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.