Expert: Michael Troy - 11/21/2004

Question
I have forwarded the below response to op ed columnist Nick Kristof to a large number of people. Many have raised the question whether the Congress can restrict the right of candidates to run advertising. It is my opinion that if there is alternative forum made available on television, radio and in the press that such a restriction would not be unconstitutional. What is your thought?

(Below is my reply to Nicholas Kristof's op ed piece in the NYT called No More Sham Elections)


Nick,

Interesting ideas to reform our electoral system.

Unfortunately, they miss the bullseye.

Why are races in the US often non-competitive? Why are such a high % of congressional incumbents re-elected?

MONEY.

How does money affect the outcome?

Two ways.

1) Modern elections are driven by television commericials which require huge outlays of funds. (In the last presidential election some 2/3 of campaign funds went into television commericials.).   

2) Sources of funds derive disproportional influence over the working of government.To reduce the risk of contributions, smart contributors invest their money in winners (ie incumbents).  This will never change. Even if you could significantly reduce the amount of money that campaigns need, they will still need money. Those who supply the money will still have influence.

In business venture capitalists expect a huge piece of the business in exchange for their investment. The riskier the venture the higher the portion of the profits they expect to receive. Is it really any different in politics?

I don't believe you will ever be able to eliminate the influence that money has in a campaign without making all funding for elections public funding.

However, I do believe you can significantly reduce the costs of elections. If you can reduce the costs of elections, less money would be required to run a campaign and campaigns should becomre more competitive.

How do we significantly reduce the costs of elections?

NO CANDIDATE CAN RUN ANY TELEVISION COMMERCIALS.

Why no commercials?

We know that commercials distort reality. Factcheck.org is the most compelling evidence even presented in the court of public opinion about the fun house effect of commercials on a campaign. In order to put one 30 second commericial in context, factcheck often requires you to read a page or two of additional information which than links you to many additional pages of source material. Often factcheck concludes that the commercials distort the truth.

Even when the media is responsible enough to point out the distortions, they do it one time for each commercial. A commercial may be run for days or weeks without the medias clarification. By the time an opponent runs enough commercials to reply to one commerical filled with distortions, the other side can run another commerial filled with distortions and so on.

In the last election, we also learned how out of sync the impression made by commercials is with reality.

Until the debates, the presidential campaign was driven by television commercials and staged campaign events by both sides. Before the debates the public had the impression from the canned events and especially from the commericals that Bush was resolute and Kerry was a flip flopper. The debates forced the public to completely reevaluate their positions and the polls reflected this reevaluation. Had the elections been held right after the debates the results may have been different.

If we eliminate television commericials how than can we learn about the candidates and compare them?

The media will be required to set aside air time and space in newspapers as forums for the candidates. These forums will give all candidates (hopefully there will be more than two viable parties) an opportunity to share their views on all the issues that must be addressed by the candidate if they are elected.(Unfortunately, in the last election there were too many critical issues that were never discussed at all)

By replacing commericals with public forums the cost of campaigns will not only be significantly reduced but the level of discourse will be significantly increased.

Would this change be strongly resisted by the media?

Absolutely, they have a strong economic interest in keeping things as they are but they should a have a more compelling interest in a functional democracy. The media managed to find new sources of revenue when it stopped running commercials for cigaretts and alcohol and when the internet bubble collapsed. The media will find sources of revenue to replace campaign commercials. In addition, the airtime and space made available to the campaigns for the public forums will have to be paid for by the political parties or by government funding.

Finally, we should reduce the period that a candidate can campaign to 60 days. this again will have the effect of significantly reducing the costs of campaigns.

Marc Pachtman  

Answer
Hi Marc,

Sorry, but I disagree 100%.  The First Amendment is specifically designed to prevent the government from preventing anyone, including candidates, from censoring political opinions and other expressions.  The fact that many advertisements distort the debate is irrelevant to the fact that the goverment must stay out of the business of preventing certain forms of expression.  Preventing candidates from using one of the most direct and immediate forms of expression (television) would be completely unjustified since the Supreme Court has held repeatedly that government has no authority to limit debates for purposes of "fairness" or deciding what speech is good or bad.

Even if there was no First Amendment, I would still argue there are many policy reasons for restricting campaigning.  First, think back about 50 years to the way campaigns worked before TV and radio became universally popular.  Politicians were usually chosen by political machines that turned out voters to vote for whomever the precinct captaim told them.  Most voters new almost nothing about the candidates and party bosses controlled the strings.  I think today's system of direct communication, despite the flaws, is much better.

Even in today's system, the most distorted campaign materials are not TV ads, they are misleading or outright lies in flyers, e-mails, and other targetted ads that try to fly underneath the media's radar.

I also disagree that you will ever be able to get contributers out of politics.  The Federal Goverment spends over $2 Trillion every year.  Billion dollar projects are quite common.  Even beyond direct spending, tax and regulatory rules can mean billions of dollars in profits or losses for big companies.  Of course those companies are going to do everything possible to get their way.  If they can't contribute directly to candidates, they are going to funnel money to other sources: lobbyists, "issue" attack ads, or other things to convince others to go their way.  Nothing short of all out censorship is going to prevent it, and even then, the rich and powerful will always have more influence.  For example, say all elections were funded only through government funds and all direct and indirect contributions or independent expenditures were effectively  blocked.  Do you think your Congressman would be more likely to meet with you or the president of a company that employed 10,000 people in his district, who donated millions to area charities, and whose views carried great weight in the local papers?

Also, the idea of restricting elections to 60 days, besides being unconstitutional, would make distortions even more popular since there would be less time to rebut charges.

The reality is that most campaign "reforms" tend to benefit incumbants.  Incumbants are making the rules.  They know they benefit from already being well known and that restricting the amount of speech only prevents their opponents from catching up.

Yes, elections are a mess.  But more government regulations will make things worse, not better.

- Mike