Campaign Finance Part 1 Podcast Transcript

We explore the unique approach to campaign finance in the United States, focusing on the Citizens United case. This case, decided in 2010, changed the rules surrounding political spending and opened up new possibilities for campaign messaging. The impact of the case is far-reaching, particularly in the age of social media. The episode also delves into the competing theories on free speech and the implications for a functioning democracy and highlights the need for transparency and reasonable restrictions on campaign finance to ensure the integrity of the democratic process.
Key Takeaways:
• The Citizens United case in 2010 changed the rules surrounding campaign finance in the United States opened up new possibilities for campaign messaging and advertising, particularly in the age of social media.
• There are competing theories on the justification for protecting free speech in the context of campaign finance, with some arguing for individual expression and others emphasizing the importance of a functioning democracy.
• Transparency and reasonable restrictions on campaign finance are necessary to maintain the integrity of the democratic process, but it's difficult to balance these restrictions against the need for free expression (and free speech).

Taryn Ward  Hi, I'm Taryn Ward.

Steven Jones  I'm Steven Jones.

TW.  and this is Breaking the Feed, Social Media: Beyond the Headlines,

SJ.  We're taking a closer look at the core issues around social media, including the freedom of expression or free speech, as is sometimes known, to better understand the role that social media plays in our everyday lives and society.

TW.  Last episode, we wrapped up our look at hate speech and talk through several hypotheticals to think more deeply about how different courts might handle different issues. This episode will take a special look at campaign finance and free speech in the United States. The rules on how much individuals and groups can contribute to candidates, how that money is spent, and what sort of advertising is permitted really varies by country. But the US is unique in its approach to this issue. And as it's an election year, we thought it worth talking through the current situation. Steve, this all must be a bit strange for someone who grew up in the UK and now lives in Canada, because it's so different. 

SJ.  [Steve laughs] Yeah, yes. Yes, it is, although not as much different now, perhaps as it as it used to be. So, in preparation for this, I read a little bit the background on the on the UK, particularly, because they're coming into what would be an election season as well. And they've made some weird electoral decisions recently. Why in the recent past? So, what it said basically, was that until the 1800s, there were no regulations on this at all. And then they brought in a law that was intended to prevent corrupt practices, which sounds like a good idea in a democracy, isn't it? A law intended to stop corruption? More recently, that was some that was sort of updated. But for even in the updated regulations, it there was a feeling that people followed the rules, and they might not follow them to the letter, they the analogy they use is really good. They're like, people have a speed limit of 30 miles an hour, they might do 35, but they won't do 50. And it won't be acceptable for them to do 50. So, there was there was this little bit of leeway left in this, this is a typically British solution to a problem, right? It's like, everybody, you're going to be good chaps. They're out on the playing field and everybody wants to compete on a level level playing field. But if perhaps they can edge just a tiny bit, then that'll be okay. 

SJ.  So, that's how it worked, and then, of course, the Brexit referendum happened. And there was a lot of money from a lot of dodgy sources, and people weren't being jolly good chaps about the whole thing. They were being proper naughty boys, and, and let's be honest, it was mostly naughty boys, and some of them ended up in 10 Downing Street. So yeah, that there, there's a there's a push to sort of change the way this is done. 

SJ.  In Canada is really interesting. A lot of the financing obviously comes from the membership, but the vast majority of it actually is federally given, and it's given in sort of a per vote basis. So, the number of votes that you got across the country equals to a grant you get as a political party, and also they reimburse election expenses during the election time. So that's when most of the federal money flows. So, in order to try and make it reasonably fair, and in both places, there are legal limits on how much individuals can contribute, and also tax subsidies in Canada, at least for a political contributions up to a cap to maximum and it's not a lot of money. It's something $3,000 or something a year that there are tax absolutely so that the federal government actually contributes quite a lot modern money to the way that elections and political parties are financed here. 

TW.  Well, I guess it's good that it's not too shocking for you then to hear about how it's done in the US. I'm searching for silver lining, I guess. [Steve laughs again] But it is, you know, they are they are such different systems and in some way, so it'll be interesting to hear your thoughts as we talk through through this case today. 

TW.  So, if you're familiar with this issue at all, or if you spend any time on the internet the past few weeks, you've likely heard people talk about Citizens United. So, this is a 2010 case in really since 2010. The case on this issue, the Supreme Court held that certain provisions of the Bipartisan Campaign Reform Act of 2002. Restricting unions, corporations and other groups from independent political spending and prohibiting the broadcasting of political media funded by them within set timeframes before elections violated the Free Speech Clause of the First Amendment. 

TW.  Sorry, that's really a mouthful, but hey, it's basically it was a it's a really important case because it changes the rules. It was a challenge to the rules as they as they stood, it meant some really big changes. So you know, the too long didn't read version of this episode is some people feel this was a great decision because it removed Some so called barriers to free speech in terms of spending money on campaigns. and some feel like it opened up the floodgates to dark money in campaign finance and actually, in practice silenced individual voices. 

TW.  So that's what we're going to talk about this episode and over our next episode, and, you know, our job isn't to take a particular position, but really just to consider how this all fits together and what it means for social media and what it means for social media is impact our daily lives. So, let's back up a little bit, because we've said that context matters 1000 times, we have to, you know, we have to, we have to follow that through now. 

TW.  So, Citizens United wanted to air a film that was critical of Hillary Clinton, and this was just before the Democratic primary elections in 2008. But this would have been a violation of the law we just talked about and so, they challenged the law, the court determined that there was no sufficiently compelling state interest in the restriction, and so how that these limitations violated the First Amendment, huge oversimplification of everything that the case covered, but I'm trying to do broad strokes so that nobody gets too, too, too bored. So, just to clarify a few things that this case did not change the federal ban on direct contributions who corporations or unions to candidate campaigns or political parties, which remain illegal and races for federal office, or public disclosures, by sponsors of advertisements. At least that's the way it's supposed to work, we can argue about whether it actually works that way, another time, and you know, we've sort of gotten into this before, do we dislike the rule? Or we do? Or do we dislike how the rule is being applied. But there are a few interesting things to note before we before we really get into it. 

TW.  I don't know if you remember Michael Moore in Fahrenheit 911. It's, it's hard to believe it was as long ago as it was when I when I look at the dates. But this so-called documentary was highly critical of the Bush administration's response to 9/11. But it was a big part of the discussion, officially and unofficially, because Citizens United was tied to that film, and a lot of this was a response to that film. So back in 2004, Citizens United complained to the Federal Election Commission, that advertisements for this film, and the film itself was political, it was political advertising, and so it couldn't air shouldn't be allowed to air within the relevant time limits. Both complaints were dismissed. I saw the film Fahrenheit 9/11 At the time, but I rewatched it before we recorded this, so it would be fresh in my memory. Steve, did you ever see it?

SJ.  I think I did. But a very long time ago when it first came out, which is, you know, it is horrifying. How long ago that was? And I must admit that other than other than vague impressions, I don't remember it all.

TW.  Yeah, it's, it's interesting, because I mean, it's been a long time. But there was a lot, there was a lot I had forgotten. And there was a lot that I think time had sort of smooth to the edges of, and I think, you know, when I said I was going to watch it to prepare for this episode, I don't think I was really prepared for all of the reliving of 9/11, and the subsequent wars and conflicts that followed, and I remember, I only remembered in watching it a second time how difficult it was to watch it the first time. And, you know, there were parts that I sort of skipped over, and certainly parts that I you know, I looked away from the screen. But it really is a very political film. It is not a documentary, and in fact, if, you know, if you start looking at some of the claims that are sent out, and the truth value of them, it's, it doesn't get a great score, let's say that.  But at the time, it was a really popular, popular film. So, Citizens United was upset. They were not successful. They hated this film. They were angry about it. But they didn't give up. In fact, they made their own documentary, Celsius 4111. And just to be clear, I watched that too, for good measure. And this is not easy to do, because it's not widely available. In fact, a few quick stats. So, Citizens United spent more than a million dollars making this film, which earned something like $93,000 at the box office, the budget for Fahrenheit 9/11 was something like $6 million, and it earned more than $222 million at the box office. So, whatever your political views, you can imagine the quality difference between a film that was made on one budget and a film that was made with six times that budget. And although of course, commercial success is not a guarantee of quality as Fahrenheit 911 itself demonstrates. I think it's fair to say that most of our listeners have never even heard of Celsius 4111.

SJ.  Well, I hadn't, and I, I am fairly politically active, and I mean, part of this part of the success of a Fahrenheit 911 Was that George Bush was a crushingly unpopular president, not just in America, but globally and people were pretty tolerant, at that time, of anything that was going to be critical of him, I think and so, and part of the reason I think I didn't rewatch it listening to you talk was that it was not that comfort. It's not a comfortable watch, and that also, even at the time, I thought, well, you know, whilst I like to critique, and I enjoy the Bush administration getting slagged off it, it wasn't a well-rounded representation of, of the way the world works. Right, and, you know, none of Michael Moore's films have, he has brought his own perspective, and he definitely, you know, he brings that forward and all of the, the films, I think, but I mean, even the name Celsius 4111. Seriously, it sounds like a new book and chapter and verse title in some sort of weird science Bible, doesn't it? I mean, that's, it's not catchy, is it?

TW.  No, it No, it's not. It's not very catchy. And it's, you know, it's much drier. So I would say both films are difficult to watch, but for very different reasons. Fahrenheit 911 is really shocking. And it's really loud. And it's really sort of in your face, and I was struck by some of the similarities between Michael Moore in that film and some of the things we've seen and heard from Donald Trump, and I kept sort of thinking about, you know, how Democrats feel about truth, social, and how Republicans feel about Fahrenheit 9/11, and, you know, the sort of overlap, not that anyone would like that comparison. And I'm sure people on both sides of the aisle are not happy about that comparison. But it's not great. You can see why, why people were upset and angry and even angrier when Celsius 4111. And advertisements for it weren't allowed to air. So, the reasoning behind this was because Citizens United was not a bonafide filmmaker they were treated differently, and so Citizens United went to work to remedy this and ended up in front of the Supreme Court in the Citizens United case. So, we can say over and over that context matters. But how many people are really going to take time out of their day, watch both films and step back outside of their political leanings to analyse whether they're materially different and deserving of different treatment? I would say not many. And I don't think it's because we don't care. I think it's a question of time and so, you know, we rely on trusted sources to summarise this for us and you know, where things get complicated? Help us sort of figure out how to make sense of it, and I think a lot of times, that means we have time to hear one side, but not necessarily the other.

SJ.  Yeah, it'll mean, yes and isn't this the problem with social media in a nutshell, that not only do we have a limited amount of time, or attention that we're willing to spend on something, we also prefer to hear the things which are, let's face it, confirming our cognitive biases, George Bush was unpopular, and therefore a film would bash George Bush was wildly popular with people who didn't like George Bush. Sounds like there was a quality difference, too, which is, you know, also helpful. But, but this is the, this is the problem. We're not going to listen to the other side and at this moment in time, and probably more so even than in 2004. Who are trusted sources, who could who would even handedly review these two other than perhaps you and give an even handed commentary on it.  No one, right? Because there's no there's no clicks, there's no likes, there's no viral gross in an even-handed treatment of the subject.

TW.  Yeah, and to be fair, I'm only even handed because I hate most things. So, you know, I can hate I can hate both movies equally. [Steven and Taryn laugh] And that's, you know, makes my job easier. But, you know, backing up, you can see why this felt unfair. You know, even if you don't have time to watch both of these films, you can watch the opening five minutes and Fahrenheit 9/11, and really understand why this would feel unfair to people who hated Fahrenheit 9/11, hated Michael Moore, hated Hillary Clinton; and you know why people felt like there was something not right about this, and that, that we really needed to change how we were making these decisions, and I think it's worth saying, again, this really struck a nerve at the time for a lot of people, and I think, you know, very few people believed it was a balanced documentary, then, and I think even fewer people believe it now. And a lot of people just can't stand Michael Moore fair, unfair. You know, he's a bit what do they say here? It's, he's a bit Marmite, and I think that's more true of him than most other white men. I've come across in my lifetime. And I think you can argue that it was unfair. I think this is a point on which reasonable minds really can differ. But I think people who were really excited about Fahrenheit 9/11 or felt it was some kind of a win. If they understood where it was going, then they might have reconsidered. because in many ways, that was the start of everything that happened next.

SJ.  Yes. Isn't that a horrifying thought? Yeah, you're right. I think everything that you said was absolutely spot on. It's difficult to come up with any, any discussion on that one because he is a very, he's almost as polarising figure as a filmmaker is George Bush was as a president, and let's be honest, George Bush has probably gone through more of a rehabilitation Recently, because of the last Republican incumbent in the White House. He's no longer the most reviled Republican president in history. So, you know, well done. It is really interesting that you, you try and make a political point, but what you do is open the door to other people exploiting, you know, a gap for, you know, exactly the ends, what are the ends that you were trying to prevent? You know, it's, it's unfortunate, and I, we can talk a lot about Citizens United and what did you say at the beginning beginning, you can discuss whether you like it's like the rule or the way that it's applied. I mean, functionally, sometimes there's no difference in disliking one or other of those things, but because the outcomes, but yeah, great summary, Taryn, and, and probably in retrospect, that film was a mistake.

TW.  Yeah, and I think it's important, we just spent almost 20 minutes talking about this film, and the film response, but I think it is important because that's the background against which this decision was made. And, you know, I can't overemphasise how big of a deal. This case was, especially in nerdy lawyer groups in the US, especially amongst lawyers with political ambitions. This sort of was seen at the time and I don't think people fully understood that they sort of understood how much this is going to change things. It was a big deal in whichever side you found yourself on this case really opened up a new door in terms of how political campaigns would be run and won and it was like a whole new world of opportunity had dimensioned up an entirely new dimension.

SJ.  Yeah. and I don't want to jump ahead to the, to the impact that it had. But it seems you know, without spoiling the next two episodes, it seems to have had an impact. well beyond what we have so far discussed, that, in this case, non-filmmakers, who are making politically relevant and potentially biased shows, can't be prevented from showing them any more than somebody from Hollywood is the it doesn't matter whether you're a legitimate filmmaker, that that that seems reasonable if you're going to make a politically biased thing, jury and show it during election season, it shouldn't really matter which side you're on which side you're on, particularly if they're both packed with half-truths and lies. There isn't any quality difference between them, and we could definitely talk about the importance of quality, as well as context. But it's changed things well beyond that, and no, I do you wonder whether that was, that was probably part of the plan, or long because there are some very clever people who were quite good at planning, and many of them are lawyers, Taryn?

TW.  You don’t say? And, you know, just again, is part of the context setting. What was happening in social media at the time? Not very much. So back in 2010. You know we're still talking about a time where there was limited smartphone access and people still largely got their news from newspapers and, yeah, from newspapers and the news, the nightly news of the morning news or whatever it was, and to the extent it wasn't online, we're talking about online newspapers tied to major publications or the radio or as I said, television, you know, that year, Lady Gaga had the most followers on Twitter with 7 million followers. Elon Musk today has nearly 160 million in Donald Trump had over 87 million and, you know, although Facebook had already hit big, only 7% of Americans said they got their news through a social network back then. According to Pew, that number is now north of 50%, and by some estimates, is closer to 70%. That's all to say that in 2010, the options for getting a campaign's message out were very different, in many ways more limited and so, this change felt really significant and felt really significant in terms of what was possible, and it became significant in the social media game to is that opened up.

SJ.  And as you're talking there, I was just thinking that, you know, another change sort of had an impact, right, that that there was Ronald Reagan who got rid of the fairness doctrine in in reporting in the news, I think, many years before this, obviously. And that sort of underscored perhaps, and permitted this sort of debate to open up in the beginning. That you didn't have to be fair on news shows, and you don't have to be fair and balanced, there isn’t an expectation that things should be fair and balanced anymore, whether it was in Fahrenheit 9/11 Celsius 4111, or on social media, and that I think, is also a massive, a massive problem and not one that we need to get into today. But it's like this is error compounded on error, which is getting us to where we are today.

TW.  Yeah, so I think your speed limit example at the beginning of the show is really interesting, because I think we can talk about how English people respond to a speed limit, and how Americans respond to a speed limit, and it depends on the city. Absolutely, it does. But I think my time in the UK has taught me that most English people will, as you said, respond to a 30 mile per hour speed limit by maybe going 35. In the US, you know, that's true for a lot of people, certainly in the Midwest, that's true. But then there are people in Atlanta, and Miami and some parts of New Jersey, who really do see their speed limits as a suggestion and so, I think that's all to say that I think we are profoundly uncomfortable with the idea that we're going to put out a rule, and people are just going to respect it. And we're just going to expect that they get close or get close enough. And so, we want to know exactly what happens when somebody steps over that line. And how are you going to enforce the rule? And what's that going to look like, in a way that I don't think that's necessarily part of what English people expect? I think they're sort of okay with, you know, we'll, we'll figure it out. It'll be okay. Because most people will respect it or come close to it. Does that make sense? 

SJ.  Yeah, I think there is there is a cultural gulf, and I think, you know, I live on the prairies and in Canada, which I think is culturally quite like the Midwest, people tend to be quite nice, and they tend to be relatively rule abiding and it's generally accepted here, whether it's true or not, that if you go no more than 10% over the speed limit on the main highway across the country, you're probably going to be okay, unless somebody's a bit low on their quota for speeding tickets, and so on and so forth. You know, there's expected leeway when you talk about you know, Atlanta and, and parts of New Jersey, etc. I think of the driver is responding to those speed limits by essentially sticking a Don't tread on me, sticker on both bumpers and considering government oppression, because they're limiting how fast they can go on the road in their own damn car. Even if they're, you know, otherwise completely different. So, it does, there is there is just a difference for sure.

TW.  Yeah, and I'm, you know, this episode is not about speed limits, but what I'm getting at really is that if, if the rule is something like, this is the general rule, we expect you to be grown-ups and stay within 10% of it. I think in some societies, and in some parts of US society that can work really well, and then you have other parts where it won't work well. And, and a lot of the times, it's the lawyers who are saying, “Let's push those boundaries. Let's push, push, push, push, push”; and so, I think, you know, a lot of Americans are, are not comfortable getting in the weeds. So, we don't want to say, Well, is this exactly fair and balanced? Is it 50/50? Is it 60/40 Is 60/40, where we get upset is 70/30, where we get upset. And so, we get into this sort of almost like a slippery slope argument, and it makes us uncomfortable talking about context and nuance, and I think we have to, you know, claw some of that back, you know, even if it's with our fingernails, that's how we got here. 

TW.  And backing up a little bit. The court had also determined that corporations are entitled to free speech rights. That's one of the fundamental building blocks to constructing this decision. So, you do that and then you add in this assertion that spending money is a form of speech, we can debate both of these things, by the way, and you can see the direction this is all going, setting context and nuance aside for a second, these are two bright line rules that could have gone the other way. You know, the court could have said, “corporations are not entitled to free speech”, done! “Spending money on campaigns is not speech”, done! We're going to carve out these exceptions, but that's not what they did and so it's all sort of, you know, pushing us in in a very clear direction and, you know, here again, we can see how these competing theories around the justification for protecting free speech or expression play out. If you believe the primary justification is based on individual expression and growth, you're more likely to agree that limiting expenditures and campaigns are problematic. Well, if you instead believe that the primary justification is one based on coimmunity, or a better functioning democracy, you're more likely to believe these limitations are appropriate.

SJ.  Yeah, I mean, that's it. That is the crux of the matter for me and I'm glad we've got there. Because, you know, what I talked about in Canada and in the UK, there are limits, or there are “more or less” limits on what individuals can contribute and there are rules around how organisations like trade unions, which have traditionally always put money into Labour party can contribute and it all has to be very transparent and aboveboard, or it's at least supposed to be very transparent and aboveboard. My perspective is that a democracy can't function in the absence of transparency around how it's financed, a, you know, the ability to give corporations, free speech, and the ability to make donations, a matter of free speech, invites corruption, and my perspective, and I'm not a US citizen, nor a scholar of the Constitution. But it seems to me that that part of the reason for having a free speech clause it is to protect a functioning democracy, given that free free speech is important for a democracy to function. But once you can pay for speech, you no longer have a functioning democracy. It seems to me that the the the court, and again, not a lawyer, not American, not a constitutional scholar, but seems to be the courts have a very narrow view of what free speech was about, rather than its purpose in serving the greater good of the American Enterprise.

TW.  Yeah, I think there are a lot of Americans who feel that way. I think there are a lot of American citizens, scholars and people who vote in the US who would agree with that. I think some disagree and I think a lot of people are somewhere in the middle and you know, they want some reasonable restrictions out there. They're just not exactly sure where that line is, are where that comfort level is. So, we'll get into that more next episode when we look specifically at the practical implications of Citizens United, how social media has changed the game and what this all means for 2024 which is what we're really driving out here. In the meantime, we'll post a transcript of this episode with references on our website.

SJ.  Until next time, I'm Steven Jones,

TW.  and I'm Taryn Ward,

SJ.  thank you for joining us for Breaking the Feed, Social Media: Beyond the Headlines.