The American Discourse and the Impact of Citizen’s United

A few weeks ago I read a tweet with a link from author Doris Kearns Goodwin’s appearance on the Daily Show. In it she said, “I think if I were young now, the thing I would do more than anything is to fight for an amendment to undo citizens united.”

Goodwin is a Pulitzer Prize winning historian who has written on FDR, Teddy Roosevelt, Lyndon Johnson, the Kennedys and others. About 13 of the 900 or so pages of her book Team of Rivals was turned into the movie Lincoln by Steven Spielberg. She is unquestionably considered one of the foremost American historians of our time. Which means when she talks about great American causes I tend to listen. But what about the Supreme Court’s Citizens United ruling from 2010 has drawn the attention of Kearns and many others as the great risk to democracy of our time? To answer that, you have to do some digging on how we got here and understand where “here” actually is.

Campaign financing regulation actually predates our country. There’s a funny story of how George Washington won an election in the 1750’s to the house of Burgess because he handed out alcohol and food at the poles. It was actually pretty normal at the time. Virginia passed a law shortly after outlawing the practice. By the middle of the 19th Century, America began to pass laws that prohibited politicians from demanding contributions from civil service workers and then appointing them to positions based on the heartiness of their contribution. Hard to imagine it took 75 years or so to figure that out but you have to remember, we were 1st market movers when it comes to world powers and democracy. We had some things to figure out. Around the turn of the 20th century, President Theodore Roosevelt drove legislation that curbed corporate and private participation in the same type of patronage actions. By the middle of the 20thcentury we got around to getting organized unions out of mobilizing their workers to fund campaigns as a prerequisite for membership. So by the 1970’s we had mostly eliminated the affronts to democracy that lesser developed nations still suffer from. From there, it got a little more complicated.

The Federal Election Campaign Act Amendments of 1974 (FECA) formed the basis for much of the current federal campaign laws. It included limits on contributions to federal candidates and political parties, a system for disclosure and voluntary public financing for presidential candidates. The Act tried to impose campaign spending limits but the Supreme Court threw it out 2 years later. It also created a governing body, the Federal Election Committee. So by the 70’s, there were limits on contributions, transparency on those contributions and a governing body to enforce the rules. There were still no limits on campaign spending either by a candidate or corporation for support of a candidate’s party or cause though.

In 2002, the McCain-Feingold Act was signed into law. This act materially accomplished two things. It eliminated “soft money” from party finance. Soft money is a term used for political party general purposes like party building “activities” that weren’t subject to regulation. The second thing that McCain-Feingold did, and this is actually what Citizens United overturned, was eliminate corporate funding of issue advocacy ads; those ads which name an actual candidate within 30 or 60 days of an election. Corporations could still fund ads that advocated for conservative or progressive causes all they wanted through third party groups like the Koch Bros, American’s for Prosperity. But as a corporation or union, you couldn’t “pick your guy” and bank roll him. And though the spirit wasn’t to advocate for a specific group, you could fund groups that said or even called themselves “Hillary is destroying America”. Which happened, regularly and legally. Which means that prior to 2010, corporations and private organizations could and did already contribute massive amounts of money to finance political actions.

So if it didn’t create corporate participation in politics, what did the Supreme Court actually do in 2010? Well it can get complicated but, materially, it did two specific things. It removed the ban on independently funded adds 30-60 days before an election and opened up direct funding for corporations and unions for express advocacy ads. It had some second order effects on the characteristics of the groups that could organize to raise funds for an election but the important part is that it streamlined the process for corporate and union participation in funding. Which has triggered the outcry. But there’s a lot of noise in the outrage, and as a result, there’s a chance to miss the signal in the noise. Because when you look at the data, something doesn’t match up here.

Screen Shot 2015-08-20 at 12.37.49 PM
Federal Campaign Spending

There has been, without question a massive increase in campaign spending since Citizens United in 2010. But if you look closer at the data behind campaign finance, we see it actually predates 2010, substantially. In 1996, we spent about $21 million on federal elections, through regulated channels. By 2004, that amount rose to $340M. That’s a 1500% increase within the cycle of two presidential elections.  But that actually doesn’t tell the full story. If you count the “soft money” explosion that led to McCain-Feingold, spending in the 96 election rose to almost $300M, several times more than any other year. Though McCain Feingold eliminated that “flavor” of spending, it appears that we couldn’t un-ring that dinner bell. By the following presidential election in 2004, outside spending for federal elections had increased 900 percent. That’s 900 percent in four years, six years before Citizens United.

So when you actually look at the path of historical spending above, and also take into consideration that the “soft money” from the mid 90’s isn’t accounted for in that data, we see something very clearly. And it didn’t happen in 2010. Something very different happened about 20 years ago, and the impact has been an explosion in spending on elections. And as big as the increase has been since Citizens United, it’s actually nowhere near the jump we saw between 1996 and 2004. So what happened in 1996? Quite a bit actually.

The day I enrolled at the United States Naval Academy in the summer of 1995, I was issued a computer. That computer was different than all the computers that the Naval Academy had issued in the previous decades to its thousands of students in one very important way. It connected to the internet. At the same time, the digital cable revolution was crossing America increasing the average channels of cable offering from dozens to hundreds. Fox News and MSNBC launched the next summer. So about the time when our campaign spending began to explode, something else was exploding too; the amount and methods for which we began to consume information.

Here’s some data. In 1996, the average American spent about 500 hours watching cable TV a year. By 2010, that number had more than doubled to about 1100 hours a year. We also watched network TV, where “mature” information lives, about 300 hours less. You can also add in 200 hours a year on the internet that didn’t exist at all prior to 1996. And here’s the kicker, according to a study by the mobile measurements and platform company Flurry, you can add another 800 hours a year on smartphones. Which means that we spend more than twice the time consuming information today then we did 20 years ago. Which means one thing. There’s a lot more money to be made off of the American attention span than there used to be. And there’s a lot more competition to get it.

Taking a breath, a calm step backward and an objective look at the data, and we start to see what’s at work here: economics. In order for a market to exist, there has to be demand. Prior to 1996, the demand for information, political or otherwise was relatively small. We had newspapers, magazines and a handful of television channels. Over the past 30 years though, technology has changed that opportunity. And as a result, investment in the media world has also changed. Prior to 1985, corporate investment in media kept pace with the general economy. After 1985, that changed. By 1995, communications industry spending grew at 150% of the pace of the economy. By 2014, growth in media spending had nearly doubled our economic growth rate. And we were off to the races.

If you look at the type of spending that has blown up, it’s what is referred to as independent expenditures. In lay terms, it’s money that comes from somewhere other than the candidates or parties directly like wealthy individuals, corporations or Political Action Committees (PACs). Independent expenditures actually account for over 90% of the increase in spending. And again, it started almost a decade before Citizens United with a 1000% increase from 2000 to 2004. If you pair that finding with the advent of the information consumption age it leads you to one very strong conclusion. Massive amounts of money have flowed into the federal campaign system over the last twenty years for one very good reason. There’s actually something to spend it on that works.

Ask yourself, what in the world would you have been able to spend $1 billion of advertising money on in 1980? How many network TV ads or mailers could you send? How many people could you compel to go knock on doors? Not that many. Which brings us to as close to a smoking gun as you’re going to get for the cause of our massive increase in campaign spending. Which leads us back to the question of Citizens United and what to do about it.

The exercise with McCain Feingold has taught us a fairly valuable lesson. Now that there’s a mature market for profiting off of political expression, efforts to close it down through finance reform serve mostly to change the flavor of money flowing in. We can squeeze the balloon, but unless you pop it, it’s still going to hang around. Which leads us to the next logical question. How do we pop the balloon? Well, we actually can’t. If there is demand, and it is legal, there will be money to invest. Even further, the billion dollars we spent on the election directly in 2012, is merely a fraction of the total media market that is, in some part being fueled by the content of political discourse. Which means that even if we found a way to completely abolish political spending altogether, it wouldn’t put out the fire. The 24-hour news cycle, social media markets and talk radio are a hell of a lot bigger than the $1 billion industry. The six biggest media companies in the country, GE, Viacom, Disney, Newscorp, CBS and Time Warner had just under $280 billion in revenue in 2010. The money being raised for campaign financing isn’t driving our media and how they choose to market and display content. Because it’s not the campaign money that they’re after. It’s our attention.  And as long as we humans are susceptible to focusing on things that affirm our beliefs or outrage us, then the current dialogue isn’t going anywhere and neither is the media market it fuels.

So if it’s not the money, what is the great evil that we’re trying to shout down right now? What is the Doris Kearns Goodwin advocating for in the form of a Constitutional Amendment? Remember, Constitutional Amendments are big deals. They do things like outlaw slavery, grant citizenship, allow women to vote, ban drinking, allow drinking, let us speak freely, have due process, carry assault rifles. When we amend the Constitution, it needs to yield an outcome. Which is why it’s not easy to do. As for the issue of campaign finance, I think we can all agree that there’s something that feels unclean about the combination of large sums of money and the democratic process. But it’s still fairly regulated and we’re not actually accusing anyone of outright fraud of corruption here. So what is the problem? It’s actually a pretty big one and it’s been happening for a few decades.

The problem isn’t that we’re buying our candidates. The problem is that we’re subjugating them, and not with the will of the people as they ought to be.  And the result is the polarization of our two political parties. Over the last 40 years, democrats and republicans have increasingly voted only democratic and only republican more and more. In 1970 if you were in the United States Senate, the majority of a party voted the same way on legislation 27% of the time. Which was good, because when you wanted to get things passed, you had the opportunity to convince reasonable people in both sides of the party to agree. In 2014, the majority of a party voted the same way 70% of the time. Which means, quantitatively we’re 250% more polarized now than we were 40 years ago. Which is a problem. Because it means our politicians used to put a lot more thought and a lot more consideration into their positions

If it’s not campaign financing that they’re afraid of, then what exactly is it that’s driving our politicians to take so few risks? That one’s pretty clear. It’s fear. Fear of a media market that has long since outgrown the need for campaign spending and has since moved on to the more fruitful harvest of outrage, conflict and dissent. If you think that’s an overstatement, consider this. The first Republican Presidential Primary debate in the 2016 election was the highest viewed cable program in the history of cable television. There’s blood in the water now and if you step out of line against the base, someone is going to market the outrage immediately and on an inescapable scale. So you don’t, because you want to keep your job, which unfortunately isn’t the goal of our government. A politician wanting to keep his job isn’t a new phenomenon though. It’s as old as the institution of democracy. What is new, is the scope and scale of the information engine capable of taking it from them.

So do we mobilize and advocate for a Constitutional Amendment as Goodwin said? While it’s likely that eliminating some level of the spending in campaigns won’t hurt, I think it’s also fair to say it won’t solve the problem. There’s a wild fire burning and though the Supreme Court poured gas on it in 2010, it didn’t light the fire. And it’s only a matter of time before that fire doesn’t need the fuel of campaign finance at all and provides us with candidates who draw eyeballs instead of money.

Donald Trump anyone?





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