When Brands Drive Out Truth: Law Professor Ciara Torres-Spelliscy on Political Brands, Fake News, Dark Money, and Quid Pro Quos

Law professor Ciara Torres-Spelliscy has a provocative and vitally important new book called Political Brands that documents the erosion of trust and truth in political discourse, a kind of Gresham’s Law of information, with fake news driving out genuine facts. In an interview, Professor Torres-Spelliscy talked about the Supreme Court decisions that have led to this deterioration of trust in authorities and how branding has eclipsed the kind of information that makes thoughtful, constructive policies more difficult to develop.

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You define branding as “the process of purposefully repeating a word, concept or logo until it gets stuck in the minds of the public.” We think of branding for consumer products. How has that, to use your word “infected” political communications?

Many politicians over the years have used branding techniques, like repetition, to sell themselves to voters during an election or to sell policies between elections. Before Trump, the last great political brander was Barack Obama, especially during his 2008 run for the presidency where he focused on themes of “hope and change.” Obama’s branding was also picked up in Shepard Fairey’s wood-block-style viral poster of Obama’s bust complete with the word HOPE below it. And Obama’s “O” logo also distinguished his candidacy from others in the 2008 field as well as those who had run for the presidency before him. His theme of hope was also circulated by young voters who shared the Will.i.am video “Yes we can” far and wide.

Another example of this branding techniques infecting politics that didn’t make it into this book is the rebranding of torture during the Bush administration to be “enhanced interrogation techniques.” By insisting that “torture” wasn’t the policy the Bush administration made it more difficult for human rights advocates to object to what a lay person would consider torture, like waterboarding detainees.

The biggest user of this commercial branding technique today is clearly President Trump. He likely learned the power of commercial branding techniques as a businessman and then deployed them in politics to great effect. One way that he downplays or dismisses things that are inconvenient or potentially harmful to him, is to brand those threats as a “hoax.” Trump has done this with things as varied as the Mueller investigation, Stormy Daniels’ accusations, and most recently the coronavirus. Despite the attempts to rebrand by the president, the Mueller investigation netted 34 indictments. The pay-off of Stormy Daniels landed Michael Cohen in jail. And the day I wrote this (March 12, 2020), the World Health Organization reported that there were over 124,000 cases of coronavirus worldwide. None of those things are what an objective observer would call a “hoax.” But the branding and rebranding by the president can warp the way his followers perceive reality.

How has the unleashing of dark money and corporate political contributions contributed to the adoption of commercial speech tactics in political speech?

One of the reasons I was interested in branding in politics was I am an expert on campaign finance. And mostly, that involves studying the laws that govern who can (or cannot) spend money in U.S. elections. It is clear from examining how candidates and other political actors spend money in elections, that the biggest ticket item for most is advertising. So clearly, if millions are going into these messages at the expense of other things like in person meetings with voters, then that is worth considering how political spenders are trying to influence or manipulate voters.

Dark money is money spent on politics that cannot be traced to its original source. Over the past decade, $1 billion dollars in dark money has been spent in U.S. federal elections. As I discuss in Political Brands, some of that dark money is surely coming from corporations through conduits like the U.S. Chamber of Commerce — a business trade association which accounts for one in every ten dollars of dark money spent. Other big conduits of dark money include the NRA.

But the blossoming of dark money from corporate sources and the use of commercial branding in politics are likely uncorrelated. For one, presidential candidates have been using commercial branding techniques in political television ads going back to Eisenhower’s 1952 run.

Interestingly, most public corporations stayed at a far distance from candidate Trump during the 2016 election. One notable exception was the GEO Group which runs private prisons. GEO Group was the only publicly traded company to support Trump on the record in 2016. GEO Group has benefited from President Trump’s policies in office including the expanded use of private prisons and the use of privately run detention facilities to implement immigration policy.

On the other hand, dark money and branding can exacerbate each other in at least this way: slick branding typically costs a pretty penny. And when that branding has been paid for with dark money, then voters are left in the dark about who is trying to manipulate their voting behavior.

What has been the impact of social media on the importance of short, memorable, meme or hashtag-style branding?

One phenomenon I explore in Political Brands is how political myths persist. As I explain in the book, myths are the most powerful and likely to be believed by a subset of the public when the myth comes to viewer/hearer from a trusted source. Over the past decade many of us have built up social networks where we get information from our “friends” on Facebook or our professional contacts on Linked-in or the accounts we follow on Twitter. Depending on how carefully those on-line social media contacts are curated, they can be sources of invaluable and truthful information. But these networks also have a risk of spreading bogus nonsense. And when a political myth comes through that trusted social network, each of us is more likely to fall for it. This problem is also magnified because the algorithms on these platforms push two things in front of us, what the algorithm thinks we want to see and what the algorithm thinks is trending. So we have the combined effect of seeing information that confirms our preexisting biases and we are likely to see content that has outraged other people in our network. This is a recipe for propagating political myths that fit our personal prejudices.

Social media has the potential to reach far more people in an instant than any broadcaster. For instance, Facebook has 2.3 billion users worldwide, Twitter has half a billion users, and 100 million users are on Instagram. This level of connectivity is both a blessing and a curse. It is a blessing because truthful information can spread from one corner of the globe to the ends of the earth instantaneously. But the inverse is also real: lies, conspiracy theories, misinformation, disinformation, propaganda and political branding can also circle the globe insinuating itself in the minds of end-users, readers, and citizens. This is especially the case when a political lie is told by the President of the United States on social media. Often traditional media sources will amplify these lies by uncritically stating, “President Trump tweeted x,” without factchecking it in real time. One of the things I hope the media gets better at during the 2020 election is adding to their headlines “without a factual basis, President Trump tweeted x.” And this standard should also apply to candidates running against Trump. If they are spouting untruths, then headlines should say “despite all evidence to the contrary, the candidate claims y.”

Why does it seem that America, including the media, is more tolerant of out and out lies by politicians? How does the way Trump is seen differ from, for example, the Watergate-era Nixon and his administration?

Whether Americans are more tolerant of lies now than during the Nixon administration is an interesting empirical question. But I think it is fair to say that Nixon lived in a different media environment than we do now. His world was one of broadcasts on just a few channels. One of the stories I note in Political Brands is how Nixon made peace with television as a medium. In 1960 he likely lost his election against Kennedy because Kennedy made better use of the medium throughout the campaign including running a TV ad with Jackie Kennedy speaking Spanish to attract bilingual voters to her husband’s column. But by 1968, Nixon’s team which included Roger Ailes (who would go on to found Fox News) set up a series of faux press events for Nixon. They appeared to be spontaneous, but they were heavily scripted and manipulated including hand picking the audience who were basically a bunch of local Nixon supporters at each stop. Nixon essentially ducked most real tv interviews the whole 1968 campaign. And he hired Madison Avenue ad men (or Mad Men if you will) to craft his political ads.

Trump and the rest of us inhabit a much more diverse media market which includes radio, tv, 24-hour cable news channels, and social media. For many of us, social media and its algorithms, push news at us that reconfirm our preexisting world views creating an information silo where we read what we like and we like what we read. These information silos are likely to allow lies to fester and grow when they come to us from a trusted source and then the lie can be heard a hundred times from within the echo chamber of that information silo. So, one of the things that commercial advertisers learned long ago is that repetition breeds familiarity and familiarity breeds trust. So to take an extreme example, if a viewer sees ads for Marlboro cigarettes over and over, that makes them familiar, and over time that breeds trust in the Marlboro brand even if as we now know that all cigarettes cause cancer.

The same thing can happen with political lies — hear one often enough and it takes on the air of truth, even if the lie is deadly advice like President Trump’s recent suggestion to “go to work” if you have Covid-19. Please note this is dangerous lie. The CDC advises that if you are sick, you should stay home so that you don’t infect other people.

Americans used to have a high level of trust in science, corporations, religious institutions, and journalists, and now we see that none of them are widely trusted anymore. Why is that and what can they do to regain trust?

Trust in institutions is low. I describe some of this phenomenon in Political Brands as “truth decay.” With truth decay, opinions and facts get blurred. And truth decay has happened in the United States before. Typically, Americans experience truth decay when there is social or economic upheaval. When there are new “winners” and new “losers” in society or the economy, the ability to manipulate the public through lies goes up exponentially. It is difficult to know in real time what damage President Trump’s mendacity has done to the presidency itself. We’ve never had a president who inspired fact checkers at the Washington Post to create an entirely new category of lies called the “Bottomless Pinocchio,” but now we do. Whoever the next president is, whether that is in January 2021 or four years from now, that individual will have an enormous task of rebuilding trust. It will happen slowly. As the new president says a true statement and backs it up with actions and facts that are consistent with that statement, trust will be restored slowly but surely.

Despite Trumps mantra of “fake news, fake news,” in many ways, trust in high quality journalism is high right now because many Americans are seeking the truth that is missing in other areas of their lives. And I would note that despite Trump’s withering attacks on the courts and even individual judges who do not deserve the abuse, the judiciary has been a bright light during this time of truth decay. As Judge Amy Berman Jackson said when sentencing Roger Stone, “the truth still matters.”

Is the widespread lack of trust the result of or the cause of a lower priority in trust? In other words, do Trump supporters not care that he doesn’t tell the truth or do they believe him over the fact-checkers and others who call him out as a liar?

I cannot get into the mind of the average Trump supporter. I do not know if they really believe him or not. There is some troubling polling however. For example on March 5, 2020, Rasmussen found that 60% of Republicans see coronavirus scare as tool to get Trump.

And before the 2018 midterm a stunning 92% of Republicans in an Axios poll said that the media purposefully reports “fake news”.

And as I point out in Political Brands, partisans typically hold stereotypical views of members of the other political party and those who consume the most political news have the most distorted views of their political opposites.

How has the Supreme Court protected “the right to lie?” What lies are and are not protected? The Trump campaign brought a defamation suit against the New York Times. What do you predict will happen?

The Supreme Court has protected the right to lie in a case called US v. Alvarez in 2012 which ruled that Mr. Alvarez could not be prosecuted for lying about receiving the Congressional Medal of Honor. This holding could be expanded this year in Kelly v. US (the Bridgegate case) where again the issue could boil down to whether Ms. Kelly had a constitutional right to lie about closing lanes the George Washington Bridge to punish the mayor of Fort Lee, New Jersey for failing to endorse Governor Chris Chistie for re-election.

How has the Supreme Court narrowed the definition of “corruption” and how does that affect political speech?

The Roberts Supreme Court has been narrowing the definition of corruption in campaign finance cases and in white collar crime cases. In campaign finance cases, the Roberts Court has moved from the Rehnquist Court’s systemic view of political corruption to a much more personal view of corruption. For the Roberts Court, only quid pro quo exchanges are truly corrupt.

Meanwhile in white collar criminal cases, the Supreme Court is also making it harder for prosecutors to bring corrupt politicians to justice. For example Governor Bob McDonnell of Virginia received gifts and money from a businessman who wanted to sell tobacco pills to state employees. McDonnell set up meetings on the businessman’s behalf. A jury of his peers in Richmond, Virginia convicted McDonnell and his wife for this corrupt behavior. But when this case was appealed to the highest court in the land, the Supreme Court unanimously invalidated the conviction stating that Governor McDonnell would have done the same thing — set up valuable meetings — for any constituent. This is objectively absurd. But it’s also the law right now.

The shrinking definition of corruption matters because fighting corruption is basically the last compelling state interest that is recognized as a justifying campaign finance laws as a matter of constitutional law under the First Amendment jurisprudence. Thus the more the Supreme Court defines away the concept of corruption, the harder it will be for states or Congress to justify the next campaign finance law.

What are the agency cost risks of corporate political contributions? Do you think it is possible to rely on the language of the Citizens United decision to get the Supreme Court to uphold transparency/disclosure and accountability to shareholders? What are shareholders and consumers doing to promote greater transparency of political contributions?

Citizens United v. FEC, a Supreme Court decision from 2010 which allows corporate managers to spend corporate treasury funds to buy ads in American elections, caused agency problems for shareholders in American companies especially publicly traded ones. In a nutshell, dispersed shareholders have a difficult time monitoring the self-serving behaviors of corporate managers. And corporate political spending falls into the category of behaviors that might benefit the managers alone at the expense of the company or the investors.

Fortunately, the Citizens United decision has good language about the constitutionality of transparency for corporate political spending. Shareholders can ask for companies to be truthful about how the companies are using corporate resources in politics. Unfortunately, thus far, ten years later, the SEC has yet to require transparency of corporate political spending. But who knows. A new administration or a new Congress could put laws in place consistent with Citizens United requiring transparency from corporate political spenders thereby putting an end to dark money at long last. I end Political Brands with an epilogue of policy suggestions and increased transparency of money in politics is high among them.

How did the Parkland kids use branding to become more effective than many other, better-funded, more experienced groups working on gun safety?

The last chapter in Political Brands is entitled Branding Tragedy and it is focused on the aftermath of the Valentine’s Day massacre at Marjory Stoneman Douglas High School in Parkland, Florida. While mass shootings are disturbingly common in the United States given the easy access to high capacity guns and ammunition, the Parkland shooting broke the mold. Many students at the school grabbed the spot light and demanded two things (1) stronger regulation of guns and (2) for young people to register to vote. The Parkland student leaders also seemed to have an instinct for how to brand their own movement and how to put pressure on commercial brands to change their behavior.

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One way that Parkland students and their fellow student supporters “branded” the issue of gun control was they did research into how much the NRA had spent supporting particular candidates like Senator Marco Rubio. Then they divided that amount by the number of students in the state of Florida. This equaled $1.05 per Florida student. Thus at the March for Our Lives in DC, Florida students had orange price tags pinned to them that said “$1.05.” In broadcasts of the march and interviews with student leaders, the “$1.05” price tags were prominently displayed — a continual call out to the Rubio-NRA nexus.

In terms of their own branding, one of the Parkland “March for Our Lives” t-shirts was an image of an American flag with QR code where the 50 stars would be in a real flag. When a person used a smart phone read the QR code on the t-shirt, they would be taken to a voter registration webpage where they could register to vote online (in states that offer that option.).

In terms of pressuring commercial brands to change their behavior, the Parkland students focused on breaking ties between the NRA and commercial brands who have supported the gun rights group in the past. In one case, the Parkland students realized that a politician running for governor of Florida in 2018 named Adam Putnam bragged that he was “an NRA sellout.” Those are his own words, not an exaggeration by the students. Then the Parkland students discovered that owners of a local supermarket chain called Publix had provided Putnam with significant campaign finance support. So the Parkland students had a die-in at Publix to call attention to the Publix-Putnam-NRA nexus. Needless to say, Publix got the message and pledged to stop supporting political candidates. And the Parkland students pressured many other commercial brands to break ties with the NRA.

Most of the branding I discuss in the book is branding that is used for pretty nefarious purposes. But branding is tool, and just like a scalpel, it can used to heal a patient or kill a victim. The Parkland story is an important reminder that branding can be used for good like lessening gun violence or encouraging young people to vote.

What did you hope to accomplish with this book?

I used the time writing Political Brands to explore how we elected a brand president in 2016 and how to recognize when commercial branding techniques are being utilized to manipulate voters. I hope at the end of it, readers can better spot the practice of repeating a word or phrase as clever way of tricking not just one person — but potentially as a clever way to trick a nation of voters. Simple messages sell and a message will beat no message every day of the week. We all have to be more savvy during the 2020 election so that we don’t fall for the slickest, best packaged candidates. Voters need to value competence, compassion, and complexity in the next set of candidates we elect.

Movie critic, corporate critic and shareholder advocate, critic/editor at @ebertvoices @moviemom, and #corpgov #movies and editor at @miniverpress

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