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«WILSON.31-3 3/10/2010 10:11:19 AM BEHAVIORAL DECISION THEORY AND IMPLICATIONS FOR THE SUPREME COURT’S CAMPAIGN FINANCE JURISPRUDENCE Molly J. ...»

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WILSON.31-3 3/10/2010 10:11:19 AM

BEHAVIORAL DECISION THEORY AND

IMPLICATIONS FOR THE SUPREME COURT’S

CAMPAIGN FINANCE JURISPRUDENCE

Molly J. Walker Wilson 

ABSTRACT

America stands at a moment in history when advances in the

understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable.

Meanwhile, the Supreme Court has characterized campaign money as “speech” and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures.

Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or the appearance of corruption. However, behavioral decision research and theory provide strong support for the notion that expenditures do corrupt the political process, because there is a nexus between campaign spending, strategic manipulation, and sub-optimal voting decisions. This Article applies behavioral research and theory to advance a new definition of “corruption,” arguing that there is a vital governmental interest in regulating campaign expenditures in order to limit manipulative campaign tactics and to reduce the existing inequities in access to channels of communication and persuasion.

 Assistant Professor of Law, Saint Louis University School of Law. J.D., University of Virginia; Ph.D., University of Virginia. I am grateful to the following people for providing feedback at various stages in this project: John Monahan, Jeffrey Rachlinski, Greg Mitchell, David Sloss, Jeanne Murray Walker, Eric Miller, and E. Daniel Larkin. I also benefited from the comments of participants at the Saint Louis School of Law Summer Workshop Series.

WILSON.31-3 3/10/2010 10:11:19 AM 680 CARDOZO LAW REVIEW [Vol. 31:3

INTRODUCTION

Decision theorists have been writing for several decades about the potential for individuals to make sub-optimal choices as a result of particular features of human decision-making. Specifically, people do not behave like the “rational actor” depicted in law-and-economic theory because of the influence of biases and heuristics (cognitive shortcuts) on mental processes. Jon Hanson and Douglas Kysar have argued that certain actors are motivated by economic incentives to cultivate strategies designed to exploit these biases for gain. 1 Moreover, Hanson and Kysar claim that this form of strategic behavior is inevitable in the marketplace, because any entity that declined to exploit consumer biases would fail to be competitive and would suffer a devastating market share loss. 2 In the political marketplace, candidates and political parties, no less than corporate actors, have overwhelming incentives to manipulate voter decision-making by using knowledge about cognitive biases. But taking advantage of the full arsenal of tactics requires a great deal of money. Political consultants, polling, and targeting efforts are all expensive, and there is some evidence that holding other factors constant, the candidate who spends the most on strategic communication with the electorate is ultimately most likely to be successful at the polls.

The Supreme Court has consistently struck down legislative attempts to limit campaign spending on First Amendment grounds. The Court’s jurisprudence assumes that regulating expenditures is tantamount to regulating speech, and that there is no sufficiently compelling governmental interest justifying the interference with the right of free speech. This supposition discounts the role of money in developing strategies for packaging communication in ways that ultimately do not serve to inform the electorate, but rather to capitalize upon certain “irrationalities” of human decision-making. Interestingly, the Court has allowed limitations on contributions in the interest of preventing actual and apparent quid pro quo corruption. This Article argues for a new conceptualization of “corruption,” applying social science research and theory to reveal the potential for campaign communication to manipulate—rather than inform—the electorate.

1 Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74 N.Y.U. L. REV. 630 (1999).

2 Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV.

1471, 1536 (1998); see also Hanson, supra note 1, at 635, 637 (explaining that those who have the motivation and the resources are able to “influence the context in which the decisions are made” and ultimately can “shape people’s behavior in desired directions”).

WILSON.31-3 3/10/2010 10:11:19 AM 2010] BDT & CAMPAIGN FINANCE LAW 681 Empirical psychological research demonstrates that voters rely upon heuristics, or cognitive shortcuts, in determining vote choice. 3 Mental shortcuts are prevalent during the voting decision process because of the difficulty in obtaining perfect information and the low expected yield for any one vote cast. 4 These features of the voting context make voters particularly vulnerable to manipulation by political candidates and parties. 5 Meanwhile, political candidates have tremendous incentives to engage in vote-maximizing tactics. 6 The competition of the political marketplace, along with the potential expected gain from utilizing exploitative campaign tactics create the perfect storm, virtually assuring financial commitment to innovative techniques that capitalize on human irrationalities. 7 In theory, a wide array of biases and heuristics could prove fertile ground for propaganda efforts. However, several are particularly 3 Social science research indicates that voters do not behave “rationally” when making voting decisions. See, e.g., Elizabeth Garrett & Daniel A. Smith, Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy, 4 ELECTION L.J. 295, 296 (2005); see also Anita S. Krishnakumar, Towards a Madisonian, Interest-Group-Based, Approach to Lobbying Regulation, 58 ALA. L. REV. 513 (2007). For the proposition that voters rely upon cues or heuristics and do not gain all relevant information, see ARTHUR LUPIA & MATHEW D.





MCCUBBINS, THE DEMOCRATIC DILEMMA: CAN CITIZENS LEARN WHAT THEY NEED TO KNOW?

(1998); Christopher S. Elmendorf, Representation Reinforcement Through Advisory Commissions: The Case of Election Law, 80 N.Y.U. L. REV. 1366, 1424-25 (2005); Elizabeth Garrett, The William J. Brennan Lecture in Constitutional Law: The Future of Campaign Finance Reform Laws in the Courts and in Congress, 27 OKLA. CITY U. L. REV. 665, 678 (2002); Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and “Disclosure Plus,” 50 UCLA L. REV. 1141 (2003); James H. Kuklinski & Paul J.

Quirk, Reconsidering the Rational Public: Cognition, Heuristics, and Mass Opinion, in ELEMENTS OF REASON: COGNITION, CHOICE, AND THE BOUNDS OF RATIONALITY 153 (Arthur Lupia et al. eds., 2000); David Schleicher, Irrational Voters, Rational Voting, 7 ELECTION L.J.

149, 154 (2008).

4 See Krishnakumar, supra note 3, at 537.

5 See William T. Bianco, Different Paths to the Same Result: Rational Choice, Political Psychology, and Impression Formation in Campaigns, 42 AM. J. POL. SCI. 1061 (1998); see also Larry M. Bartels, Uninformed Votes: Information Effects in Presidential Elections, 40 AM. J.

POLI. SCI. 194 (1996); Thomas E. Nelson & Zoe M. Oxley, Issue Framing Effects on Belief Importance and Opinion, 61 J. POL. 1040, 1045 (1999); Thomas E. Nelson et al., Toward a Psychology of Framing Effects, 19 POL. BEHAV. 221, 226 (1997); Brian F. Schaffner, Priming Gender: Campaigning on Women’s Issues in U.S. Senate Elections, 49 AM. J. POLI. SCI. 803, 803 (2005) (explaining that because they tend to be closer to the views of women on these issues, Democratic candidates who decide to target women are more likely to use their campaigns to prime women’s issues while Republicans will attempt to draw attention away from those topics toward other issues).

6 Shanto Iyengar & Adam F. Simon, New Perspectives and Evidence on Political Communications and Campaign Effects, 51 ANN. REV. PSYCHOL. 149, 150 (2000).

7 Many have been critical of political actors who engage in tactics blatantly designed to capitalize on the irrationalities of the public, but the real fault lies not with the individual or party actors, but with the structures that make manipulation so prevalent. See Reza DiBadj, Reconceiving the Firm, 26 CARDOZO L. REV. 1459, 1461 (2005) (“[T]he problem may not be with government per se, but with the structures that allow private parties to manipulate it.” (referencing AMITAI ETZIONI, THE MORAL DIMENSION: TOWARD A NEW ECONOMICS 217 (1988)).

WILSON.31-3 3/10/2010 10:11:19 AM

682 CARDOZO LAW REVIEW [Vol. 31:3

relevant in the political campaign context. One bias that has been widely exploited by politicians is framing. Research on framing reveals that the manner in which a choice is presented can influence the decision-maker’s preference. 8 The potential for exploitation through the use of frames is significant because framing can be a simple matter of strategic word choice and can lead individuals to make a choice that differs substantially from their initial preference. 9 Commentators have noted that the strategic use of frames can have important effects on the attitudes and behaviors of a target. 10 Priming is another bias-based strategy which, like framing, can be used to influence attitudes and decisions. 11 Also known as “agendasetting,” political-campaign priming leads voters to consider particular issues to be particularly important by presenting these issues repeatedly in a variety of formats. 12 The availability heuristic is related to priming in that both can influence the relative ordering of voters’ priorities. By portraying certain issues, events, or risks repeatedly and in vivid terms, candidates can assure that these issues, events, or risks will become cognitively “available” to voters and will be weighted heavily during the vote-decision process. 13 Finally, attitudes or impressions created 8 See generally Eldar Sharfir, Prospect Theory and Political Analysis: A Psychological Perspective, 13 POL. PSYCHOL. 311, 313-14 (1992) (providing a definition of framing). For early discussions of framing, see ERVING GOFFMAN, FRAME ANALYSIS: AN ESSAY ON THE ORGANIZATION OF EXPERIENCE (1974); Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 SCIENCE 453 (1981).

9 See Richard H. Thaler, Mental Accounting Matters, in CHOICES, VALUES, AND FRAMES 241, 244 (Daniel Kahneman & Amos Tversky eds., 2000); Tversky & Kahneman, supra note 8, at 457-58.

10 James N. Druckman, On the Limits of Framing Effects: Who Can Frame?, 63 J. POL. 1041, 1059 (2001) (finding that “the results from both experiments suggest that a credible source can use a frame to alter the perceived importance of different considerations, and this, in turn, can change overall opinion,” but qualifying this assertion with the caveat that the source must be credible); Donald R. Kinder & Don Herzog, Democratic Discussion, in RECONSIDERING THE DEMOCRATIC PUBLIC 347 (George E. Marcus & Russell L. Hanson eds., 1993).

11 See LUPIA & MCCUBBINS, supra note 3, at 3 (distinguishing priming from framing).

12 See Schaffner, supra note 5, at 805-07 (discussing the ways in which candidates increase the salience or weight assigned to various issues); see also DAVID C. BARKER, RUSHED TO JUDGMENT: TALK RADIO, PERSUASION, AND AMERICAN POLITICAL BEHAVIOR 10-11 (2002);

SHANTO IYENGAR & DONALD KINDER, NEWS THAT MATTERS (1987); DARRELL WEST, AIR WARS: TELEVISION ADVERTISING IN ELECTION CAMPAIGNS, 1952-2000 (3d ed. 2001); James N.

Druckman et al., Candidate Strategies to Prime Issues and Image, 66 J. POL. 1180, 1181 (2004);

James N. Druckman & Justin W. Holmes, Does Presidential Rhetoric Matter? Priming and Presidential Approval, 34 PRESIDENTIAL STUD. Q. 755-78 (2004); James N. Druckman, Priming the Vote: Campaign Effects in a U.S. Senate Election, 25 POL. PSYCHOL. 577, 590 (2004); Frank Pasquale, Reclaiming Egalitarianism in the Political Theory of Campaign Finance Reform, 2008 U. ILL. L. REV. 599.

13 See Molly J. Walker Wilson & Megan P. Fuchs, Publicity, Pressure, and Environmental Legislation: The Untold Story of Availability Campaigns, 30 CARDOZO L. REV. 2147, 2149 (2009) (“The availability heuristic is a widely-used mental shortcut that leads people to assign a higher likelihood to events that are readily ‘available’—events that are particularly likely to come to mind due to their vividness, recency, or frequency.”).



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