Democratic Presidential Candidates, Voters and Media

September 17, 2019

Commentators are scoring Democratic candidates by how “moderate” or “far left” they are. That’s nonsense. Let me count the ways.

Perhaps most important is that most voters don’t have a worked out platform. They are actually trying to judge sincerity. Some of us may prefer to choose policies. But most voters feel much more comfortable judging sincerity. So while commentators think Warren is too far to the left, the voters like her. What they are seeing is that she cares about them. That’s important. They want the winner to work for them and they figure that if the candidate cares, they’ll choose the right policies. That after all is the elected leaders’ job. Voters never aligned with Reagan’s policies but they liked and trusted him. That’s one of the reasons Republican appeals to what Reagan did seem hollow. They aren’t Reagan.

There’s another equally important reason. Presidential candidates’ policy preferences tell us what they will try to do, not what will happen. That’s partly out of any official’s control. Legislators, administrators, judges and changing circumstances have a large hand in that. Obama wanted a public option. I still do. But he couldn’t get it. What mattered is that he wanted medical coverage for all of us and he did his best. I appreciate that. And it is a big contrast with the absence of any Republican plan.

So it’s sensible for us as voters to ask whether this candidate will move the political system in a good direction, pulling and pushing despite opposition to get the best possible result. So a candidate like Warren is to the left of the Congress and thank heavens!

What I think the details really can show is whether the candidates are able to think things through. I do understand why she wants Medicare for all even though, if I were in her shoes, I wouldn’t push for it. Medicare for all guarantees a good plan for all of us because equality means that if it’s going to be good for us, it has to be good for them, too. And of course a single payer system is cheaper to administer. So I admire her dedication to getting good care for us all even if I can see disadvantages. But no candidate will get everything they want. So we’ll get a compromise between “moderate” ideas and caring motives. A president isn’t a monarch, and shouldn’t be.

One more reason: moderate and left are sloppy terms. If I like one leftish idea that doesn’t make me a leftist. If sometimes I support competition like Republicans do, that doesn’t make me conservative. Voters might disagree about one thing or another but like and trust a candidate. Or they might mislabel a candidate’s whole platform based on one idea and jump away. The media are being sloppy. There are ideas to the left of current American politics that Americans like and some they don’t. They do like medical care. They do want government to make sure that we all have access to important and essential services, whether or not the proposals started out on the left. Sloppy characterizations don’t help. Clarity and precision are much more useful.

 

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From Chaos to Monopoly – the End of Net-Neutrality

December 12, 2017

Those of us warning that American democracy is threatened have still been stunned by how fast. Political polarization elsewhere has led democracies to collapse. Polarization here has largely been the unintended consequence of a legal transformation. But the cure may be even worse.

Over the past half-century, legal changes fractured the media by helping cable television  and available broadcast channels expand. Before fake news became an industry, the fractured media promised us a more democratic marketplace of ideas. But it made us a fractured audience, no longer watching or hearing the same news.

Court decisions eliminated liability for innocent misstatements that defamed people. The fairness doctrine once required all broadcasters to provide balanced coverage of controversial issues of public import. It was dismantled in the 70s. Now TV and radio are much more one-sided. A new statute and court decisions gave internet providers immunity even for fake news. The internet rapidly became both the intended source of valuable views and information, and the unintended bastion of garbage, leaving readers, viewers and listeners much less well-informed about the competing arguments over public issues.

Meanwhile, courts and state legislatures put presidential primary elections firmly in control of the nominating system.  Primaries often drive candidates to the extremes to capture majorities of their own parties, not toward the center to capture independent voters. Instead of balancing each other, therefore, the media and nominating systems increasingly radicalized each other since the 1970s.

President Theodore Roosevelt once said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft ended in the 70s, a casualty of our disagreement about the war in Vietnam. The public schools have been hollowed out by charter schools and re-segregated with the help of suburbanization, zoning and Supreme Court decisions after Rehnquist took its helm in 1986. So neither schools nor the draft bring us together as they once did.

Federal agencies were at the heart of segregating the suburbs before and even after Brown v. Board, deepening polarization in the process. Financial institutions only compounded the damage with their sub-prime loans.

In this polarized, divided, segregated era, the Court in Washington decided the nation’s most contentious issues of race, police behavior, school prayer, abortion, equal rights for women and people with differing sexual orientations.  These were mighty battles over justice with enormous consequences. Mildred and Richard Loving could marry and live as a devoted couple near their relatives in Virginia despite their difference in racial origin.  Similar opportunities opened for women, African-Americans and members of the LGBTQ community. Some went free who would have been hanged for crimes they did not commit.

But the Court’s decisions sharpened the polarization among us. Where now can we hold a “national conversation”? In a fractured media? In a primary system designed to favor extremists? In the military tent? Or walking our kids to school? We have, unintentionally, torn the fabric of our community. Still we could rewrite some of the rules that aggravated our polarization.

But on Thursday, the Federal Communications Commission wants to eliminate net-neutrality and give a few large corporations control over what we see and hear. I’m concerned by which friends of FCC Chairman Ajit Pai would get control over our news sources. We’re going from chaos to monopoly. With Trump leading the charge against the most careful and professional news sources, it feels like we are headed to autocracy and bye-bye democracy.

— This commentary was broadcast on WAMC Northeast Report, December 12, 2017.


Polarizing America

January 31, 2017

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).


Silencing: Pensions, Kurds and Black Lives Matter

August 16, 2016

We watched a Black Lives Matter march pass in front of our house recently. It reminded me of something that happened in 1972, when NBC aired a documentary called “Pensions: The Broken Promise.” It described many instances in which loopholes in pension plans left people without the pensions they thought they had. The narrator called the “situation” “deplorable.” The documentary won many awards and played a part in developing public support for pension legislation which now goes under the acronym ERISA.

But a group called Accuracy in Media sued pursuant to the now defunct “fairness doctrine,” claiming that the documentary presented a “distorted picture of the private pension system” because almost nothing was presented on the positive side.[1] They wanted to censor NBC for not airing another program about all the good pensions. The U.S. Court of Appeals for the D.C. Circuit ruled in favor of NBC. The instances detailed in the documentary really happened; they were undisputed. The complaint asked NBC to air a documentary on a different issue – the overall soundness of pensions in America. The Court understood that requiring NBC to discuss the overall issue would dilute its attack on the abuses that had been allowed and had left many workers without pensions. It also might mean that broadcasters in the future would pull their punches, and avoid controversial exposes, no matter how valuable. Those consequences would neuter, rather than contribute, to public discussion of controversial issues of public importance.[2]

Let me turn to another place where the same tactic is being used. Turkey has not allowed Kurdish grievances to be raised. The government says that there are no Kurds, or no loyal Kurds; there are only Turks. So they can talk about grievances so long as they have nothing to do with Kurds. Having silenced Kurds, they then continue to fight a shooting war against the Kurds.

There have been calls for the same method of silencing in an American context today. Various groups attack Black Lives Matter because they say, accurately, that all lives matter. But the meaning of their attack is to neuter the Black Lives Matter campaign. Of course all lives matter, but African-Americans have had distinctive problems. To require Black Lives Matter to discuss the whole issue of abusive treatment of everyone would dilute their campaign, their point, and make it harder to focus on the difference in the way people are treated, the reason why Black parents have to have “the conversation” with their children about what to do if the police stop them, a conversation white parents don’t need to have. Objections to the slogan, that Black Lives Matter, is an effort to keep the veil over a serious injustice in our society.

Of course all lives matter. But most of us understand the phrase “Black Lives Matter” as meaning that Black lives matter too. That’s standard English, both because meaning in our language comes from context and because a positive statement does not imply the nonexistence of everything else. There is no negative implication that other lives don’t matter; there is only emphasis – Black lives, the lives of Black people, are important, they matter, they have been ignored, and that has to stop. Yes, Black lives do matter.

— This commentary was broadcast on WAMC Northeast Report, August 16, 2016.

[1] In Re Complaint by Accuracy In Media, Inc. Concerning Fairness Doctrine Re NBC, 40 F.C.C.2d 958 (F.C.C. 1973).

[2] NBC v. FCC, 516 F.2d 1101 (1974). Note that the 1974 decision has been vacated on other grounds and is no longer available on common online sources but is available in the hard-copy reporters.


Dealing with Citizens United: Second in a Series on Money in Politics

July 12, 2016

Last week we discussed the importance of taking political campaigns back from big donors. This week we begin examining the complexity of reinstating limitations without damaging what should be protected speech.

Citizens United[1] angered people about corporate legal rights. People want to remove those rights wholesale. But that view of the Court’s mistake raises far more serious First Amendment issues than most people understand.

Removing corporate protections would require distinguishing corporations that should be protected – political associations, broadcast, digital and print press – from those that should not be protected. That’s not easy. If corporations release “news” reports or take positions, are they press or stockholder associations? What would broadcasters’ or newspapers’ protections depend on? What would legitimate or prohibited explanations of corporate needs and positions be? First Amendment law developed around clear rules to prevent judges or legislators from deciding who can speak about what. Removing First Amendment protection from corporations cuts deeply against the First Amendment grain.

Constitutional rules, however, can be limited for compelling reasons. Citizens United revealed fundamental problems with the justifications, like corruption, for financial limits on participating in campaigns. Quid pro quo corruption is clearly illegal but regulation went well beyond it. Money can divert legislators’ attention from constituent needs toward donors’ needs, but can also expose misbehavior, or champion voters’ interests. Attorneys’ ethics prohibit us from engaging in deals or accepting gifts that create conflicts of interest – but it’s harder to define legislators’ conflicts where the donors or their allies are constituents. So the meaning of corruption has been vulnerable to attack and narrowing by the Court.

Large donations can entrench office-holders against challengers. But they can do the reverse by helping unseat legislators. The Court hasn’t been very receptive to that claim.

Political equality is a right, including rules surrounding voting, vote counting, and apportionment of districts. But just as clearly, economic equality is unacceptable here. The logical conclusion of economic equality would be a never realized vision of communism. Demanding some economic equalization in politics would force the Court to balance the extent to which economic equality can be required by political equality. That’s not a problem with a specific solution. And the Court is skeptical of allowing legislatures to define the balance because they have conflicts of interest. In any event, legislation doesn’t look promising in Congress or in most states. I’ve argued that the Supreme Court must consider equality in shaping economic rules, but that’s harder where it requires narrowing First Amendment principles. So financial equalization is hard to define and harder to argue.

Well-respected Harvard law professor, Lawrence Lessig, argues that campaign finance restrictions would prevent legislators from becoming too dependent on a few powerful donors.[2] Dependence leads legislators to shirk their duty. But legislators shouldn’t be independent of their constituents or powerful voices. So, once again, what’s the right balance? Who is and is not entitled to participate in the political debate? And how much is too much, or too little? Moving beyond Citizens United will have to be done thoughtfully.

In any event, four of members of the Citizens United majority remain on the Court. Justice Kagan is new. People who know her well tell me that she is a First Amendment absolutist, which liberals would have applauded before Citizens United, and she is not likely to overturn it. So the decision will be with us for a while.

Next time we’ll look at the proposed amendments.

— This commentary was broadcast on WAMC Northeast Report, July 12, 2016.

[1] Citizens United v. FEC, 558 U.S. 310 (2010).

[2] Lawrence Lessig, Republic Lost (2011); Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property, in Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications 914 (LexisNexis 3d ed. 2015) (“defin[ing] freedom in terms of the multiplication of dependent relationships”); Bruce Bueno de Mesquita and Alistair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics (2011); BRUCE BUENO DE MESQUITA, et al,  The Logic Of Political Survival (2003).


Media Coverage of the Presidential Campaign

June 7, 2016

During this pledge drive, amid disputes about media coverage of the presidential campaign, it’s a good time to review how we got here.

The 19th century press was partisan; every party had their papers. Around the dawn of the 20th century, publishers and advertisers who wanted to reach people on all sides, shaped the era of the penny press and just-the-facts news, with opinion segregated onto separate editorial pages. News was supposed to be nonpartisan. It worked very well when the media put the cruel responses to the Civil Rights Movement into every home in America.

Nevertheless, even while Civil Rights and Vietnam glued Americans to the media, the press was still reeling from self-criticism about how it had allowed the infamous Senator Joe McCarthy to make unsubstantiated charges of treason and communist sympathies without appropriate debunking. And so was born the era of checking with targets for their response.

In broadcasting the FCC enforced the fairness doctrine, requiring balanced presentation of controversial issues of public importance. That sounds better than it was. I learned first-hand when the now defunct St. Louis morning paper blasted the Legal Aid Society there and we met with the editorial board of the afternoon Post-Dispatch. They told us that denials wouldn’t help, and would actually remind the public of the charges. Instead they would – and did – run stories about the good things we were doing.

He said-she said journalism or the more oblique but effective good-story-bad-story journalism could help to inform people on issues they follow closely with open minds. Otherwise it could be more confusing than helpful.

In this era, I believe Irving Kristol, himself a conservative, wrote an article saying the New York Times was both America’s best newspaper and not very good. His point was that reporters weren’t experts in the areas they were covering. Taking a man-in-the-street approach to stories helped reporters write for and speak to ordinary Americans but often at the cost of misunderstanding issues that experts could have untangled.

Sociologist Herb Gans wrote a book explaining that media bias rarely resulted from partisanship but from the ease of newsgathering from a few sources, like the White House, which gave those sources disproportionate access to the press.

By the time their work came out, Woodward and Bernstein had blown Watergate open and everyone tried to copy what we now call investigative reporting. That goes much deeper but involves the reporter or news outlet in examining controversial issues, laying themselves open to charges of bias by anyone who disagrees.

But legal rules changed and cable soon splintered the marketplace for news, now further splintered by digital media. As in the 19th century, Americans can choose what they’d like to hear, see or read and ignore the rest. Everyone can speak to their own choir with thunderous applause. More discerning and complex stories are often ignored or reduced to sound bites.

Donald Trump takes advantage of that by simply announcing his views in outrageous ways sure to catch everyone’s attention. While Joe McCarthy could make unsubstantiated charges without fear of press criticism, Donald Trump uses inflammatory rhetoric to get everyone’s attention above the din of press criticism.

I’m not convinced there is a perfect answer. Every campaign reflects the efforts of a new crop of politicians to game the media approach of their era. And in an effort to be fair, the press tries not to make candidate-specific judgments about how to cover campaigns – including Trump’s – but tries to cover them in standard ways.

If you listen closely on this station you will hear the residue of every method of journalism practiced in America for the last century. There are straight facts, he-said-she-said journalism, commentary, investigative reporting and a plethora of polling and analysis from every direction. This certainly is the thinking person’s station. Thank you WAMC.

— This commentary was broadcast on WAMC Northeast Report, June 7, 2016.


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