Americans in Florida and elsewhere are rightly concerned about the enormous rise in money spent on political campaigns. According to the Center for Public Integrity, parties, candidates and outside donors spent nearly $100 million on the Florida governor’s race this year between Rick Scott and Charlie Crist.
Democrats, who have fewer ties to the very rich, lament legal rulings that started with the Supreme Court’s 2010 Citizens United decision, with Sen. Elizabeth Warren notably complaining that rich conservatives have “rigged” the system. But instead of the usual suggestions to impose more restraints here and there on rich spenders — all of which are likely to be viewed skeptically by today’s Supreme Court — the nation should consider a bolder approach: a blanket ban on TV campaign ads.
The First Amendment sets forth an unfettered right to “freedom of speech.” The current Supreme Court reasons that freedom of speech in an election means a “marketplace of ideas,” which in turn may include unlimited campaigning by both corporations and wealthy outside donors. In such a free marketplace, presumably, intelligent citizens pick and choose which candidates to vote for.
The progressive counterargument is, of course, that a lack of regulation means too much speaking — in effect, too many TV ads — by a handful of wealthy interests.
The essence of this critique must be that American voters generally cannot be trusted to pick out the wheat from the chaff in an open marketplace of ideas. In Florida this year, for example, supporters of Democrat Charlie Crist complained that their candidate lost because of a final burst of personal spending by Rick Scott on TV ads.
Let’s follow this reasoning. If TV ads unfairly influence voters, the most effective solution would be to regulate them directly. The history of indirect legal restraints on elections has led to a series of disappointments. Watergate-era laws on donations to candidates pushed money to political action committees. Laws regulating them shifted influence to independent 501(c) groups and to individual billionaires, such as the Republican Koch Brothers and Democrat Tom Steyer in this year’s campaign.
The most effective way to restrain the unfair influence of TV ads would be, quite simply, to ban them. A number of other democratic nations, including Switzerland, prohibit TV advertisements for political campaigns. The idea is that intelligent voters should make their decisions through other, more substantive, sources of information.
Yes, a TV ban would clash with our First Amendment, and thus would necessitate a new constitutional amendment. But a ban would be a more straightforward and honest exception than the hodge-podge of proposals that Democrats typically suggest. The amendment could be something as simple as this: “During an election year, no television advertisement may state the name or show the image of any candidate.”
Yes, we would still have Internet ads (let’s hope the sound stays off). And yes, we would get more “issue” TV ads, such as those saying, “We need a governor who will bring jobs to our state.” But if we truly believe that voters are too impressionable, a change that required them to think for themselves — “I wonder which candidate would indeed help create more jobs?” — would be a good thing.
Voters would be encouraged to do a little studying before making up their minds. This bold but simple step might be the best thing to encourage voters to deliberate, as intelligent participants in a democratic nation.
Paul Boudreaux teaches the law of legislation at Stetson University College of Law in Gulfport and Tampa.