Everyday Politics Blog

First Amendment Controversies, part II: The future of the Bipartisan Campaign Reform Act

By David Watkins

A few weeks ago Laura McKenna wrote about some controversial exceptions regarding the 1st amendment as it applies to freedom of the press. I'm following up today with a quick note about another ongoing first amendment controversy regarding political speech.

You've probably noticed the ubiquitous "I'm so-and-so and I approved this message" at the end of candidate radio and television advertisements. This is one of the many consequences of the Bipartisan Campaign Reform Act of 2002, more commonly known as"McCain-Feingold" after its somewhat unlikely lead sponsors in the Senate. The purpose here is to make clearer and more obvious the distinction between a candidate's own words and message and other political messages. The fight over this bill was particularly intense in the Republican party, where many Republicans' opposition to the core ideas of this bill was particularly strong (McCain's championing of campaign finance reform is a significant contributing factor in his reputation as a "maverick" in the Senate).The bill almost immediately produced a legal challenge from Kentucky Senator Mitch McConnell. McConnell was following the precedent set by Jim Buckley, a congressmen who sued over a campaign finance bill in the 1970's.

In that case (Buckley vs. Valeo) the court upheld the law's restriction on individual contributions to political candidates. However, the court also ruled that spending money to attempt to influence the outcome of elections is a constitutionally protected act of political speech. In the BRCA, the phenomenon known as "issue ads" were not directly prohibited, but they were further regulated. Defined as "electioneering communications," these ads were now subject to numerous restrictions to limit their coordination with campaigns and impact on elections. The proximity of third party ads naming candidates were restricted, as were the entities permitted to fund them (corporate and union sponsorship of such ads, for instance, were restricted). McConnell was less successful than Buckley; the vast majority of the key provisions of the BRCA were upheld in the 2003 decision

However: the status quo is precarious. For one thing, the majority in McConnell vs. FEC was a bare 5-4 majority, and included the no-retired Sandra Day O'Connor. Her replacement, Samuel Alito, is much more likely to side with those who find these restrictions unconstitutional. In fact, a new case in which the BRCA's constitutionality was questioned was recently argued before the Supreme Court. The case involves the question of restrictions on the distribution of a 90 minute anti-Hillary Clinton documentary, and whether it could be distributed. The government's lawyers are arguing that the ability to restrict campaign advocacy materials extends beyond simple advertisements:

Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authorityto limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.

Justice Anthony M. Kennedysaid the government’s uncompromising position could have dire consequences for the McCain-Feingold law....

“Hillary: The Movie,” a documentary with elements of polemic and advocacy journalism, was produced by Citizens United, a conservative nonprofit corporation. It was released during the Democratic presidential primaries last year, and a lower court said it could not be broadcast within 30 days of those elections.

(full story here)

We'll have to wait for the decision to come down, but based on oral arguments it seems possible that the legal interpretation of the relationship between protected political speech and political advocacy in campaigns may change again. But whatever the court decides in this case, the controversy isn't going away. There are a number of difficult questions swirling around this debate, including: What is the relationship between 1st amendment protected political speech, and money spent to disseminate that message, and the strategic targeting of those messages for elections? Should money spent of the dissemination of speech be subject to more regulation than the speech itself? Should proximity matter? If we allow money spent on political speech to go largely unregulated on first amendment grounds, will the political ideas and perspectives of those without much money be crowded out?

Ongoing Economic Conflict

By David Canon, coauthor of American Politics Today

Congress enacted the economic stimulus package, the “American Recovery and Reinvestment Act,” into law a little over a month ago. At the time the law was being debated in Congress, there was broad agreement among economists and political leaders that something needed to be done to jump-start the economy. Bank lending had ground to a halt, consumer spending cratered, thousands of home mortgages were being foreclosed and tens of thousands of jobs were being lost every week. However, there were sharp disagreements among Democrats and Republicans over how to address these problems. In the end, not a single House Republican and only three Republican senators voted for the Recovery Act. In American Politics Today we emphasize the fact that “politics is conflictual,” but many of our students have wondered how there could be so much conflict over what to do when it seemed to be so clear that the government needed to act.

The White House provides this overview of the $787 billion stimulus package (see http://www.recovery.gov/ for a complete description and analysis of the law and an accounting of how the money is being spent):

• Create or save more than 3.5 million jobs over the next two years; 

• Take a big step toward computerizing Americans’ health records, reducing medical errors, and saving billions in health care costs;

• Revive the renewable energy industry and provide the capital over the next three years to eventually double domestic renewable energy capacity;

• Undertake the largest weatherization program in history by modernizing 75 percent of federal building space and more than one million homes;

• Increase college affordability for seven million students by funding the shortfall in Pell Grants, increasing the maximum award level by $500, and providing a new higher education tax cut to nearly four million students;

• As part of the $150 billion investment in new infrastructure, enact the largest increase in funding of our nation’s roads, bridges, and mass transit systems since the creation of the national highway system in the 1950s;

• Provide an $800 Making Work Pay tax credit for 129 million working households, and cut taxes for the families of millions of children through an expansion of the Child Tax Credit;

• Require unprecedented levels of transparency, oversight, and accountability.

What’s not to like?  Renewable energy, education, job creation, and rebuilding the infrastructure are all supported by large majorities of Americans.  So why were Republicans nearly unanimous in their opposition?  In our view, it was a combination of political calculation and honest policy differences.   

On the political side, Republicans decided to go “all in” on a gamble that the economy would still be in trouble in 2010 and that they could make huge gains in the midterm elections by blaming Obama and the Democrats for our economic woes.  Of course, if the stimulus package does get the economy going, they will not be able to share the credit

On the policy side, Republicans believed that too much of the money was going to spending and not enough to tax cuts.  About 37% of the package is to be devoted to tax cuts ($288 billion), 18% ($144 billion) is going help the states (almost all of the state aid is going to Medicaid and education), and 45% ($357 billion) is allocated to federal spending on the policies outlined above.  They also objected that some of the money, such as more money for unemployment benefits, came with strings attached.  For example, to get the additional federal money, states would have to agree to give unemployment benefits to part-time workers who had been laid off (which some states do not do).  Several Republican governors have said that they will not accept the federal money under those conditions because they would have to raise taxes to cover the new benefits after the federal money ran out in three years.  Democrats reply that those states could simply revert back to their old policy after the federal money is gone, and in the mean time unemployed workers will get much-needed help. 

These same battle-lines are now being drawn over President Obama’s $3.6 trillion budget.  Some moderate Democrats are balking at the huge budget deficits and agreeing with Republicans that more fiscal restraint is needed.  Overall, political conflict is a necessary part of passing important legislation such as the stimulus package and the budget.  It forces each side to justify its positions and in most cases the resulting policy is stronger and better because of the tough discussion, debates, and negotiations.

News summary of the stimulus package from mid-February, just before President Obama signed it into law:

Jon Stewart: Friend or Foe of Democracy?

Michael Xenos

In an earlier post, Laura closed a rather depressing entry with an offer for you to cheer up by indulging in some of Jon Stewart’s comedy.  But last week’s “Jon Stewart vs. Jim Cramer” confrontation raises a number of issues that remind us that laugh-out-loud comedy and serious issues related to American Politics are not always at odds. Although a mound of statistics would suggest that very few of you reading this have not already seen some of what I am referring to, I’ll include the following link in case you just never quite got around to viewing those links and clips that people may have sent you.

In addition to being wildly entertaining in its own right, the week-long confrontation, culminating in Cramer’s appearance on The Daily Show last Friday brings to light some of the principal features of political comedy (including The Daily Show, but also shows like The Colbert Report, and occasionally Saturday Night Live) that are often cited as evidence that we should be either alarmed or pleased that more and more young people are claiming to learn something about politics from people like Jon Stewart and comedy programming in general.

On the positive side, this exchange (much like its counterpart, the famous Jon Stewart appearance on CNN’s Crossfire years ago) illustrates the unique perspective comics like Stewart are able to offer on matters of public interest. As Stewart frequently points out, he is not a regular journalist and claims no special expertise on matters political or economic. As such, he is unconstrained by journalistic norms such as objectivity, and can say things and ask questions that television journalists simply cannot. Thus he is able to in this case develop a strong critique of his guest, and an entire class of television news content. Simply put, Stewart is able to engage in a serious discussion about the proper role of journalism (in this case, financial journalism), even if it is in the context of jokes and humor.

In addition to providing a kind of critical commentary that other news sources cannot, good political comedy also makes politics fun. This is valuable because as your textbook illustrates, for most people, most of the time, taking the time to learn something about politics is an uphill battle. Except for those who have an inherent interest in politics and public affairs, most people find little reward in learning about the issues of the day, and as a result, we often have to be careful about how we interpret things like opinion poll results. By weaving humor into discussions of current affairs, and yes, as Joe Scarborough points out, making the occasional funny face, Stewart makes otherwise unattractive information enjoyable to think about. According to political scientist Matthew Baum, by combining the serious and the amusing, political entertainment programming or soft news can serve as a “gateway” to learning more about serious issues, especially for those who are generally less interested in politics. Although Baum’s research primarily focuses on soft news coverage of foreign policy matters, the basic principle is applicable to a variety of political issues. In the case of Stewart vs. Cramer, it is possible that the event led a considerable number of people to have conversations and consume media content related to the financial crisis that they otherwise may have easily passed up.

Detractors of political comedy and soft news often point out that the thrust of the content is usually negative. Whether in the form of the monologues at the start of late-night talk shows, skits on SNL, or more in-depth “correspondent coverage” on The Daily Show, political comedy usually involves highlighting embarrassing gaffes or personal foibles, which leads many to worry that a steady diet of such content might fuel cynicism and disaffection from public affairs the political process. The same principle might be invoked with respect to Stewart’s media criticism. By making fun of serious news (financial or otherwise), some people worry that such humor may end up turning even more people away from programs and content that, despite their problems, are often a reasonable source of information about political issues of the day.

Either way, the increasing popularity of such programming further illustrates a broader issue, which is that important elements of how individuals learn about politics and form opinions are changing in response to a shifting media landscape, which makes it a very interesting time to be learning about American Politics. So, cheer up, and learn something about politics, but please try not to let it make you too cynical.

 

 

 

Exceptions to the First Amendment

Last week, the Obama administration reversed an 18-year ban on news coverage of the return of war dead, allowing photographs of flag-covered caskets when families of the fallen troops agree.

The ban was put in place during the first Gulf War, because the administration felt that these images were too powerful. No Americans would agree to go to war, they argued, if they were forced to view those powerful images. Since national security requires that the public is willing to defend its nation, the press has not been able to publish these photographs for 18 years.

The First Amendment clearly states that Congress shall make no law abridging the freedom of speech or the media. The United States takes its First Amendment very seriously and, as a result, we have one the freest presses in the world. Yet, the Supreme Court has ruled that there are certain important exceptions to these freedoms.

Freedom of speech and the press does not permit libel. If a newspaper publishes lies about you that damages your reputation, you have the right to sue them in court and seek monetary compensation. The Courts have clearly ruled that obscenity is not permitted free speech. However, the language regarding the definition of obscenity is so broad that, in effect, there are few regulations on pornography.

The other exception to the freedom of the press involves national security. The press can be prevented from publishing information that could result in harm for our troops or endanger the nation as a whole. No newspaper would be permitted to publish the  coordinates of our troops in Afghanistan or provide information about our defense systems. However, the courts have had stated that the government must be careful to not overstep this right to withhold sensitive information. (See the Pentagon papers and The New York Times v. United States (1971).)

The images of dead coming home from war in flag draped pine boxes is  a powerful image. There's no doubt that that there is a dead person inside, and it resonates much more with the public than abstract casualty numbers. Some say that had the public seen the images of dead soldiers coming back from Europe, we would have never fought WWII.

Other say that the public has a right to see these images in order to better understand all the facts of the war. If the press is prevented from publishing these pictures, then they may be prevented from publishing other relevant facts. They also say that the photographs have no direct impact on national security, and therefore these restrictions endangered the First Amendment.

Drawing lines between permissible speech and dangerous speech is a constant challenge for the Supreme Court. Do you believe that the Obama administration made the right decision in this case?

What Can He Do?

By Laura McKenna

When President Obama took the oath of office in January 2009, his first order of business was to put the breaks on an economic avalanche. We are in the midst of the worst economic crisis, since the Great Depression.

Major broker dealers on Wall Street and banks have either fallen or are in need of cash infusions to keep afloat. The unemployment rate has jumped to 8.1%. The Dow Jones has slipped to a 12-year low. Some states, like Michigan, Florida, and California, have been hit especially hard. (Check out this great, interactive map of the recession by state.) A record number of home foreclosures are leaving neighborhoods vacant and people homeless. The entire automobile industry is endanger of bankruptcy.

What should government do to stop this mess? Should government do anything at all?

We have already spent billions to prop up Wall Street firms, insurance companies, and car companies. Those billions may have prevented the entire collapse of the US economy, but they haven't been able stop the downward trend.

When President Obama was running for office, he promised a reform of the health care system and education system. Most thought that these proposals would have to remain on the back burner, until the economy improved. However, during his presidential address to Congress, President Obama said that the economy could not be improved without also improving schools and health care.

He is planning a major economic stimulus that not only hands money over to troubled, but indispensible industries. He also hopes to create new jobs and restructure our entire system of health care in this country. He hopes to pay for this program in part by rolling back the Bush era tax reductions on the wealthy. It is an ambitious program indeed.

David Brooks writes that this program is too ambitious, and he questions whether government should get involved in these massive enterprises. 

Others think that this program rewards bad behavior. The Wall Street firms that made risky decisions should not get bailout money. Foolish eople who spent too much for expensive houses should not be helped out, while others saved and spent responsibly.

On the other hand, many appreciated Obama's bold plan. His approval ratings increased after he gave his presidential address.

We are wading into uncertain waters. Rectifying the economic situation is clearly Priority One for the President and Congress, but we are not sure how far the government should intervene in these matters and what policies will increase confidence levels on Wall Street, stabilize home prices, and lead to jobs for young college graduates.

(Yes, this is a depressing post. Cheer up. Watch Jon Stewart talk about Octo-Mom)

Republican Strategy

by David Watkins

A journalism student here at Seattle University recently interviewed me about the Republican party's political strategy as a political minority in era of Obama. She, like many of my students, were surprised that despite Obama's efforts, virtually all Republicans in congress voted against his economic stimulus bill. She was particularly interested in why Republicans would take a such an oppositional stance against Obama's core policy initiatives, at a time when Republicans have suffered substantial electoral losses and Obama is quite popular. (On Obama's popularity see here. Obama's approval rating is more than twice as high as Bush's was throughout the last several years of his presidency. Perhaps even more astonishingly, Obama has a higher approval rating among self-idenfified Republicans than Bush had overall!)

What does the GOP have to gain from not compromising in a bipartisan manner?

Political scientists have repeatedly demonstrated that one of the most accurate indicators of voting behavior is economic performance. While the current economic catastrophe is probably not a "normal" recession and is difficult to project in terms of length and intensity, there is a very good chance we will still be in recession, or recovering weakly and slowly, in time for the 2010 midterm election. If the Republican party opposes Obama/Democratic efforts to protect/create jobs and turn the economy around, and the economy still looks and feels pretty bad to voters in 2010 (and/or 2012), they can put forth the following claim: "Obama/Democratic leadership pursued a failed strategy, we knew it was doomed to fail and that's why we opposed it, now give us a chance and we'll do something that works." However fair this is, it's a message that might work.

However: this is far from guaranteed to be successful. The GOP model, from a strategic perspective must be 1994 (Senate, House), when they made substantial gains and won back the House and Senate from Democratic control. They did so after two years of blocking and opposing Clinton's attempted legislation, including Health Care reform. The nightmare scenario finds a historical example in the midterm election of 1934 (Senate, House) in which the already-dominant Democrats gained nine seats in each house.

So which of these is 2010 more likely to resemble? One important similarity with 1934 is the economy, but also, at least for now, the impression that the Republican party is out of their depth on economic matters. Of course, 1994 is much more recent history and Heath Care reform may be on the agenda again. But: Obama is a much more popular president, who had a much larger share of the national vote than Clinton (because of the 3rd party candidacy of Ross Perot, Clinton won in 1992 with only 43% of the popular vote to Obama's 53%). And if Health Care reform is on the agenda, it is unlikely it will be as useful an issue for the Republican leadership as it was in 1994; health care costs have continued to grow and Democratic solutions are more popular now then they were in the past. Here's a good summary of public opinion on health care issues today.

A final thought on this question: It presumes that the Republican party is pursuing a long term, coordinated political strategy by opposing Obama. But there's another, perhaps simpler explanation. Many Republicans elected from moderate districts have lost their seats in the last two elections, leaving the remaining republicans overwhelmingly from "deep red" districts. As they became a small minority party, they became more conservative. It's quite possible they're opposing Obama's agenda in good faith.

Either way, the Republicans have their work cut out for them if they are to be electorally competitive. Here's the detailed version of  a recent New York Times poll. I'm particularly interested in questions 48 and 49. When asked if Obama should stick to his policies of work in a bipartisan way with Republicans, his policies won 56-39. When the same question was asked about Republicans, 79% said they should work in a bipartisan way with Obama, and only 17% said stick with policies. It's possible that frustration with the economy will push people back towards the Republicans, but they've got a long way to be pushed.