Campaigns and Money

In view of the Swift Boats Vets and 527 group controversies there is clearly an immediate need to reopen discussions about campaign finance and reform. It was, after all, the McCain-Feingold bill that has created the current environment for political advertising. President Bush has started to make some noise about filing a suit against the FEC and supporting further legislation, both in the interest of regulating the 527 groups. This seems a laudable objective, although the details aren't yet clear, and Bush's lofty rhetoric often belies less than lofty actions. There are a couple of noteworthy columns I've read recently on this issue. The first is a Washington Post column by R.J. Samuelson asserting that in general, campaign reform laws are a First Amendment breach, and that in particular, the current regulations are broken and silly in addition to restricting free speech. The second is a column in the Christian Science Monitor by reformer Derek Cressman arguing that there is a difference between free speech and paid speech. Of the two, I come down more nearly on the side of Cressman.

I think it is important on this issue to fall back to fundamentals and intents. Primarily, what is the purpose of free speech and why is it so prominently enshrined in our government's structure? There is the potential for a sticky conflict between those who hold rights such as free speech to be moral imperatives and pragmatists who see it as a critical element of a functional deliberative democracy. For the latter group, of whom I would count myself one, the issues are more straightforward. For the former it's complicated, but my intuition is that you end up in the same place eventually.

It seems clear to me that any meaningful right to free speech has to extend beyond the simple definition of being able to make noise without restriction. If we put five people in a small room to discuss an issue, but one of them has a bullhorn and shouts into it incessantly, the free speech of the others is not being restricted, but nor is it doing them any good. If free speech is intended to produce healthy discourse and deliberation, this approach to it, which as Samuelson accurately points out seems to be in keeping with the First Amendment such as it's written, fails to meet its objective.

In our campaign environment big money advertising is the bullhorn. People, candidates, and organizations with piles of money effectively can shout out those without. Interpreting free speech to mean that no regulation whatsoever should effect parties' speech does not seem to me to be accomplishing the desired effect. Further complicating the issue is the connection of the flow of this money with access and influence, creating the "appearance of corruption" remarked on by the Supreme Court in their McCain-Feingold ruling. Not only does money in politics act in a manner that negatively impacts on democratic deliberation, but it does so in the interest of giving disproportional political influence to those people who foot the bill. It's a double-whammy that I think clearly demands action from the government.

Regulation on this issue is clearly difficult and problematic. It is unlikely that we can create (and certainly questionable whether it would be desirable to create) a situation where everyone's voice is heard in exactly equal proportions. In many ways allowing people to aggregate their opinions through political parties and organizations is desirable, and clearly this implies that these parties and organizations will, or ought to, have a greater voice than individuals. This does not seem necessarily undemocratic or against the ideals of free speech. The current situation, however, gives the power of influence to these parties and organizations not in proportion to the number of people who support them, but rather by how much money those people have to contribute. That is problematic. This suggests some basic guidelines (ie that people ought to be more important than money), but still leaves the issue difficult to formulate. In some regards regulations will have to be somewhat arbitrary, and no doubt will give rise to certain situations that strike people as odd, as Samuelson protests in his column. I think it should be noted that these things will happen, but that they don't invalidate the importance of the cause nor indicate that we shouldn't make our best effort to address the problem.

Before closing, I want to raise one other angle from which this issue should be considered. That is marketing, TV marketing in particular. Marketing has developed into a science, a soft science to be sure, but it is a huge industry with reams of research data, including no small amount of psychological and behavioral study. The entire point of the exercise is to translate money into actions taken by people who would not have otherwise taken those actions. And they are very good at it. Good enough that the US annual ad revenue is in the neighborhood of $200 billion. Furthermore, while I haven't the time nor data on hand to make this case, I am willing to assert that much of their success comes not from logically reasoning with their audience, but through manipulation of emotional responses. This does not represent, to me, a good means through which to hold democratic deliberations. Inasmuch as campaign regulation is regulating television advertising, I think the bar ought to be lowered as to what is allowed in terms of regulating speech.

In essence, not all speech is equal in terms of its value in promoting discussion and a thoughful exchange of ideas and positions. Some speech, in fact, runs counter to those objectives. If this type of speech becomes the dominant form of political discourse, it stands to reason that it poses a threat to a form of government that relies upon healthy discussion, and presents a danger which must be addressed. In a conflict between a strictly literal interpretation of free speech and democratic principles, I find myself on the democratic side. It stands to reason that if democracy collapses, free speech will follow not far behind, and in fighting for the purist free speech position, you stand to lose both speech and democracy. It has already been demonstrated that free speech can be regulated for the purposes of public safety and the promotion of artistic and scientific interests without complete abridgement of speech rights, and I don't see why an equitable system cannot be worked out to also promote the social goal of healthy democratic discourse.