By Daniel Payne
Thursday, May 12, 2016
Since early 2010, the litmus test for holding office as a
Democrat has turned in no small part on opposing Citizens United v. FEC. It is difficult to overstate how strongly
liberals oppose Citizens United, and
indeed it is a chief plank for each of the two candidates for the Democratic
nomination for president. Bernie Sanders has vowed to overturn it; Hillary
Clinton has done the same. Since the only practical political path to
overturning Citizens United would be
to pass a constitutional amendment rewriting the First Amendment, this is
mostly bluster. But it is telling bluster.
Citizens United,
of course, is the Supreme Court decision that struck down limits on independent
political expenditures by corporations and unions. Citizens United is basic First Amendment stuff, free speech 101: as
Justice Anthony Kennedy’s majority opinion points out, while government is
perfectly within its established rights to govern speech with disclosure and
disclaimer regulations, “it may not suppress that speech altogether.” Of course
it may not: liberating free speech from government suppression is one of the
animating principles of the First Amendment.
Democrats see it differently: in their eyes, unlimited
political expenditures, even from parties independent of the candidates for
whom they advocate, run the risk of corrupting our politics. Many liberals seem
confused about the decision itself, thinking that Citizens United removed limits on donations directly to campaigns. It did not. But in either case, there is
great anxiety that the Supreme Court decision has paved the way for rich
individuals and corporations to “buy elections.”
(Whom has Sanders accused of trying to buy elections?
“Billionaires,” “Wealthy families,” “The very wealthy,” “The Koch Brothers,”
“the rich,” “one family,” “people.” One worries there aren’t enough elections
to go around!)
Money Can’t Buy Me
Votes, Yeah
All of this makes for great political theater, but it
doesn’t actually appear to be, well, true. There seems to be no correlation
between the amount of independent expenditures in support of a candidate and
that candidate’s ultimate success in any given primary or election. If that
were the case, then you would expect that the candidate with the most PAC
dollars backing him up would win the election—and that doesn’t always happen.
Consider the 2012 election. During that cycle—the first
presidential election after Citizens
United was decided—political action committees backing Mitt Romney outspent
those backing Barack Obama by more than double: Romney-allied SuperPACs spent a
little more than $140 million, while those supporting Obama spent just over $70
million. We all remember how 2012 ended: with Obama the victor.
Even intra-party, more PAC money does not necessarily
equal victory. In the same election, SuperPACs in favor of Rick Perry spent a
little over $4 million, while those supporting Ron Paul spent just under
$170,000—yet Paul got more than double the number of votes for Perry at that
year’s Iowa caucuses, and Paul would stay in the race for five more months,
while Perry dropped out in shortly after Iowa.
Can “billionaires” “buy elections” under Citizens United? Do Super PACs
invariably give candidates unfair advantages? It sure doesn’t seem that way, or
Romney would currently be finishing up his first term, and Perry wouldn’t have
had to bow out before wacky old grandpa Paul. Indeed, in the midst of the 2012
race the Wall Street Journal admitted
Super PACs weren’t having much of an effect; after the election, the Los Angeles Times admitted Super PACs
hadn’t done much to influence the outcome.
But Maybe
Mega-Millions Can
But if Super PACs can’t unduly influence elections—if
it’s all just a fever dream in Bernie Sanders’s head—that doesn’t mean our
electoral process can’t be wildly skewed due to certain types of campaign
expenditures. Donald Trump has proven this hand over fist. How? Because of his
overwhelming advantage with “earned media,” or news and commentary coverage
focusing on his campaign. During this election season, Trump has received a staggering
nearly $2 billion in free media.
Perhaps the most astonishing part of the 2016 campaign
season has been the attention the media have lavished on Trump. There seems to
be nothing involving Trump that the media will not cover. In January, for
instance, CNN aired his veteran’s charity event in its entirety opposite the
GOP debates on the same night; in both October and April People magazine ran full-length cover stories on Trump’s family and
his candidacy. Trump has clearly benefitted enormously from the free media:
with virtually the entire Republican establishment against him (give or take a
Chris Christie or two), he still managed to secure the nomination.
It isn’t hard to figure out why. For starters, there is
the sheer volume of Trump’s media
advantage: his almost $2 billion dwarfs the amount of bought media spent by his nearest competitor, Jeb Bush, who shelled
out a mere $82 million before he dropped out. His closest Republican competitor
in the earned media department was Ted Cruz, who received a paltry $313
million; even Hillary Clinton, his presumptive challenger for the presidency,
has received just $746 million in free media, or nearly 150 percent less than
Trump.
The Difference
Between Ads and Infomercials
Then there is the fact that “earned media” is usually
different not merely in degree but in kind
to campaign media. It makes sense from a simple, practical perspective. Much
bought campaign material, for instance, airs during commercial breaks, where
many people will be up using the bathroom or else just tuning out. The same
could be said for online advertisements or radio spots in which people can just
turn the volume down.
But airing Trump during media time slots is different.
It’s ostensibly the news, but in reality it’s an event people tune into specifically to watch. Broadcasting a Trump
campaign rally or a rambling Trump press conference draws people who are
interested in seeing an extended look at what this controversial political
firebrand is up to. This means people will likely pay more attention to a Trump
broadcast feature than they would a Cruz TV spot.
The media networks and outlets know this, which is why
they handed Trump nearly $2 billion in free coverage: it gets the ratings up
and the magazines off the racks and the clicks on the websites. Trump knows it,
which is why he continually topped himself in craziness throughout the
campaign. The cameras would turn to him, the people would watch, and Trump
wouldn’t have to spend a dime. It worked. Trump is the GOP’s presumptive
nominee for president.
Take Note, Kids
What are the lessons to be learned here? There are two.
The first is this: Trump is probably a far weaker candidate than anyone, even
Trump himself, realizes. Without the sustained media blitz, he likely would
have flamed out last year and faded into irrelevance. Now, as a general
election candidate, the media—the members of which are overwhelmingly liberal—may
turn on him. He may lose the free coverage, or the coverage may turn hostile
and unwelcoming, at which point he will be without what was likely the key
factor in his success over the past year: no-charge, friendly media.
The second lesson is this: the Democrats are wrong. Citizens United did not unleash an army
of election-buying billionaires on the country. Independent campaign
expenditures may in fact have no ironclad effect on elections, and there is
little to worry about from the Koch brothers or “billionaires.” But the media
are a different story: as this election has proven, they can radically
influence the direction a campaign can take, elevating a shoddy, unlikable,
half-bright candidate above a field of immense talent, and all at their own
expense.
This means if Democrats actually believe all the things
they’re constantly saying about “buying elections,” they would more sensibly
start trying to regulate the media,
which recently discovered it has powers no Super PAC could ever dream of: the
power to make Donald J. Trump a viable candidate for president. Instead, laws
they championed that sought to restrict PAC activities specifically excluded
the media.
Perhaps liberals could dream up some kind of regulation
to fix this problem: an expenditure cap for political coverage, say, which
media outlets could not exceed. Or perhaps Congress can ban television stations
from covering campaign events. We don’t want media outlets “buying” elections,
do we?
Of course, to propose these kinds of regulations would be
to propose flagrant censorship that would go against the text and settled
jurisprudence of the First Amendment. No sensible person would want such a
thing. Then again, the Left is demanding we apply precisely this kind of
censorship to Super PACs.
So maybe Democrats can stop bloviating about “wealthy
families” and “the rich” and instead just accept that American free speech is
both very broad and exempt from political suppression—that both the media and
independent campaign organizations have the right to report on, and advocate
for, whomever they wish. To propose anything less would be an insult to the
First Amendment, and a path to tyranny.
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