might be plucked out of context and used for purposes of public embarrassment. It’s a public trust, Lane says, and to take snippets of TVW programming for political advertising is to misuse it.
“Those who work in the political culture are very aware that TVW videos are off-limits,” he says. “We have had great cooperation from the legislative caucuses, from the state parties and the vast majority of the candidates who have run throughout the years. People know that the video should not be used in this manner and most people respect that, and we appreciate their cooperation. Unfortunately, in this case with Ferguson, we didn’t have that.”
Can TVW legally prevent its signal from being reused in political ads? That has never been tested in court. If this keeps up, someday TVW may have to try that, Lane says. But he notes that in the channel’s 17-year existence, there have only been three cases where a campaign has refused to pull an ad after TVW objected. There was a case in 2006, when the Democratic Congressional Campaign Committee ran an independent ad for Darcy Burner. And then came Constantine and Ferguson.
“The public trusts us to be unbiased, nonpartisan and unedited, where we don’t take things out of context, and TVW is a resource where those three components exist. When people see TVW footage with our logo, our graphics and everything in a political ad, it threatens the reputation we have built over the years.
“What people don’t think about is that we get access to broadcast these events from organizations and from the Legislature because people believe [our broadcasts] won’t be used in campaigns. If suddenly all this material now becomes fair game for the campaigns, the access that we are granted to show these events and provide this information to the public is threatened. We may not be able to cover as many events as we have in the past because people will be afraid events may show up as part of the campaign. So it is public access to this information, and TVW’s reputation – that’s what is at stake.”
An Issue All by Itself
You know, Dunn says, if the Ferguson campaign wants to make an issue of missed votes on a consent calendar, the TVW affair is worth considering, too. Ferguson’s use of TVW clips despite the channel’s objection raises a question about character, he says. “I think we’ve got some well-established rules, and those rules exist to protect the integrity of TVW,” he says. “Bob Ferguson is certainly breaking the rules for political gain, and no attorney general should do that.”
Or at the very least, next time there’s a debate, Ferguson might send his own cameraman.