a couple of quick responses

I am now substantially de-jetlagged!  Let’s get this published quickly, then deal with the chaos of my inbox.

Matt was nice enough to respond; if you haven’t already seen it, you should go read it. A few quick things, presented in bullet form because I think trying to write narrative transitions often gets me in trouble:

  • Matt’s right that broadcast spending matters most at the top, of course.  I would suggest, though, that this affects many if not all other levels of office, as politicians feel obligated to give to one another in order to reify and ascend their parties’ hierarchies.
  • When discussing broadcast media, I really meant to do so in the context of independent expenditures.  It was foolish of me to link to the Obama campaign’s spending breakdown — that gesture, intended to convey the staggering scale of communications costs, mostly just confused the issue.  The point I wanted to make was that restricting speech that affects a race but which is made by an entity other than one of the candidates’ campaigns is thorny, but perhaps not as thorny as we pretend: the mediums of expression that are most relevant to this problem aren’t, shouldn’t and never will be places were we can guarantee perfectly free speech.
  • Still, I admit I probably emphasized broadcast more than it deserved simply because it was rhetorically convenient for me.  I don’t know if there are SuperPACs paying for (non-coordinated!) GOTV efforts — I suspect that campaigns wouldn’t like that idea, but who knows. But I’m sure that plenty of them are paying for direct mail, which is immune to the critiques I leveled at broadcast media. And I’ve read some decently compelling evidence that campaign professionals consider broadcast media and direct mail to be substitutable.
  • As for spending by campaigns themselves: I suppose I’d personally be open to the idea of providing a floor of support for candidates, but I wonder how much of a difference it’d make.  It would be silly to extend the analogy very far, but in some other culturally important areas, revenue sharing sure seems less helpful at generating healthy competition than salary caps have been.  Besides which, it seems like more robust electoral competition is something you’d pursue to make elected officials more representative of the electorate’s views.  To the extent that this is a problem at all, my impression is that institutional structure is the bigger culprit.
  • I’ve heard various political science professors endorse variations of “the more politics the better!” but this has always struck me as pretty silly — either a manifestation of a fairly pathetic urge to be counted the most cynical, counterintuitive and therefore sophisticated guy in the room; or an overextension of the term “politics” to encompass every aspect of every democratic system for reconciling conflicting claims, to the extent that the term loses much of its meaning.

Maybe this is horribly consequentialist, but for me it really comes down to this: for several reasons it strikes me as deeply unwise to put our working legislators on a constant fundraising treadmill (particularly given our legislative institutions’ other tendencies toward self-lobotimization). Yet that’s where we’ve found ourselves.  Efforts to untangle this problem quickly run afoul of speech rights.  But the speech rights in question almost invariably belong to people who wield incredible financial, social and political power.  What’s more, the rights in question tend to be concerned with the amplification of those individuals’ speech in forums that are not and will never be available to most people, rather than rights associated with getting one’s message across some threshold of discoverability.

My principled friends will be aghast, but the idea of trampling on that particular subset of super-speech rights bothers me basically not at all.  Sure, I would prefer a solution to this dilemma that arrives in a neatly-packaged, internally consistent collection of philosophical and legal thought.  But if I can’t have that, I will be content with something that wades through the pragmatically-minded muck along with much of the rest of our system.

(For the record, I would be happy to support a compromise that allows unlimited political contributions in support of speech that takes the form of blimps)

some probably dumb thoughts about the tenability of campaign finance laws

There’s no way to write this post without seeming like I’m just being a shill for my employer. And yet, as I write it, I need to be careful to point out that I am not speaking on behalf of my employer, and could easily get myself in trouble for posting it. Really, this is all downside for me.

But in the last week a couple of friends have written posts that begin, more or less, with “Given that campaign finance legislation is fundamentally incompatible with the first amendment…” And look, yes, I know that this is, if not the legal status quo, then at least what awaits us at the bottom of the legal slip and slide that our juridical institutions are gleefully hurtling down. But let me be the lame parent worrying about what all this water will do to the lawn: I still don’t buy that money is speech.

It’s probably necessary to look at this from a couple of angles. First, there’s the case in which money is given to someone else in order to support that candidate or cause’s speech. Our campaign finance laws remain relatively strong in this area, and understandably so: if it’s not my speech, my speech rights aren’t (as) relevant. Handing you a pen is not speech; neither is handing you a dollar to buy a pen.

The situation is admittedly more difficult in cases where we’re talking about restricting individuals’ ability to spend on their own expressions when those expressions benefit particular candidates or political outcomes. In a theoretical sense, I get it. It’s an intractable problem. That pen might amount to a precondition to self-expression for you, making it, from a practical perspective, indistinguishable from the act of expression itself. If we can’t summon the political will to guarantee everyone access to pens, we can sure as hell not start drafting pen-control laws and asking Staples cashiers to enforce them (in the case of the FEC, this is a generous metaphorical comparison).

I love philosophical abstractions as much as the next guy, but let’s get real: most types of communication are cheap. This is about broadcast media. The money-in-politics discussion is about domination of a small number of more-or-less zero-sum distribution channels, most of which are subject to physical constraints that necessitate a high level of regulation. Your freedom to speak within these channels is already severely limited in both a legal and practical sense.

I think we ought to distinguish between advertising and speech. I think everyone’s got a right to express what they believe and to see if it can convince others. I don’t think the right to force your message in front of others’ eyeballs is nearly so sacrosanct. It used to be pretty difficult to disentangle these two things, but every hour we spend marching deeper into the digital age makes the distinction clearer.

Or so it seems to me, anyway. I’m not claiming that our existing set of campaign finance laws is coherent; I’m not claiming that engineering a legally defensible alternative would be easy (though I have some ideas, many of them admittedly involving a jackboot on the throat of television ad sales executives). But I do think that the conversation about money’s role in politics needs to be tied more closely to a conversation about broadcast media’s role in politics. Personally, I think the latter is both a huge waste of resources and a wellspring of perverse incentives for politicians and the electorate. And I don’t think it deserves to hide within the aegis of rights that we quite correctly treat with reverence.