Wednesday, August 14, 2013

From the Empirical Archives: Policies of Polarization

Policies of Polarization
Ahmed M. Soliman
Originally published in the February issue of Empirical

With the 2012 election now behind us, the country is focused on the importance of uniting again behind our president, and hopefully changing the tone in Washington. It is what we ultimately do as Americans: we aspire to unite in strength and resolve. In fact, it is because our aspiration to solve problems is so innately woven into our DNA as Americans that presidential candidates often make “bridge building” and “changing Washington” a common theme in their campaigns. George W. Bush campaigned on it in 2000, as did Barack Obama in 2008 and Mitt Romney in 2012.

In 2012, Romney pointed out that Obama had promised to change Washington, but failed to do so because, he argued, Obama was a failed president. The hard truth, however, is that times have changed, and the task of uniting Americans in Washington has become about as feasible as herding mice. But, contrary to the assertions of Mitt Romney and others during the recent campaign, it is not the former community organizer’s fault that Washington remains so divided. Nor was it George Bush’s fault. The fact of the matter is that the divide in America today exists as a matter of public policy, literally enshrined in our modern American law.

One who wishes to understand why America’s divisions have become so entrenched needs only to examine two critical–and conservative ideologically-driven–policy decisions that have fully fermented in the last 25 years: (1) President Reagan’s elimination of the Fairness Doctrine; and (2) conservative Supreme Court Justices’ refusal to rein in gerrymandering.

The first of the two, the Fairness Doctrine, was a Federal Communications Commission (FCC ) regulation that required broadcasters to provide news and issues-oriented programming that fairly presented opposing viewpoints on controversial subjects. The doctrine’s genesis was the Radio Act of 1927, created to regulate competing signals on the finite radio frequency spectrum. The chief proponent of the bill, then-Secretary of Commerce Herbert Hoover, who would later become President Hoover, argued that regulating a limited number of broadcast licenses and requiring the licensees to provide current events programming with opposing points of view satisfied the First Amendment because the freedom of speech listener is paramount over the freedom of the speech maker. 

This concept was upheld as passing First Amendment muster by the Supreme Court in the 1943 decision of National Broadcasting Co. v. United States. The National Broadcasting Co. decision paved the way for the FCC to create the modern Fairness Doctrine in 1949. Specifically, the FCC required broadcast media licensees to: (1) provide coverage of vitally important and controversial issues of interest in the community served by licensees; and (2) provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues.

The Fairness Doctrine was the key regulation of news broadcasters for nearly forty years, until its demise in 1989, when President Ronald Reagan’s tidal wave of deregulation washed it away. The official removal of the Fairness Doctrine began in 1987, when the FCC repealed the doctrine as contrary to the public interest. The Democratic-controlled Congress then passed a law reversing the FCC ruling. However, President Reagan vetoed that law in 1989, despite the fact that the Supreme Court had again ruled the Fairness Doctrine to be constitutional in Red Lion Broadcasting Co. v. FCC.

The elimination of the Fairness Doctrine at the conclusion of the 1980s paved the way for a slew of unchallenged right-wing broadcasts on radio and on television throughout the 1990s. They included the program of Rush Limbaugh on AM radio, and the subsequent introduction of Fox News on cable television. The ratings bonanza of those media efforts soon caused another television news network to follow suit and abandon its self-imposed commitment to a fair presentation of both sides of controversial issues: MSNBC shifted toward an unchallenged liberal presentation of current events.

In presenting only one perspective on any given issue discussed in the new kind of broadcast news, “news channels” often leave out information that their audiences deem unfavorable as well as challenges to inaccurate information. This causes the audience of one channel to base their judgments on a myriad of issues upon a different set of perceived facts than those presented to an audience of another channel. The subsequent result upon public perceptions of current events and issues has been catastrophic.

It has left much of the country in a grossly misinformed bubble, and severely polarized. Whereas, in the past, Americans had different opinions based on the same set of facts, the current trend is toward large groups of Americans having different opinions and different understandings of the facts. As a consequence, each group often accuses the members of the other group of “lying” in their factual assertions during debate, or being severely “stupid.”

For example, in a December 2010 World Public poll, a whopping 63% of those who watched Fox News incorrectly believed that President Barack Obama was not born in the United States or that it was unclear whether he was. Only 39% of MSNBC viewers were operating under that same incorrect information. Additionally, an incredibly high 63% of Fox News viewers also incorrectly believed that President Obama’s economic stimulus package in 2009 did not include any tax cuts, whereas only 34% of MSNBC viewers believed the same thing. Likewise, 60% of MSNBC viewers erroneously believed that the US Chamber of Commerce was spending foreign money to back Republican candidates in the 2010 Congressional elections, whereas only 23% of Fox News viewers were under the same misguided impression. As the late Sen. Daniel Patrick Moynihan once said, “Everyone is entitled to their own opinions, but they are not entitled to their own facts.” At least they didn’t used to be.

The primary argument of opponents of the Fairness Doctrine is that it chills coverage, rather than expands it. Specifically, they argue that the burden of finding and airing an opposing point of view for every issue they would like to present has proven to be cumbersome and, as a result, many broadcasters end up abandoning or avoiding coverage of issues altogether. This arguments, however, fails scrutiny in light of the fact that: (1) the Fairness Doctrine was successfully practiced for decades; and (2) cable news networks such as CNN continue to act under a self-imposed fairness doctrine, and have had no apparent trouble in covering the same issues that their competitors cover. In fact, as the polling cited has already shown, without the Fairness Doctrine, there is a chilling effect on the public’s understanding of facts and issues. 

The Fairness Doctrine did not take away from free speech. To the contrary, it ensured speech of multiple perspectives on any given issue, thereby painting a complete and accurate picture. Take, for example, television coverage of two controversial rulings from the United States Supreme Court: whether the state can execute individuals who were under 18 years of age at the time of their capital crimes, and whether a law prohibiting consenting male adults from engaging in acts of sodomy is constitutional.

Following the Court’s citation to foreign law in Roper and Lawrence, many conservatives in the media who did not approve of the Court’s opinions led the public to believe that such a use of foreign law is unprecedented (therefore implying that the basis of the rulings were invalid).

One such incident was when Sean Hannity of Fox News said that what concerns him most about the Roper (or Lawrence) decision is “Justice Kennedy in particular, he’s citing in this particular case foreign law, which is almost unprecedented.”

Hannity’s like-minded guest responded to Hannity’s statement, saying, “It is unprecedented... It’s unprecedented in terms of citing law, or using a law for basis of overturning a state law as it’s done here… In [Lawrence] they actually relied on foreign law.” Of course, nothing could be further from the truth. The US Supreme Court has repeatedly cited foreign sources of law in various rulings since the birth of the nation.

However, the opposing side of the issue was not presented, therefore Hannity went uncorrected, and Hannity’s viewers were left misinformed as well. In this country, we have freedom of any speech including at times inaccurate and misleading speech but we now have situations in which the inaccurate or misleading speech is disguised and aired as a factually correct “current events program” that is aired on a “news channel” that labels itself as “fair and balanced.”  Such branding explains why people believe the assertions of opinion program hosts to be factually true, even when they are not.

Despite the controversial debate surrounding the possible reinstatement of the Fairness Doctrine, the political reality is that the doctrine currently has little chance of being implemented again. President Obama and the Republican majority in the House of Representatives oppose reinstating the Fairness Doctrine for two primary reasons: (1) the government can’t regulate cable channels or the Internet the way regulating the limited radio frequency spectrum could be justified; and (2) reinstating the Fairness Doctrine would be painted as a pro-active attempt at quashing freedom of speech. In short, new media (including the Internet) has gotten used to being as partisan as it wants, and it’s impossible to put toothpaste back in the tube.

The second–and equally damaging–law that makes it nearly impossible to unite Washington is gerrymandering. Gerrymandering is defined as the practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength. The average American does not realize that Congressional districts are drawn by state legislatures. The legislatures of each state must use the changes in state populations and subsequent shifting number of seats that any given state will have in Congress, as demonstrated by US Census information, to conduct the redistricting.

As a state gains or loses seats, the Congressional districts of that state must be redrawn. The party in control of the state legislature uses gerrymandering to draw the districts in such a way that the incumbents of their party represent as many conservative, or liberal, neighborhoods as possible. This not only helps to ensure the reelection of the incumbent candidate, it also means that the Republican or Democratic candidate no longer has to consider the demands of a moderate or diverse constituency; they need only represent the interests of an ideologically monotone constituency. In fact, compromising with the opposing party would yield no reward among the representative’s constituency, many of whom are living in the bubble of their partisan news media, and therefore entrenched in their positions.

Although the practice of gerrymandering has been challenged in the courts, the conservative justices of the Supreme Court have refused to end it. In Vieth v. Jubelirer, the Court was faced with a case in which the 2000 Census reduced the number of congressional seats in Pennsylvania from 21 to 19 and the Republican dominated state legislature assumed the task of drawing a new districting map. The plan was designed to give Republicans 13 of the 19 congressional seats, even though the two political parties shared almost equal support among the overall Pennsylvania electorate.

The negative consequence of such an act was not only political. It was also legally damaging to the non Republican constituency, whose votes were diluted by being intentionally placed in a district in which they were a minority voice. Opponents of the move saw that as a violation of the Equal Protection Clause of the US Constitution.

The Supreme Court disagreed on how such cases should be adjudicated, and whether they were even justiciable. The conservative majority ruled that gerrymandering is a political issue best left to the political branches, and not justiciable by the Court. In dissent, Justice Stevens had proposed a legal test for what qualifies as illegal gerrymandering. Stevens proposed to examine whether partisan considerations dominate over neutral considerations. If there is no identifiable neutral criterion used that can justify the district lines, and if the only possible explanation for the district’s bizarre shape is a desire to increase party strength, there is a valid partisan gerrymandering claim under the Equal Protection Clause of the US Constitution. Justice Scalia, however, successfully convinced the majority of the Court that Stevens’ test was not practical, because, unlike a racial gerrymandering case, political gerrymandering cases are not apparent on their face (i.e. political leanings are not as judicially discoverable as race is). Justices Rehnquist, O’Connell and Thomas joined Scalia in his ruling.

More recently, Democrats have cited gerrymandering as the reason why, in the 2012 election, the House of Representatives remained in the control of the Republicans, even though Barack Obama was able to win the presidency. Speaker of the House John Boehner said that the election results showed that the American people did not want to have any taxes raised. But such an interpretation would require one to believe that the American electorate is, as NBC broadcaster Tom Brokaw described it, “schizophrenic,” in that they vote for a House of Representatives that will not raise taxes on the wealthy, while simultaneously voting for a President that will.

Such an interpretation of the election results fails scrutiny. The inconsistent voting is more indicative of how difficult gerrymandering has made unseating an incumbent Congressperson. Nonetheless, the effects of the election are undeniable: a polarized Congress in which each representative has an ideologically-strict constituency that would vote them out of office for compromising their ideals. While lameduck sessions–which lack the political consequence of regular sessions–provide rare opportunities for compromise, they do not last long.

But despite the consequences of these two policies, changing Washington is still possible. There’s a role for the American citizen to play in effecting change. Specifically, the American citizen can foster a public discourse that moves people toward common understandings by seeking legislative reform of gerrymandering, and boycotting networks such as Fox News and MSNBC for being nothing more than echo chambers. Indeed, the American citizen can use the same incentive to eliminate partisan programming that created them in the first place: ratings. If people stop tuning in to Fox News and MSNBC, those networks will quickly rethink their platform, and hopefully return to the journalistic values that CNN still adheres to.

Unless and until that happens, President Obama will be faced with public opinion that is deeply divided thanks to the partisan and unfair presentations of our media, and a Congress that has little incentive to compromise due to the legally-sanctioned practice of gerrymandering. It is a climate that other Presidents including the Roosevelts, Kennedy and Reagan did not have to contend with. It makes the task of uniting Washington under a common purpose extremely difficult.

In fact, if President Obama is to pull it off, he can only do it in the same way that the famed Pied Piper finally found a way to herd his mice: he will have to somehow find a tune that everyone can get behind, despite all the challenges that are memorialized in our current public policy. One can only hope that he, and future presidents, finds the right tune.

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