Outlaw Those Phony Campaign Commercials
Some 15 years ago, former Maryland Sen. Charles Mathias first asked the question, "Why does spending on political campaigns keep going up and up, while voter turnout keeps going down and down?"In the 36-year period between the 1960 and 1996, voter turnout has declined by more than 25 percent nationally--the longest and largest such slide in the nation's history. In 1996--despite an unprecedented level of campaign spending, a net 5 million increase in the number of citizens who were registered, and an previously unequaled level of voter mobilization activities--more than half the eligible population did not vote, the lowest voter turnout since 1924. More than 90 million eligible Americans now eschew the ballot box. First time voters--those aged 18-19--who voted at a 42 percent rate in the 1972 election, voted at a 12 percent rate in 1994. If one counts both the nation's presidential and mid-term elections, the United States now has a lower rate of voter participation than every advanced and most fledgling democracies in the world.Since 1960, the cost of all American political campaigns has increased from $175 million to an estimated $4 billion in 1996. The cost of presidential campaigns alone went from $30 million in 1960 to $700 million in 1996. In constant (inflation adjusted) dollars, the cost of campaigning increased 4.4 times during this period.In the somewhat narrower period of 1976-1994, the average cost of a competitive Senatorial campaign rose from $1,069,523 to $9,639,378. The amount spent on televised political advertising went from $474,910 to $5,681,151. Overall campaign spending (adjusted for inflation) increased by 249 percent. The amount spent on televised advertising grew by 364 percent.It has become incandescently clear that the primary answer to Senator Mathias's question lies in one phenomenon--the increased use of televised political advertising. It is the principal cause of rising campaign costs, and, as will be shown, the drumbeat of attack ads that run every day for two to four months on every major broadcast outlet in America during an election season is a principal cause of the ever lower voter turnout.It is equally clear that American politics will not be restored to a state resembling health--that the cost of campaigns will not go down and the voter participation rates will not go up--until the United States ceases to be the only democracy in the world which does not, by time and/or format, regulate televised political advertising.A COMPELLING NEEDThe case for regulation rests on three basic premises--the extraordinary damage such advertising is doing to the American political system; the fact that no remedy short of regulation can be effective in addressing this problem; and that there are ways to provide such regulation within the framework of the First Amendment to the Constitution, thereby enhancing both free speech and the political process as a whole. How does televised political advertising damage the political system?1. These ads undermine speech and debate: Healthy, vigorous, and even, occasionally, acrimonious debate is central to the vitality of the American political system and the resolution of the issues confronting the nation. But what the citizen is compelled to witness on television every election year is the antithesis of debate. It is music, anonymous voice-overs, actors playing parts, demagogic scene setting, talking animals, candidates faces being morphed into the villain of the moment (Clinton, Gingrich, Richard Allen Davis, etc.), issues without context being scrolled across the screen. These ads are designed precisely to avoid debate, to appeal to the emotions, to present the public with the unanswerable, and to force a choice based on reaction rather than reason.2. These ads erode accountability: Because they seek to avoid debate, these ads are unanswerable except in kind. The classic example is the ad which Sen. Mitch McConnell used to defeat former Sen. Walter D. Huddleston. That ad showed a group of bloodhounds straining at the leash looking for Huddleston, first on Capitol Hill, then going through the woods, and finally finding him on the beach in Acapulco. The image was one of an absentee, junketeering senator-who happened to have a 91 percent attendance record. But rational assertions of that record in both speech and ads could not compete with the emotive effect of the bloodhounds, and Huddleston lost. That message was not lost on political consultants, who learned from it to respond to emotive attack with emotive attack, leading to the escalating arms race of attack ads that now disgraces the American political process every two years.3. These ads drive citizens from the polls: A few years ago, political consultant Robert Shrum said directly what everyone knows--that a primary purpose of televised ads is to depress turnout among certain potential voters, the undecideds and weak partisans of the opposition. When they are responded to in kind, they drive down the turnout of everyone. When the public is confronted with thousands of direct messages that say, "Don't vote for x; don't vote for y; don't vote for z; etc.," eventually they don't vote. Thus, it is not surprising that in their experimental study, Going Negative, scholars Shanto Iyengar and Stephen Ansolabehere found that exposure to these ads can depress turnout as much as 5 percent in any given election; that turnout dropped by 11 percent in 1996; or that turnout has been declining steadily as these ads have increasingly become the staple of the modern campaign.4. These ads offer the citizen no line of defense: They come in 15- and 30-second bites in the midst of programs, eliminating the possibility of clicking them off. With three exceptions-when a candidate like Colorado Gov. Roy Romer makes a point to eschew such ads early in a campaign, when there is an overriding issue (such as a David Duke or Oliver North campaign), or when a campaign ad so egregiously oversteps the bounds of propriety as to cast it beyond the pale-the citizen feels he has no real choice. Each candidate is portrayed as either bad or awful, the political system that is portrayed is one of fools or knaves and the citizen has only two choices, to vote while holding one's nose, or to sit it out. Increasingly, people are opting to vote with their bottoms.5. These ads undermine civility: The 1996, candidates were praised for their civility in debate, although it was ever thus. A group of congresspersons were lauded for organizing a weekend retreat in which they and their colleagues explored how they might more civilly communicate with one another. But three hours every four years of civil debate and a marginal increase in comity on the floors of Congress viewed by the minuscule percentage of Americans who watch C-SPAN, cannot begin to compensate for the hours of savagery on the tube.6. These ads serve to limit access to the political marketplace: Because of the ad-driven escalating costs of campaigns (and, to be fair, the extraordinarily low contribution limits for donors), access to candidacy is limited to a diminishing few who can afford the tab. And that, increasingly, is only those who are millionaires and those with large rolodexes of $250-$1,000 contributors. It is not an accident that the number of millionaires in Congress has more than doubled in recent years.7. These ads are destroying whatever is left of the grassroots of American politics: Nearly 60 percent of the average competitive senatorial campaign's budget is spent on televised advertising. The balance goes to fund-raising (30 percent) and staff and candidate travel (10 percent), leaving no money for activities that involve citizens. Until 1992, some of that gap had been filled by "independent expenditures" (activities conducted independent of campaigns by issue groupings) and "soft money" (unlimited individual and collective contributions to state and local parties), defended on the basis that they aid party development and grassroots activities. But in the last three elections, the overwhelming majority of these moneys have been poured into so-called "generic" and "issue" ads, which differ in virulence from those put on by candidates only by virtue of not advocating a vote for a particular person. There is, in today's politics, only advertising and fundraising-no buttons, bumper-stickers, billboards, phone banks, storefronts, canvasses, precinct organizations, or coffee klatches other than for the purposes of fund-raising. The citizen is both manipulated and left out of the process.8. These ads undermine the political parties: Throughout American history, political parties have been the source of political cohesion, by separating the wheat from the chaff of interest group advocacy, developing leadership, disciplining that leadership for legislative program, and mobilizing the citizenry. These ads attack that conception of party in a number of ways: Because they are increasingly the sole way of campaigning, meaning that all a potential candidate needs is money and a media advisor, the party increasingly has no role in either candidate development or in office-holder discipline for program. Because the conduct of the campaign has been turned over to the political consultant, the parties have become little more than service centers for fund-raising and consultant activities. And because the only concern of the consultant is winning, the nation is subjected to a politics of "wedge issues," in which neither party is presenting either a durable or, often, a relevant program.9. These ads severely constrict public policy consideration: No one who has given the problem of the burgeoning national debt and its impact in constricting both private and governmental initiative serious consideration can fail to recognize that soaring Medi-care costs and the potential bankruptcy of that program is a central concern in bringing the budget back into a semblance of balance. Yet, after President Clinton vigorously-and successfully-demagogued that issue in 1995-96 with a barrage of television ads aimed at creating fear among the elderly, no one is willing now to take the first step in providing remedy. Nor is anyone willing to address any of the other potential concerns both with respect to budgetary balance or to the equally great problems facing the nation. Instead we witness leadership offering sterile and self-defeating debates on such things as partial birth abortions, balanced budget amendments, and campaign finance. Because of these ads, we debate the peripheral and hope for bi-partisan commissions to address some of the central issues and insulate leadership from the potential risks of the exercise of that leadership.10. These ads inhibit commitment to public service: No one who is not uncommonly rich, extraordinarily ambitious, or certifiably insane would wish to get into a politics in which a person had to spend all of his time raising money for the privilege of being systematically vilified on television for the better part of a year. It is no accident that in the two most recent UCLA surveys of incoming college freshmen-at a time when more of those freshmen are professing interest in teaching, law, and volunteerism than at any recent time-the level of interest (30 percent) and desire to participate (16 percent) in politics is at its lowest level in the history of that poll.The Sole SolutionThere is, neither in politics nor for society, any satisfactory address of these ads short of regulation.In politics, a campaign manager can defend against and compete with all other forms of campaign activity. Direct mail can be ad-dressed and its effect mitigated by flooding mailboxes. Radio ads can be answered readily and cheaply. Newspaper ads can be answered in competing words. Only television ads offer no easy defense, except the monetarily and socially costly one of responding in kind and volume.Nor have a series of voluntary approaches succeeded in mitigating the problem for society. Voluntary codes of conduct have been given lip service by campaigns and dishonored in practice. Debates on levels below the presidency are not covered by any medium except lightly watched public broadcasting. Kathleen Hall Jamieson of the Annenberg Public Policy Center deserves great credit for introducing the concept of the journalistic ad watch, which allows citizens who read or watch them to deconstruct a particular ad for its messages and distortions. But a watch on one ad does not begin to catch up with the hundreds of ads that are on television in a single day. An attempt in Florida to require candidates to accept responsibility for their campaign ads by appearing at the end of them declaring their authorization of such ads, has neither reduced the volume nor virulence of the ad campaigns in those states.Recently Paul Taylor, formerly a distinguished reporter for The Washington Post, has sought to improve campaign discourse by persuading or coercing the broadcasters to provide from one to two hours of free time each campaign season for candidates and party spokespersons to directly address the electorate. But while this might provide some modest leavening to campaign communications, one or two hours a campaign season cannot begin to compete in power and impact with the one to two hours a day of produced ads that glut the airwaves each election year.Ultimately, leadership will recognize that there is no antidote for the damage these ads do short of regulation. Mercifully, when they do, they will find widespread public support. In a poll taken by Princeton Survey Research for my committee, between 67 and 82 percent (depending on the wording of the question) of the electorate supports regulating these ads.The constitutional case for such regulation rests on five premises:* That television ads, while a form of expression, are not speech and, in the various ways already described, undermine speech.* That there is no effective remedy short of regulation.* That television is and has been deemed by the Supreme Court to be different from other media in limitation of access and pervasiveness of reach. It is also different in terms of impact and strength of impact. To make an analogy, television advertising is to other campaign techniques as nuclear warfare is to conventional weapons.* The purpose of the First Amendment is not, strictly speaking, to allow anyone to express themselves in whatever way they want, wherever and whenever they want. It exists to provide citizens with a broad and relatively unrestricted forum for debate and discussion. The Court has ruled that one cannot falsely shout "Fire!" in a crowded theater, that child pornography can be banned, that there are forms of speech that are actionable under the laws of libel and inciting to riot. Televised political advertising-in its deleterious impact on society-comes closer to child pornography than it does to the healthy exercise of free speech.* In the damage that such advertising does to the political system, there is a compelling state interest in such regulation. Within this constitutional framework, and mindful of the need to have regulation that is content neutral and offers no partisan advantage, there are essentially three ways to effectively address the advertising question.One could do precisely what France does-abolish all paid political advertising during an election year, allocate a block of free time to the parties and candidates, and require that a party spokesperson or candidate speak to the camera for the duration of the donated time. One could, as former political consultant Charles Guggenheim once suggested but has since backed off from, require that broadcasters sell advertising time in election years in blocks of no less than two minutes-ridding us of spot advertising, allowing viewers to shut off ads, and presumably providing more content in the ads that are aired.Or one could require that for spot advertising-ads that last two minutes or less-the purchaser of the ad or an identified spokesperson speak to the camera for the duration of the ad. This would allow anybody to buy whatever time he wanted and to say whatever he wanted, provided that an identified person did the saying. By doing so, even within the existing framework of spot advertising, this would return the campaign dialogue to speech and accountability and, in a panoply of talking heads, reduce the impulse to use televised advertising as the sole method of campaigning. Any of these approaches are devoutly to be wished, but the latter offers some small advantages:It has been codified into legislation and sponsored over the years by the likes of present and former Sens. Warren Rudman, Daniel Inouye, John Danforth, Ernest Hollings, Bennett Johnston, Terry Sanford, James Jeffords, Wendell Ford, among others; present and former Reps. Thomas Foley, Barber Conable, Richard Gephart, Matt McHugh, among others; and enjoys the external support of a range of people spanning the spectrum from former FCC chairperson Newton Minow to conservative talk show host Bay Buchanan.As a regulation on the purveyor of the ad rather than on the carrier, this solution can apply to not only candidate and party ads, but also to independent expenditure ads and may be enacted not only at the federal level but also in the states.For nearly two decades reformers have sought to improve the political system by focusing on the supply of money-by seeking to put various limits on the type of money which could be spent and given. These efforts have always crashed on the shoals of partisan politics and substantive inadequacies. And even were they enacted, they would not deal with campaign conduct and the damage it is doing to the American political system.As former New York Times executive editor Max Frankel wrote recently, "It's the demand, stupid." Perhaps after two decades of failure in dealing with reform on the supply side, it might be both novel and productive to attempt to deal with our process on the demand side-in the advertising that is driving up the costs of campaigns, but which is also undermining both the content and conduct of our politics and the engagement of our citizenry.Thirty years ago--and for time immemorial before that--politicians used to distribute modest sums of money to men with rough hands and seersucker suits (called precinct leaders) who would pass even smaller sums of what they were given to individual citizens to get them to vote. That was called corruption.Now, politicians give millions of dollars to men with smooth hands and Armani suits (called consultants) to put on attack ads which drive citizens from the polls. And that is called smart politics. But today's smart politics is corrupting our system in a much more profound way than "walking around money" did a generation ago. It's time to clean it up.