Law and the Polarization of American Politics

• Citation: Vol. 25 No. 2
• Publication year: 2010

Georgia State University Law Review

Volume 25 , ,

Article 4

Issue 2 Winter 2008

3-21-2012

Law and the Polarization ofAmerican Politics

Stephen E. Gottlieb

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Recommended Citation

Gottlieb, Stephen E. (2008) "Law and the Polarization ofAmerican Politics," Georgia State University Law Review: Vol. 25: Iss. 2, Article 4.

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LAW AND THE POLARIZATION OF AMERICAN POLITICS

Stephen E. Gottlieb*

I. Complaints About Polarization.......................................341

n. How the Law Changed the Politics..................................343

A. Legal Changes to the Media..............................................344

1. The Shape of the Media................................................344

2. The Law of Irresponsibility...........................................347

3. The Principles of Journalists.........................................354

B. Legal Changes to the Political System...............................355

1. The Nomination System................................................355

2. Safe Seats.....................................................................357

3. Campaign Money.........................................................359

III. Consequences....................................................................366

A. A Perfect Storm...............................................................366

B. The Risks to Democratic Government.............................367

IV. Proposals...........................................................................371

A. Reconstructing Media.....................................................371

B. Reconstructing Campaigns.............................................374

Conclusion.....................................................................................376

There has been considerable concern over the polarization of American politics in recent decades.¹ Bipartisanship seems to many to have hit a low. And the partisanship stands in the way of many

« Professor, Albany Law School; LL.B. Yale Law School; B.A. Princeton Univ. The author would like to thank his research assistants, Martin Bonventre, Chris Kimball, and Sarah Merritt for excellent help in preparing this article..

1. See, e.g., America's Angry Election, economist, Jan. 3,2004, at 7; Gary Dorrien, Book Review, Christian Century, May 24, 2000, at 618 (reviewing Kyle A. Pasewark and Garrett E. Paul, The Emphatic Christian Center: Reforming American Political Practice (1999)); Martin Gottlieb, Hyper-Partisanship No Illusion; Many Forces Selfishly Push Americans Apart, dayton Daily news (Ohio), Jan. 14, 2004, at A6; Arnold Hamilton, Americans Remain Politically Divided in 2004, Dallas Morning News, Jan. 13, 2004; Bill Lambrecht, America's Political Fault Lines Grow Deeper, st. louis post-dispatch, Jan. 11, 2004, at Bl; John Leo, Splitting Society, Not Hairs, U.S. News & World Rep., Dec.15, 2003, at 66; Richard Tomkins, Analysis: Climate of Hate in 2004 Contest, United press InTl, Jan. 14,2004, available at http://westlaw.com (search "Climate of Hate in 2004 Contest" in Westlaw's "All News Plus Wires" database).

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worthy projects. More, political scientists have described the role of sharp political cleavages in the destruction of numerous democracies. Excessive partisanship can be very corrosive.

What is less realized is the role that law has played in creating the partisan environment that many denounce. These changes have involved parallel trends in the law of political campaigns and elections and the law of mass communications. This article brings together many of the changes taking place in the law regulating American politics and identifies the collective impact of those changes.

Two caveats are essential. First, there are many good reasons for the individual changes. There is no mythic golden age to which to return. Politics has been nasty and dirty both before and after these changes. The rules have played favorites, protecting some politicians and certain political ideas, both before and after these changes. At one level they are only a different set of favorites. But since law governs the type of politics we have, it is important to see what it is doing and how.

Second, I do not wish to be understood as claiming that other factors have had no impact on the polarization in American politics. It is too early to know how much the recent presidential campaign, for example, may change American politics. Nor do I attempt in these pages to assess the shares that might be assigned to different causes. But this article does assert that any attempt to understand what has taken place without identifying the relevant legal changes is drastically incomplete.

2. See Nancy Bermeo, Ordinary People in Extraordinary Times: The Citizenry and the Breakdown of Democracy (2003); The Breakdown of Democratic Regimes (Juan J. Linz & Alfred Stepan, eds., 1984).

3. Compare the wild allegations of Senator Joseph McCarthy and others in the 1950s, see 3 Eric Barnouw, The Image Empire: A History of Broadcasting in the United States 8-21, 37-40, 46-56 (1970); William Manchester, The Glory and the Dream: a Narrative History of America 1932-1972, 489-99, 520-30 (1975), with the impeachment efforts against presidents of both parties later in the century. There has been a recent outpouring of scholarship on the McCarthy era. See generally David Caute, The Great Fear (1978); Martin H. Redish, The Logic of Persecution: Free Expression and the McCarthy Era 140 (2005); Ellen Schrecker, Many Are the Crimes (1998). The overbreadth of the blacklists is evident in the text. See am. Bus. consultants, red Channels 9 (1950); 2 Erik Barnouw, The Golden Web: A History of Broadcasting in the United States 266-67 (1968).

2008] LAW AND POLARIZATION OF POLITICS 341

Part II will describe changes in the law. Part IIA will examine changes to media law, including changes in federal licensing and liability rules and will conclude with discussion of parallel changes in journalists' practices. Part ITB will describe changes in the law of political campaigns, including nominations, districting, and financial rules.⁴

Part III brings these together and describes relevant warnings from other disciplines about the impact on American democracy.⁵ Part IV makes suggestions for the law of mass communications and the law of election campaigns.⁶

I. Complaints About Polarization

The report of the Pew Research Center For The People & The Press found "[t]he extraordinary spirit of national unity that followed the calamitous events of Sept. 11, 2001 has dissolved amid rising polarization and anger."⁷ And the report found the country "further apart than ever in its political values."⁸

Andrew Kohut, director of Pew, told John Leo that "the anger level is so high that if the demonstrators of 1968 had felt like this, 'there would have been gunfire in the streets.'"⁹ Compromise has been demeaned linguistically:

The middle ground, treasured as the key to every election, has dubious associations. Words such as opportunistic, lukewarm, compromising and vacuous cling to it. Populist political

4. See infra Part II.A-B.

5. Id.

6. See infra Part IV.

7. Andrew Kohut, Foreword to Pew Research Center for the People and the Press, The 2004 Political Landscape: Evenly Divided and Increasingly Polarized (2003), available at http://people-press.org/repoits/pdf7196.pdf.

8. Id. at 7.

9. Leo, supra note 1, at 66.

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commentator Jim Hightower observes that the middle of the road is home to yellow stripes and dead armadillos.¹⁰

Gary Dorrien describes the loss of an appealing and principled Christian middle ground, leaving the religious in the hands of a variety of radical faiths. "Maverick" congressmen in this polarized political world are Republicans whose support for Bush reached only 96%, and ticket splitting at the polls has declined.¹¹ Richard Tomkins reported the view of the experts he spoke with that "[t]he biggest impact of a polarized United States . . . would be on Capitol Hill where changing party demographics and geographies have contributed to hardening partisanship on and off the floor."¹²

The Houston Chronicle reported that a Zogby poll "portray[ed] not only separate nations—the blue states of the upper, outer rim that Al Gore won in 2000 and the red states of the South and heartland won by President Bush—but also distinct moral world views."¹³ And John White wrote in a much discussed essay, "Not since the Civil War and post-Reconstruction period has the country been so divided. As we enter what promises to be a very contentious 2004 presidential contest, George W. Bush and his Democratic challenger will be campaigning in two different, yet parallel, universes."¹⁴

The picture painted by these and other writers display an American politics very much changed from the tweedledum-tweedledee politics of the 1950s and early 1960s that Goldwater and many in his generation decried. So it seems that we have finally gotten what we wished for though many now dislike the results. The question is how. Some blame the Bush Administration¹⁵ or the Democrats¹⁶ for

10. Dorrien, supra note 1, at 618.

11. Gottlieb, supra note 1, at A6.

12. Tomkins, supra note 1.

13. Mark O'Keefe, A Divide Forms When Politics Battles Religion, THE houston chron., Feb. 14, 2004, Religion, at 1.

14. John Kenneth White, E Pluribus Duo: Red State vs. Blue State America: An Analysis of the O'Leary Report/Zogby International Values Poll 2 (2003)...