Senator Archibald Winchester is a fool! (message brought to you by Nike, Goldman Sachs, and the Teamsters)
Commercials, democracy, and Citizens United vs. Federal Election Commission
What does it say about the legitimacy and viability of democracy if 30-second television ads, presenting clearly biased views of candidates, can change people’s votes? If democracy presupposes or requires a reasoned, educated populace, does the efficacy of television ads contradict this?
There are number of issues lurking here. First and foremost is the problem of how much time a rational, self-interested individual will spend educating himself on political issues, given that his vote will almost certainly not swing the election. How much time ought he spend, given his various other commitments and the limited amount of time in the day? We don’t talk much about the (civic) duty to stay informed and engaged. In the end, most people–independents included–don’t spend much time thinking deeply about politics. As a result, 30 second spots, repeated over and over again, can invade one’s brain effectively.
Commercials are not geared to convince the reasonable, cool, deliberative democratic citizen. For the most part they are geared toward the unconscious. A few months ago, McDonald’s must have come into an enormous amount of cod that it needed to unload in a few weeks before it all went bad. Everywhere I went–everywhere–I learned that I could get two Filet-o-Fish for $3, or whatever it was. I never thought much about this, considering that I never go to McDonalds and have almost no interest in fried fish sandwiches. Fast forward a few weeks and I am sitting in a Mickey-Ds munching on not one, but two fish sandwiches. (With fries and a drink it all somehow came to $8. I remember leaving somewhat bitter and dehydrated). It just sort of happened. I couldn’t resist the commercials. There was that one with the fish singing that song… I had fried fish on the brain, but not in the “high” brain of rationality and deliberation; it was in the “low” brain of habit and unconscious.
That is what commercials do. Of course, that’s not what they only do. In 30 seconds, you can communicate a fair amount of facts, etc. But there is a reason to think there is a moral difference, from the perspective of free speech in politics, between a book, documentary, or speech that presents a longer, more coherent and researched argument and a 30-second ad that places the equivalent of a jingle in your brain. Longer works can be biased, but that’s not the point; they are at least somewhat reasoned arguments for people to consider and debate, rather than little snippets of emotion or the presentation of a single fact taken out of context (i.e. Senator Wilhem Guggenbilly voted against education!). Whether the law can distinguish between the two forms of speech is a separate issue. And, of course, the speech in question in Citizens United involved a long-form documentary.
If Nike, Goldman Sachs, and unions, etc. wanted to publish lots of books and documentaries from a certain political perspective, I don’t think people would care as much. This form of speech is non-threatening, at least from my perspective, and should be encouraged. It evinces an energetic and thoughtful populace. The unspoken worry is that through television and radio ads, these companies can sort of circumvent the process of democratic communication and deliberation through a form of fried-fish mind-control. In the end, if one of the main points of free political speech is an informed and energetic populace, won’t more and more ads be counter-productive? Probably.
Penultimate point: It’s been said before, but unlike many other rights, speech is zero-sum. The population and politicians only have so much time in their day to devote to listening to political arguments. If one person can afford, financially, to dominate the airways, then other people’s ability to utilize their speech rights, at least in relation to politics, will be weakened. Of course, America is generally about equal opportunity and not results.
Final point: Not having read the opinion, I wonder to what extent and in what manner the policy implications of the decision were incorporated into its reasoning.