RICHMOND, Va. – There's a reason the dirtiest political tricks of every campaign season surface a few days before each election: They're most effective then because there's so little time to rebut them.
In the past week, interests independent of any candidate in Tuesday's legislative elections have posted banners showing dead fetuses outside a church where a senator worshipped, and a flier attacking another senator raised the notion of genocide against black infants.
Over the top? Voters will decide that on Tuesday.
But it's not new. Compared to election lies and libels in the early days of the republic, today's stealthy, sometimes false, occasionally illegal efforts to knee-cap candidates at the finish line seem restrained. In the 1828 presidential races, rough-hewn Tennessean Andrew Jackson was labeled an adulterer and murderer and his opponent, John Quincy Adams, was called a pimp.
Vested interests often strike late because it's usually effective, said Steven Farnsworth, a political science professor at George Mason University in Fairfax.
"There's an old saying that a lie can run all the way around the world while the truth is still tying its shoes," Farnsworth said, noting that some 11th-hour smear efforts are careful to push the limits of taste and Virginia election laws. "There is a tendency to go right up to the line of what's acceptable."
Modern independent political advocacy late in the election season most commonly consists of "candidate scorecards" done by ideological, economic or single-issue groups that clearly communicate a preference to their supporters while avoiding an appeal to elect or defeat a specific candidate. When professionally done, the message can be delivered with without crossing the boundary into electioneering, which would trigger the law's requirements to disclose information to the State Board of Elections.
The conservative, Georgia-based Faith and Family Coalition headed by former Christian Coalition leader Ralph Reed as of Friday was providing voter guides for distribution in churches in five key state Senate contests, summarizing Democratic and Republican candidates on a half-dozen litmus-test issues, including opposition to abortion, gay rights, benefits for illegal immigrants, gun rights and public school sex education.
None of it is reported to the SBE, however, because it's "express advocacy," a free-speech right upheld by court decisions, and not regulated electioneering said Chris Piper, the SBE's veteran in-house expert on campaign finance law.
That also applies to activities of Save The Babies LLC, despite its grisly images and unsettling confrontational tactics. The nonprofit corporation parked a van across the street from a Roman Catholic church in Hampton where Democratic Sen. Mamie Locke was worshipping last Sunday. Plastered to the side of the van was a huge poster showing an aborted fetus beside Locke's name and the picture of a healthy baby next to the name of her GOP foe, Thomas Harmon. "Harmon, Pro-Life! Locke, Pro-Abortion!" the poster cried.
Locke, seeking re-election to a third Senate term and outraged by the move, contends her pro-choice stance means she opposes abortion but feels each woman must make her own decision.
Peter Barker, the founder and sole member of Save The Babies, did not return repeated telephone calls Friday from The Associated Press. But in an interview with the Daily Press of Newport News last week, the retired 80-year-old real estate agent said he acted as a Catholic who opposes abortion.
Barker never reported the action to the SBE, nor does he have to, Piper said, because despite the circumstances and his clearly implicit intent, Barker never expressly advocated Harmon's election or Locke's defeat.
In the marquee race between Republican former narcotics detective Bryce Reeves and seven-term Democratic Sen. R. Edward Houck, an anti-Houck by flier another group from the right, No Excuse Ministry PAC, opens with the most some of the most incendiary words imaginable: "Would you support killing African-American babies?"
What group organizer Terry Beatley calls "the black genocide brochure" never specifically alleges Houck supports such a thing, but it connects the pro-choice Houck to Planned Parenthood. The organization's founder, Margaret Sanger, was involved in the disgraced eugenics movement in the early 20th century and an effort to provide control services -- but not abortion -- to black people in the South.
The flier discomfits even Republican House Speaker Bill Howell, who gave Beatley's PAC about $10,000. "That's not what I had in mind when I gave the money," Howell said.
But Beatley is undeterred by Howell's reservations and plans to press her claim further the campaign's final weekend. "Bill's always going to have a softer voice than mine when it comes to life, but he's very pro-life."
Beatley's $439 independent expenditure against Houck is express advocacy, and it was reported to the state election agency.
Houck, predominantly a moderate who has won seven contested elections in a generally conservative Fredericksburg-area district, said in a recent interview he's accustomed to being demonized on the issue. "I make no apologies for it: I trust women to make their own decisions," he said.
Then there are the anonymous and illegal attacks like recent fliers produced by an unnamed anti-gay group targeting Sen. Ralph Northam. The flier accuses the centrist Norfolk Democrat of voting in the Senate to support "the Homosexual/Gay life style." Gays, the screed contends, "molest children into gay life" and "spread most of the Aids in America."
What takes it beyond express advocacy into illegal electioneering, Piper said, its closing appeal: "Should we return him to the senate to continue supporting such a group? I think not."
Not that the SBE will hunt down and prosecute the flier's unnamed authors. The General Assembly has never given the SBE enforcement authority or the cash it would need to run down campaign scofflaws. Flagrant and repeat cases, Piper said, are referred to local prosecutors.
The heavy hand of government policing robust and even bruising speech isn't a good thing in a free society, Farnsworth said.
"My personal preference is that everything be in the public domain and that it be disclosed," he said. "But invariably, the real response to unacceptable speech should be greater speech."