As Senator Mark Hanna said in 1895: "There are two things that are important in politics. The first is money and I can't remember what the second one is." The need to raise vast sums of money from special interests drives the behavior of elected officials in many ways, most of them bad for civility and public policy. Here, for example, is a list of the "heavy hitters," the biggest donors to congressional campaigns, according to FEC records.
In this TEDtalk Lawrence Lessing notes that big funders representing a mere .05% of the population are able to determine the pool of possible candidates in federal elections. According to Lessig we are no longer living in a democracy that's truly representative. His solution is to institute small donor funding. But even if such a feat could be achieved it's far from clear that it would ameliorate the hyperpartisan divide that fuels so much incivility and bad faith.
If we’re trying to find examples of civil political discourse, election campaigns probably wouldn’t be the first place we’d think to look. Campaigns are, after all, fundamentally adversarial in nature. And American political history is littered with invective to show it. Bringing the mudslinging of the past into a modern form, these parody ads suggest that the election of 1800, at least, was hardly a paragon of civility! But modern communication brings attack politics to the masses with greater personal immediacy, and on a vast scale.
Negative ads are not entirely negative, of course. On the most basic level, the fact is that they work. They tap into a more general psychological finding that bad is often stronger than good, as people pay more attention to negative information (this is known as negativity bias). Moreover, political scientists have found that negative ads can help to mobilize voters. This may be bad for some candidates, but greater participation is an important democratic value. Nonetheless, negative advertising also breeds cynicism, lower feelings of citizen efficacy, and diminishes public trust in government, thus putting broader democratic values at risk.
So how do we go about addressing these concerns? Many people point to campaign finance regulation. Television advertising, of course, is expensive, and so restricting money in elections is seen as a way to control some of the ill-effects of negative advertising — helping to cut it off at the source. The emergence of SuperPACs in the wake of the 2010 Citizens United decision, and their heavy spending on negative advertising, has also increased scrutiny of campaign finance law in this regard. Considering the four main SuperPACs supporting remaining GOP candidates, for example, approximately 77% of their ads have been negative. But as a means of communicating with voters, money spent on advertising is viewed as constitutionally protected speech. Altering this situation through campaign finance reform alone is thus far from straightforward.
The Legal Context
Campaign finance laws can certainly shape the nature and extent of public discourse, with the SuperPAC example only the latest example of this.
Setting disclosure requirements aside for the moment, the campaign finance regime is, at its heart, a series of tradeoffs for political actors – between the amount of money you can raise and spend, how explicitly your communications can advocate for or against a candidate, and how much you can coordinate that activity with a candidate or party. In essence, the less you coordinate, the less restricted your fundraising and spending, and the more you can advocate.
This configuration emerged out of a 1976 Supreme Court decision. Examining major campaign finance reforms passed in the early 1970s which placed caps on contributions to campaigns but also various types of spending, the Court ruled that spending made “independently” of a candidate or party (i.e. not coordinated with them) could not be regulated (on grounds of free speech) – either in terms of the amounts raised/spent or the nature of communications funded. Thus individuals and unincorporated associations were free to make “independent expenditures” in campaigns, but corporations and labor unions were still restricted in this regard – due to a separate prohibition on their political activities contained elsewhere in the law. Citizens United basically removed that prohibition – corporations and labor unions can now make independent expenditures (though they are still restricted in other ways, such as being unable to make direct donations to candidates). SuperPACs emerged from subsequent court and FEC decisions that extended this reasoning – if an individual corporation can make independent expenditures, then they can also get together to do the same.
So how does this affect political discourse?
The concerns raised by independent expenditures are made more concrete when we think about electoral spending by “outside groups.” When spending isn’t coming from the candidate’s campaign or the party – actors we can readily identify and whose contributors are strictly regulated – two main questions emerge: who is doing the spending? And who is responsible for it? These generate interrelated concerns about accountability and anonymity – both of which can lead to greater negativity in political discourse.
Accountability: When questioned about SuperPAC attacks ads during the South Carolina Republican primary debate, for example, Mitt Romney responded, “the Super PACs run ads, and if they ever run an ad or say something that’s not accurate, I hope that they either take off the ad or make it correct.” But due to the legal prohibition on coordination, Romney can have no active role in ensuring this happens. And this lack of control – and lack of accountability – can also affect the tone of campaigns. While the ads aired by the four main candidate SuperPACs are about 77% negative, as noted above, about 54% of those aired by the candidate campaigns themselves are negative.
This difference raises an important concern about SuperPACs, or other “outside groups” like 527s, 501(c) organizations, or unincorporated associations – that they might make accusations and attacks that candidates would not be willing to make themselves. In the current GOP primary contest, for example, Newt Gingrich, may have benefited from a film critiquing Romney’s career at Bain Capital, even as he called for the film to be edited.
A congressional committee chaired by Fred Thompson investigating campaign finance in 1997 came to just this conclusion – considering an earlier wave of advertising. And despite requirements in the Bipartisan Campaign Reform Act of 2002 (BCRA) that candidates appear in – and take direct responsibility for – their own ads, we don’t seem any further along as regards outside groups.
Anonymity: A second concern relates anonymity – who is doing the spending. On one level, outside groups are often given universalist, patriotic names that make it hard to identify the interests or individuals that may be involved – even when the group itself is identified in an ad. A particular concern with SuperPACs, moreover, is that it can be impossible to identify some of the individual donors at all.
Like regular PACs, SuperPACs do have to report to the FEC, but because Citizens United also freed non-profit corporations – like the Chamber of Commerce – to engage in unlimited independent expenditures, and because such entities only face minimal disclosure regulation from the IRS, it is possible to funnel money into SuperPACs without having to disclose the identity of original donor. We all know that people are more willing to be critical of someone else, if they think it won’t be traced back to them. Indeed, anonymity has even been linked to aggression in lab studies. Unsurprisingly then, the kinds of organizational and individual anonymity we see in SuperPACs can lead to less civil discourse
Some of these concerns could be mitigated by more stringent disclosure provisions. The DISCLOSE act, for example, can help individuals to trace where money is coming from, and thus hold people more accountable for the incivility they may create. In addition, work by the Sunlight Foundation has the potential for reducing incivility by increasing the transparency of political actors.
But it’s harder to turn the clock back on some of the organizational developments. As political scientist Ray La Raja has recently argued, by placing restrictions on candidate campaigns and, especially, political party organizations – campaign finance laws have actually encouraged the growth of outside groups – groups which are then difficult to control without running afoul of free speech protections. He suggests substantially increasing the limits on contributions to parties and candidate campaigns so as to concentrate more activity within these “inside” groups. And it’s almost impossible to place restrictions on the nature of speech, as opposed to limiting its extent – so it’s difficult to legislate our way out of the problem of negative advertising.
This means that individual efforts to alter the way we think about, and speak about, political opponents are incredibly important. And by improving how we talk about people in campaigns – the arena in which incivility is most likely to occur – such efforts can have a positive impact across the political system.
–Rick Hansen's Election Law Blog
Much of the content on this page was compiled by Emily J. Charnock and this page is currently edited by Ravi Iyer. Editors who can provide better analysis of the many reforms that have been proposed or implemented are welcomed. Which ones reduce the influence of special interests? Which ones lead to more incivility?