Be Prepared To Defend Political Advertising

The Democrats are licking their wounds, having failed on Tuesday to capture the 6th Congressional District outside Atlanta in what is being called the costliest House race in history.

Their man, Jon Ossoff, lost to Republican Karen Handel by a four-point margin, 52% to 48%.

The Dems saw the race as a referendum on the Trump presidency and they had hoped it would be a harbinger of a Democratic takeover of the House in November 2018.

The dollars in play were staggering. According to the Center for Responsive Politics, the two candidates and their supporters spent more than $50 million in the campaign.

According to Kantar Media, $28 million of that went into local TV spots.

That big numbers will inevitably spark new calls for laws that put caps on campaign spending from those who feel the fundraising that supports it corrupts our representative democracy, that it gives wealthy contributors undue influence in the political process.

The special target of the reformers is the Supreme Court’s landmark 2010 Citizens United ruling that struck down laws banning corporations, union and other organizations from spending as much money as they want in support of a cause or candidate as long as they are not in cahoots with the candidates or their parities. Since 2010, this growing pool of money often comes through so-called super PACs.

Right now, there is not much danger that the reformers will prevail and that government will move to put any meaningful limits on individuals or associations that want to delve into political speech.

A Supreme Court decision is hard to reverse especially since the ideological composition of the court really hasn’t change since 2010. (Conservatives tend to oppose any kind of limits on campaign finance.)

Nonetheless, broadcasters should be well versed in defending the current state of political fundraising and spending and I have the perfect thing for their getting versed.

It’s The Soul of the First Amendment by Floyd Abrams, the noted First Amendment scholar and litigator who argued against spending restrictions in Citizens United as a representative of Sen. Mitch McConnell (R-Ky.).

The small book of essays talks about the United States’ uniquely expansive view of free speech and press and makes his case for why the Supreme Court did the right thing in Citizens United.

According to Abrams, the controversial ruling is based on two fundamental ideas laid out by Justice Kennedy in his majority opinion. The first is that political speech deserves the highest degree of First Amendment protection. That seems beyond question.

The second is that the right of individuals to spend unlimited money on political advertising has been long established by the high court (Buckley v. Valeo, 1976), and so it naturally follows that associations of individuals should enjoy the same right.

To make his point, Abrams says, Kennedy in his opinion cites 25 cases in which corporations have been deemed First Amendment speakers, including, of course, corporations that publish newspapers.

Abrams suggests that the government’s case for bans on corporation expenditures unraveled in the initial arguments when the government’s lawyer was forced to say that the corporations would not only be barred from airing TV ads prior to elections (the statute actually at issue), but also to publish books.

In a re-argument six months later, another government lawyer, Elena Kagan, who would later join the court, tried to reassure the justices that the federal bureaucrats would never ban a book, although it might a pamphlet, which is “pretty classic electioneering.”

That admission didn’t help the case, either.

“No relevant constitutional distinction can be drawn between books and pamphlets, and no distinction in this area between books and pamphlets and broadcast and cable makes any sense at all,” says Abrams.

It’s funny that many of these sticky First Amendment issues involving TV become clearer when you substitute “books” for “TV.” The next time someone starts spouting off about how we have to do something about super PACs flooding the airwaves with negative spots, ask whether we should also make it a crime for that super PAC to publish a book advocating the same thing. And then ask if he would join you in building a bonfire to burn such books once they are criminalized.

Abrams is clearly irritated by the New York Times for leading the chorus of liberal outrage against Citizens United. To his “consternation,” the paper tries to carve out a special place under the First Amendment for media corporations like itself, Abrams says. They may use their money to influence an election with editorials or even politically skewed reporting, the Times thinking goes, but non-media corporations may not.

“So if the Times had its way,” Abrams says, “the plethora of noncommercial entities that are organized as corporations but do not have a ‘press function’ — universities, museums, theaters, bookstores and not-for-profit entities such as the American Civil Liberties Union and the National Rifle Association that take positions on public issues — would no longer have First Amendment protections.”

Abrams argues also that the impact of Citizens United has been vastly overblown by its critics. “Was the New York Times correct in its editorial declaration that the ruling would return the nation to robber-baron times of the past? Was the Washington Post prediction correct that corporate expenditures would overwhelm those of individuals? Have we really reached a state, as predicted in the San Francisco Chronicle, of ‘cash-drenched elections presided over by free-spending corporations.’ “

Abrams points to the 2016 presidential election where all the Big Money Republican candidates quickly fell by the wayside during the primary — Scott Walker, Rick Perry, Chris Christie and Jeb Bush. Meanwhile, a candidate with virtually no money going in, but eventually plenty of individual support, Bernie Sanders, emerged to make Hillary Clinton’s life miserable.

Abrams concedes that wealthy individuals, families and businesses can buy access to politicians that most people cannot. But that fact does not justify “speech-limiting” laws and regulations.

A more proper response would be policies aimed at closing the income gap, at increasing voter turnout and at requiring greater transparency in who’s spending and giving to an effort to swing elections.

Nothing in Citizens United or any other Supreme Court ruling prevents the government from requiring full disclosure of those funding super PACs, Abrams says.

Of course, broadcasters have an interest in this debate that goes beyond the implications for our democracy. Because they sell the time for the spots, they are the ultimate beneficiaries of much of the fundraising and spending that seems to go up in each and every election cycle.

While the Democrats may have been disappointed by Tuesday’s results, broadcasters were not. They see it as a harbinger for greater political spending in the midterm elections of 2018.

In at appearance in New York last week, TVB President Steve Lanzano said he expected that spending on TV would exceed the $2.1 billion spent in the most comparable prior year, 2014, although he was not prepared to say by how much.

As I said, Congress and the courts are not going to undo Citizens United any time soon. However, Congresses and courts change over time in response to public opinion. 

And even Abrams concedes that most Americans are unhappy with today’s anything-goes approach to campaign finance. He cites an unnamed poll showing that 80% of the public would like to see Citizens United reversed.

Broadcasters should not apologize for being on the receiving end of the system that insures them a biennial campaign spending windfall, but they should be prepared to defend it.

P.S. Broadcasters also ought to support laws and regulations requiring any organization buying time from them to fully identify themselves and their backers. There is no room for shadowy organizations in public debates critical to the commonweal, and, as news gatherers, broadcasters should always favor shedding light on the machinery of democracy.

Harry A. Jessell is editor of TVNewsCheck. He can be contacted at 973-701-1067 or here. You can read earlier columns here.