In our post-television age, a new opening for campaign finance reform

This blog originally appeared on January 27,  2018 in The Hill.

The current laws on campaign finance and money and politics are dead. Dead not because of rulings by the Roberts Supreme Court which have overruled much of the current laws in place since the 1970s. Their death is a result of the United States moving into a post-television era where the assumptions that defined much of the law on money in politics are rapidly losing or have lost their validity. This suggests a rethinking what campaign finance reform should look like moving forward.

The constitutional framework structuring the role of money in politics was articulated in the Supreme Court’s Buckley v. Valeo, 424 U.S. 1 (1976) decision. In ruling upon the constitutional validity of congressional post-Watergate reforms, the Court declared that while money was not equivalent to speech, its use in politics nonetheless “implicate(s) fundamental First Amendment interests,” such that limits on contributions or expenditures were only permissible if the government could show that contributions either corrupted or lent the appearance of corruption.

While the Court was willing to say that contributions to candidates and other entities met this standard, it did not see how expenditures by candidates, political parties, or other groups did.

In reaching that conclusion, the Court drew upon a famous analogy — the gas tank. Drawing an equivocation between how much money a person or group can spend and how much political speech they have, the Court said in the famous footnote number 18 that:

“Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.”

Money was analogized as political gasoline. This happened at a time when the Court noted the “electorate's increasing dependence on television, radio, and other mass media for news and information.” Money in 1976 in fact might have been correlated with political speech.

But when the Court made this argument, it was in the middle of the television-centric era of American politics, especially at the presidential level. Writers such as David Haven Blake in “Liking Ike: Eisenhower, Advertising, and the Rise of Celebrity Politics,” argued that Dwight Eisenhower’s presidency was the advent of the merger of television and presidential politics, with it perhaps not really starting until 1960 with the Kennedy-Nixon debates or even 1964 with Lyndon Johnson’s famous “Daisy” ad. Television, especially network level, was the place to go for politics, news, and political advertising. It was a limited forum in terms of time and space to run political ads and therefore money was essential to buying and allocating scarce time.

By the time Buckley was decided in 1976 the television-centric era of American politics was in full swing. But already it was being eclipsed by what media scholar Elana Levine labels a post-television or at least a post-network television era with the rise of cable. And then in the late 1990s and 2000s the rise of the Internet and the social media moved America even further beyond the television-centric era.

We know now that network television viewership is down, that Millennials are not watching it, and that candidates, parties, and political organizations are increasingly moving into Facebook, Twitter, and other on-line or cell phone modes of connecting with people.

Buckley thus came near the halfway or high water mark between the rise of the television-centric era of politics and its coming demise. These alternative forms of reaching voters do not suffer the same scarcity problems as network television did. The longer-term cost curves for communicating ideas to voters, or fundraising, is dropping, with candidates such as Bernie Sanders and even Donald Trump showing the changing dependence on money and traditional television. Over time, television will simply be less important to politics.

What does it mean then to be in a post-television era? The assumption that Buckley made in drawing an analogy between money, gasoline, and political speech is less viable now than it was in 1976. One could question whether such an analogy ever made sense back then but soon, at the presidential and perhaps at the state and congressional level, the television-centric world is ending. The central claim, then, that campaign donations implicates First Amendment interests may be less the true today, and rests on unstable grounds.

If the above is true, the core premises of Buckley that provided the framework for the linkage between the First Amendment and money in politics have eroded and the precedent might be overturned, as it is no longer empirically or conceptually valid.

That decoupling of money from the First Amendment does not mean the former is not still important in politics or that it does not influence campaigns and elections. Instead it suggests that if money is no longer connected to free speech in the way it was during the television-centric era, then perhaps it would be possible to regulate it in ways consistent with this new reality.

The Made for Television Campaign: Or why there are so many debates and is anyone listening?

Another day, another Republican presidential debate. Thursday night witnessed another debate–the third in 15 days–among the GOP contenders for president. Yet what did we learn about the candidates from it? Perhaps no more than they are artful at reciting their talking points. The debates revealed no new policy insights, no growth or development in positions, and no breakthroughs in terms of more detail on positions already articulated. The debate was an exercise in carefully delivering choreographed and rehearsed statements that had been pretested and repeated in the past.

Yet the debate leads one to ask why so many debates now, is anyone paying attention, and why has the dialogue and statements by the candidates appeared to have frozen?

Why so many debates so early?

State competition for attention.

The general election for presidential is November 2012–more than fourteen months from now. The real Iowa caucus is in February 2012–approximately five months from now. Why all the debates so soon? The simple answer is money and the expansion of primaries.

Think back to 1960 when Kennedy ran for president. There were very few primaries and the first was in New Hampshire and it generally did not take place until the spring of the election year. Most states then still did party conventions. In an era when few primaries existed one did not really begin running for president until late in the year before the election. More realistically, declarations to run for president took place early in the election year. Primaries and state conventions took place in the spring and ended by June and the general election more or less began around Labor Day. The campaign season was short.

But now nearly every state has a primary or secondarily a caucus. The expansion of democracy with parties to move presidential selection beyond the state convention and let party rank and file select their candidates really begin in the 1970s–especially with Jimmy Carter in 1976. This change has several implications. First, delegate selection at caucuses and primaries has made state parties and events more powerful and important than the national party convention. The latter now are more photo opps or coronations than real events to select presidential candidates. The power to select presidential candidates thus has shifted to the state level.

Second, the explosion of primaries and conventions requires space and time. There needs to be time and space on the calendar to hold all the caucuses and primaries Presidential candidates need time to reach voters in those states. They need to campaign in those states. Moreover, each state wants to be influential–it wants candidates to come to their state to campaign and it wants their state to be the one that has a real say in who the next president will be. States thus compete for presidential selection influence with one another. This has gradually pushed out the primary and convention season and led to state parties coming up with crafting ways to expand influence–straw polls and early primaries for example. Each event thus takes on special importance, especially when it is early–as each of these events come to be seen as significant or an early clue about viability. Moreover, parties use events such as straw polls and debates to bring attention to themselves, and also as fund raising tools.

But unlike with a convention where presidential candidates only needed to reach a small number of delegates, primaries and caucuses require them to potentially reach thousands or millions of voters in a state. The only way that is possible is via the mass media-television. Thus state campaigns are not simply personal appearances and speeches to ask for votes–they are media campaigns too reaching out to potential voters. All this requires money.

Thus, the campaign season is longer to accommodate competition among states to gain an edge in presidential selection in an era where national conventions mean little and state primaries and caucuses have each become mini-presidential campaigns requiring money and media exposure. Thus, each state wants to run a debate or do a straw pool as early as possible to maximize influence.

But what do we learn?

Little.

Debates are scripted with talking points that are poll-tested and focus-grouped researched. Watch several debates and one will hear Bachmann repeat for the umteenth time: “I will not rest until we repeal Obamacare.” Why repeated so much without elaboration or development? These are talking points geared to the way we consume news.

In 2004 I watched the debates between Bush and Kerry. Every 30 minutes they repeated their lines and statements already stated the previous hour. Why? They understand the concept of the 30 minute tv cycle. People tun in and out on a 30 minute cycle. We are conditioned to view tv in the 30 minute sit-com chunk. Repeat your lines for each half hour time slot and you maximize your messaging.

Now combine that with candidates having test marketed their comments to reach specific audiences. The two together mean candidates repeat the same statements frequently in the same debate. They also now do the same in multiple debates.

Even worse. With so many debates candidates come to know what they will say, what their opponents will say, and what they should say, all based on audience reaction. Debates seemed seem scripted like plays and the lines actors rehearse in them. There seems to be minimal incentive to change your script unless it is not working for you, but that is hard for candidates to do. Think about Pawlenty’s inability to do this.

Finally, why are they televised? They rise of cable news and the 24/7 news cycle means airspace to fill. Debates are easy and cheap filler. Broadcast the debate, do a post debate analysis, and this keeps your analysts busy and audience and advertisers happy.

Are voters listening?

Doubtful.

Most voters are not listening because nothing new is said. Each debate repeats the same lines from a previous debate. It is like watching the same movie several times. It gets stale.

What does all this suggest? The debates are saying little and Nielsen ratings probably confirm little viewership. They are scripted events that feed on themselves, producing little debate and serving little more than advertising events for candidates and state parties .

Moreover, it is only September 2011–13 months before the election. Most voters are zoned out, thinking more about other things–such as their kids, holding a job, and making sure they can pay their bills. None of these debates seem to offer any ideas on how to address these problems.