Freedom to Deluge

I think it’s fair to say that most people would find it disgusting to learn that political spending by a small cabal of big donors play a decisive role in elections in this country, especially if those donors are from outside the region they affect. Somehow, that doesn’t seem democratic. In fact, the Supreme Court has established a pithy principle to encapsulate this: one person one vote. Yet they also decided that groups can spend unlimited money on advertising, as long as they don’t “coordinate” with campaigns. In the (in)famous Citizens United case, they ruled that this is allowed under the First Amendment. Furthermore, it is possible for donations to political groups to remain undisclosed.

I don’t think the people who were responsible for the First Amendment would have been able to imagine how mass (political) communication works today. Sure, they had political tracts, but it wasn’t like you could throw down a wad of cash, and suddenly be able to reach millions of people in their living rooms the way you can today thanks primarily to TV. One key difference is that most individuals don’t have the resources to buy vast amounts of TV ads the way a single rich person can. Sure, non-rich people can pool their resources, but they face much bigger hurdles in organizing and getting out their message compared to the rich. Yet their comparative difficulty in making “speech” has nothing to do with the merit of the content. The problem that they face is that organizing many people is inherently more difficult than making an individual decision.

Another key difference is that it’s much harder to ignore an unwanted TV ad compared to an unwanted political tract. Think about the impunity with which you ignore a street peddler handing out flyers (walk past, try not to make eye contact), junk mail (straight to trash), or even a possessed person yelling on a street corner (take a different route, or call the police if he starts assaulting people). Now, compare that to how difficult it is to divert your attention away from an unwanted TV ad. The only effective ways I can think of to do that are 1) Only watch PBS 2) use a DVR. Both of these things work by making sure you don’t see any ads at all, not just the ones you don’t like.

I think that the primary function of free speech in a democracy is that it gets all the ideas out into the “marketplace of ideas”. People then rally behind the ideas that they like best, and an election is held to officially determine which ideas win. A fundamental, yet implicit assumption that underlies the proper functioning of the idea marketplace is that “vendors” compete on a level playing field. The problem with the vast amounts of shadow money in our political system is that the field is very much tilted in favor of the rich, and corporations. I don’t think anyone is saying that the rich should not have their say. The problem is that they have much more say than everybody else regardless of what they actually have to say.

If you don’t have a problem with that, you probably believe that having more money gives a person a right to have more say. Well, if that’s the case, then the whole notion of corruption is vacuous. If I manage to buy a politician, then that’s just me exercising the right that I’ve earned from having lots of money. If that’s what you believe, then I think you’ll find that a huge majority of people disagree with you. This also runs contrary to the principle I mentioned earlier: one person, one vote. The Court did not say, one dollar one vote. If the rich can drown out the rest of us simply by spending lots of money, how is free speech being protected?

The solution is to have limits, and disclosure. For the sake of discussion, let’s say the limit is $50k (inflation adjusted). Up to that amount, you can do whatever you like, and nobody has to know about it. After that, any ad that is paid for in part with your dollars must be traceable back to you. Supporters of Citizens United would claim that this impinges on people’s freedom of speech. What it really does is ensure that the voices of ordinary individuals cannot be drowned out by a few rich folks. This idea doesn’t even limit how much one can spend. It just holds big spenders accountable.

If that cannot be done, another solution would be to require ads to disclose that they are funded with untraceable money. That way, people can take that into account when evaluating an ad. Without such disclosure, people assume that advertisers are accountable for the content of their ads. This would not be unprecedented: when a campaign puts out an ad, it must include “I am ${candidate}, and I approve this message”. I remember when that became a requirement. It was added, because candidates were denying responsibility for bad ads. It was refreshing to hear that phrase during the next election cycle. Another precedent is laws that we have against false commercial advertising. Again, this would not stop free speech. It simply sets a standard for accountability, one that’s pretty easy to meet, too easy if you ask me.

This post was inspired by a recent episode of Frontline, Big Sky, Big Money.

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