The first is that “the regulated system of required disclosure in close to real time of campaign funding has broken down.”
Since 2010, Pildes argued,
there’s been a dramatic increase in the role of outside groups funded by nondisclosed money — “dark money.” When the Supreme Court decided Citizens United, it clearly envisioned that the disclosure laws would be updated to capture newer sources of money. But that has not happened.
Second:
During the heyday of the major broadcast networks, there was at least a widely shared source of common information and facts. That provided a bulwark against the effectiveness of efforts to influence elections by manipulating information and views in less visible ways. With media fragmentation and the rise of first cable television, then social media, more people live in epistemic silos. The collapse of trusted sources of widely shared knowledge about facts, candidates and campaigns means that these dark-money efforts to propagate misleading information can be more effective.
Third:
The cost of reaching voters to influence public opinion has gone way down, while the number of wealthy individuals seeking to do so seems to be going up. In real dollar terms, campaign spending now is several times more than in the 1980s. Put that together with the limits on disclosure and the fragmented media environment, and I think we are probably at the lowest point since at least the 1960s in terms of the role that less transparent efforts to influence public opinion are playing.
Bob Bauer, a colleague of Pildes’s at N.Y.U., has a different but complementary list. Asked whether there is more secrecy and false information now than there was in the past, Bauer replied by email to make three points:
First, in a deeply polarized politics in which the opposition is more the dreaded enemy than just a political opponent, ethical or other limits that might constrain do-what-it-takes politics loosen considerably. Winning is always the urgent objective; in what is deemed an existential conflict, it assumes the character of a moral imperative. All sorts of excesses, like the worst, most brazen lying, become easier to justify if a loss is perceived as unbearable.
Second, the more effective the methods for putting one over on the voters, the more irresistible it is to resort to them to win. And this is all the more the case if the fear is that the opposition will do what you don’t. We should expect a race to the bottom in the competitive use of A.I. and other sophisticated techniques of deception.
Third, in a world of weaponized politics, when losing can lead to retribution, including criminal prosecution, there are powerful incentives to hide identities and funding sources.
In looking at the history of sleazy campaign tactics, one thing stands out: A significant share of them happened in South Carolina.
The Republican political mastermind Lee Atwater notoriously ran a push poll intended to attack an opponent as opposed to gain understanding of the electorate, while managing Carroll Campbell’s House campaign against Max Heller, the Jewish mayor of Greenville, S.C. In the overwhelmingly Christian Fourth District, Atwater’s poll asked: “Would you vote for a Jew who did not believe in the Lord Jesus Christ?”
In 2000, when George W. Bush and John McCain were battling each other in the Republican primary, South Carolina voters received calls asking whether they would “be more likely or less likely to vote for John McCain for president if … he had fathered an illegitimate Black child?” Leaflets posing the same question began to appear on cars parked outside senior centers and debate venues.
In fact, McCain and his wife had adopted a girl, then a young child, from Bangladesh.
David Pozen, a Columbia law professor, has his own list of three key points:
First is the so-called dark-money problem, where the sources of campaign spending are hidden from the public. The bulk of this secretive spending now flows through 501(c)(4) “social welfare” organizations, which do not have to disclose their donors, and through super PACs, which do have to disclose their donors but may solicit funds from shell companies or other opaque entities.
Second is the misinformation problem, where voters are exposed to false or inaccurate claims. The rise of the internet, social media and now A.I. has made it far easier to produce deceptive content and to distribute it at scale. This problem, too, is arguably worse than ever, but there is no legislative fix in sight.
Third is the problem of money in politics, where wealthy actors spend enormous sums to influence elections. The Supreme Court has enabled this problem through a series of decisions striking down state and federal campaign finance limits under the First Amendment.
The money problem, Pozen contended,
is also arguably worse than ever — and is, in some ways, the most fundamental and frustrating of the three. It is fundamental because multimillion-dollar election expenditures turn politics into a gift economy and corrupt the entire system of representative government.
One of the fastest-growing industries in politics now is the deployment of paid “influencers” with large social media followings or high credibility, or both, in key constituencies, such as Latino voters, MAGA voters, liberals, African Americans and rural voters.
