← The Lawfare Podcast
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- [00:00]
Kate Klonick
Did I talk too much?
- [00:01]
Rick Pildes
Can't I just let it go? Thank you so much.
- [00:09]
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Rick Pildes
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- [01:04]
Rick Pildes
If we could get a handle on the issues that preoccupy a lot of the discussion of the platforms, you know, offensive speech or hate speech or disinformation, I still think the effects of these technologies would be incredibly profound.
- [01:23]
Lawfare Podcast Host/Producer
It's the Lawfare podcast. I'm Kate Klonik, senior editor at lawfare, with Rick Pildes, professor of Constitutional Law at New York University Law School.
- [01:32]
Rick Pildes
We may be moving to a sustained era in which there's much more widespread participation politically, there's much more mobilization of people in politics because of these new technologies. But it will also mean that it will be very easy to mobilize opposition to government, no matter what government is doing. Mobilize dissatisfaction.
- [01:58]
Lawfare Podcast Host/Producer
Today we're talking about an inescapable question for those of us that study the law and technology. Is social media responsible for the fall of Western democracy?
- [02:08]
Kate Klonick
I wanted to kind of start with walking the audience into what prompted me to reach out to you and have you come on the podcast. And that was something that I was not expecting, which was a Thomas Edzall column in the New York Times, which is social media killing democracy. And I have nothing against Edzall. I like him, but I don't. He's 84 years old. I didn't exactly expect him to suddenly be weighing into the debate over social media. And so I was surprised at how great his column was actually. And it'll be in the show notes for those that want to take a look at it. And we're going to be having a few more of the people that he interviewed on, because I thought it was a great mix of individuals. I was really relieved when I read it that you were actually at the top of his quotes of the first sources that he went to, which immediately lent lent his column some credibility. And I believe that, as you've now told me, that a lot of what he references in that column comes from a recent paper that you wrote, political Fragmentation in the Democracies of the west, which is forthcoming in the BYU Journal of Public Law. And so I just kind of was hoping that we could start there, have a conversation about both that article, but the general topic. And I think it's just a wonderful thing to be talking about in the next, frankly, like always. But in the next year as we head into the midterm elections. So do you want to give us just a quick synopsis of what parts of the article that you kind of brought up were most compelling to Edsell's thesis on social media and democracy?
- [03:43]
Rick Pildes
Well, first of all, let me say I'm impressed you looked up Tom Edsel's age. I hadn't known how old Tom was. I think he has this wonderful niche pulling together experts on different subjects and then knitting them together into these extended essays. He does. So I'm happy you asked me about this article on political fragmentation in democracies. That's actually a theme I've been writing about for probably a decade now, initially focused on the US but then also extended to most of the Western democracies, which I think are all undergoing over the last 10 to 15 years very similar structural transformations, facing relatively similar challenges, failing to meet those challenges effectively in the eyes of many of their citizens. And one of the things that I have found that's very, very striking is the way in which democracies have become, in my view, much more politically fragmented. That's my kind of term for and this is most obvious in the Western European countries that have proportional representation systems. So there one of the things people don't appreciate, I believe, about how proportional representation had worked in Western Europe since World War II is that even though they are proportional representation systems, most of these democracies were effectively, for all practical purposes, two or two and a half party systems. So there was a large center right party or coalition, a large center left party or coalition. They either gained a majority or could govern, or they needed one smaller party as a partner to form a majority to govern. And as dissatisfaction with democracy began to become more and more prevalent over the last 10 to 15 years, what we've seen in Western Europe is the, I mean, collapse is a little strong. But the real hemorrhaging of support for the traditional center left or center right parties throughout most of Europe, and the tremendously quick rise of third or fourth or more political parties, some of the most successful over this period of time have been the new right parties in much of Europe. And it's created a situation in which the parliaments there no longer are governed by one major party or one and a half parties, but they are fragmented between many political parties. And there are lots of consequences for democracy that follow from that. France is maybe the most extreme example right now. France actually doesn't have a PR system, but they've had multi party democracy for a long time. And the national assembly there has become so politically fragmented between the Macron kind of more centrist forces, Marie Le Pen's National Rally Party on the right, there's the sort of various parties on the more extreme left. And France has essentially become ungovernable. I don't think it's unfair to say France right now is essentially ungovernable.
- [07:05]
Kate Klonick
The government has fallen, I mean, in the last three years, weeks, and then set back up again. And then fallen again. Yeah, exactly, exactly.
- [07:13]
Rick Pildes
Macron went to snap election, so the government collapsed and he hoped with new elections they could overcome this fragmentation. They didn't. They're having tremendous struggles. But this also the same thing went on in Germany. Germany, until their most recent election for the first time, was governed by a three party coalition. The problem with these fragmented parliaments is that when you try to put together a governing majority, first of all, it can be much more difficult to actually form a government. The governments are more fragile because the coalitions are often sort of ideologically incoherent. So Germany's government before the last election, the three party coalition included the Green Party and a kind of libertarian free market party along with the Social Democrats. So to step back for the larger frame here, governments seem to be not dealing effectively in the eyes of many citizens with major cultural issues. Immigration is the main example of that in Western Europe. And they also seem to be unable to deliver on the economic dimension for many of their citizens. Those are what are driving in a large sense, the search for new alternatives, the disaffection, the constant dissatisfaction. And yet when you get these more fragmented political systems as a result of all of that, it makes it even harder for these governments to deliver. So the U.S. i think, has been experiencing some of the same things over the last 10 to 15 years, but with our two party system that dissatisfaction gets expressed within the parties as opposed to the creation of new parties. It's structurally very difficult to create new, effective new third parties in the U.S. so instead, what you see is like, real internal fragmentation of the two major parties. And to me, the most striking illustration of this is that the Republican Party continually kind of devoured its own Speakers of the House. I mean, this is the third most important position in the government, and the party just can't find agreement on who will lead it. Now, that's been more stable recently once Mike Johnson became Speaker. But when John Boehner wrote his memoirs, after having been speaker and being pushed out before Paul Ryan took over and was pushed out before Kevin McCarthy took over and was pushed out. But when Boehner wrote his memoirs, he called the Republican Caucus, he called it ungovernable, and he also called it the Chaos Caucus. And leaders of the parties in the US now have much less capacity to bring their party members along on difficult legislative deals. The Democratic Party, as we know, is conflicted between its more progressive wing and its more moderate wing. That's the Hillary Clinton Bernie Sanders presidential primary election, which left very bitter feelings within the Democratic Party between those two factions during. I don't want to go too much detail in the initial, but during Joe Biden's administration, you saw some of these conflicts play out in very, very significant ways. And I certainly expect in the Democratic primary for the presidency in 2028, you're going to see these deep divisions in the Democratic Party get played out. So that's the way fragmentation works in the US it's much more internal division within each of the major parties, as opposed to the way this gets expressed in Europe, which is the proliferation of these parties.
- [11:11]
Kate Klonick
Yeah, no, I think that that's such an important point, and you summarized it beautifully, because I actually didn't know. I was like, should we just leave the Europe question as its own separate thing? Because it's such a. It is. There is such a difference. But it is interesting how it's the same but different in these two different ways. And you kind of highlight the main factor, which is just the number of parties involved in the system.
- [11:35]
Rick Pildes
You know, to put this in the largest but most important perspective, it's this pervasive dissatisfaction with Democratic governments that all, Basically all the Western democracies have experienced over the last 10 to 15 years in ways that they haven't seemed to be able to resolve yet.
- [11:54]
Kate Klonick
Okay, so let's switch to, like, kind of the. That's an excellent summary of the kind of like the, like, we can all agree. I, you've, you've sold me that things are more fragmented and harder to govern, for sure. What I kind of want to tease out is more the question of how the causation comes from social media. And so one of the things that I think is so interesting here, and as a student of kind of particularly American history, you kind of can't help but kind of point to kind of the rise and fall of like, a lot of different moments, especially in media history and communication, on presidencies, on everything else, but just the larger questions. And you actually are quoted in the Edsall column on saying this, which is that, that there's no question that new technologies have contributed significantly to the political fragmentation rolling near all Western democracies. And then you actually, you kind of put the point on it yourself. The printing press, the radio, cable television gave us the Protestant revolution. Joseph Goebbels, like, and the, you know, and I, I put in the, the C SPAN effect. How is social media different from these? I guess my question is like, okay, let's take your premise that political fragmentation is, is happening in democracies. Let's take your premise that this is new and worse than it's been before. Why is it that you'd believe that social media in particular is the reason that this is happening? And why is it different from something like radio or C span? How is this not a continuation of C Span, for example?
- [13:28]
Rick Pildes
Well, first of all, when I think about democracies and technology in our era, I tend to talk about the communications revolution, not just social media. So I view cable television, the rise of C Span, cable television. All of that to me is part of the new communications era that we're in. And social media, the Internet and the like is kind of the further development of this new technology puts it on steroids. Yes, you referred to something that, that Tom Etzel asked me about in that column and that I commented on. So he, he asked, you know, are the costs of social media greater than the benefits? And, you know, of course, you can't really answer a question like that, especially right now. But, but I did say that people forget, or I'm sure lots of people don't know, or think about the fact that when the printing press came in, it was unbelievably disruptive for a long period of time. And the great example of that is that, as I say in the piece, when Martin Luther nailed his 95 theses to the church door, you know, he didn't just do that. The, the Printing press had been recently invented, and his tract was distributed widely and very quickly throughout Germany and then throughout Europe. And there's no question the printing press played a major role in catalyzing the religious wars that followed for a very extended period of time. And then I also mentioned that Joseph Goebbels had famously said, without the radio and the airplane, we would not have been able to do what we, the Nazis did. And in fact, the story about the radio in the rise of Nazism is a fascinating story in technology because the journey is actually there was a cheap radio that they had mass produced, they required people to have in their homes.
- [15:32]
Kate Klonick
It's a little bit the opposite of like, fireside chats and fdr.
- [15:36]
Rick Pildes
Exactly. So, you know, there are previous technologies that have had incredibly horrific consequences for the world. On balance, you know, is the radio and the printing press, you know, a positive? Sure. I mean, I'm balanced. But in the early stages with both of those technologies, there were incredibly dramatic and terrible effects. Now, that's not to say anything specific about social media, just to sort of say it's hard to put these things in perspective, especially when you're kind of in the early stages of these developments. All that said, I do think the communications revolution has had profound effects on democracy. And I think that all the discussion about disinformation or hate speech or fake videos and the like don't really begin to scratch the surface of how profound these changes have been. Or put another way, if we could get a handle on the issues that preoccupy a lot of the discussion of the platforms, you know, offensive speech or hate speech or disinformation, I still think the effects of these technologies would be incredibly profound.
- [17:00]
Kate Klonick
I think that that's exactly right.
- [17:02]
Rick Pildes
And I think one simple way to talk about the effect is so. So Emmanuel Macron, who I think is more philosophically inclined than most political leaders, said there's been a leveling of authority. And I think that's a really nice concise phrase for how the communications revolution has affected actually not just politics, but lots of other institutions. But in politics in particular, for better and worse, you know, social media and the communications revolution makes it much, much easier to mobilize criticism of government, to mobilize opposition to government, to mobilize even not particularly organized or structured opposition, to challenge the development of government policy before it can actually get developed. Many, many, many ways. We can talk about this in more detail in the American context in particular, but in many, many ways, politics is just transformed. And the fundamental transformation, I believe Is this leveling of political authority, this undermining of political authority, if you will, the delegitimation of political authority that is kind of a constant with social media now. There's lots of times when authority should be undermined and delegitimated, and mobilizing opposition to government is very appropriate in certain contexts. But if we're in a world in which it's more widespread participation is made possible by these technologies, more widespread opposition, virtually no matter what government is doing, there are always going to be interests, groups, people who are upset with what government's doing. If all of this can be continuously mobilized, it makes it very difficult for governments to develop the kind of concerted power and the legitimacy to be able to tackle effectively the challenges that are causing all of this dissatisfaction in the first place. I describe what I think is kind of a perverse dynamic that's at work that I see, which is there's been this pervasive dissatisfaction over the last 10 to 15 years throughout the west with democracies that has produced, with the aid of the communications revolution, this much more fragmented political sphere. And that much more fragmented political sphere only makes it all that much more difficult for governments to be able to form the kind of concerted power and legitimacy and authority to actually respond to this dissatisfaction. And so it seems like no matter what government is in power, whether it's a government more to the left or more to the right, people remain dissatisfied, and they continually search for alternatives. And, you know, at a deep level, when democratic governments over significant periods of time are perceived by many of their citizens to be failing to deliver for them effectively on the issues that they consider most urgent, that's a dangerous situation. People, at a minimum, can be angry, alienated, distrustful, withdrawn. You know, even worse, it can. It can spawn longings for strong men or strong women, figures who can cut through all of this. You know, I alone can fix it. So the. The paralysis or the dysfunctionality of democratic systems, which is one way of describing what we've seen over the last 10 to 15 years at least as seen by many of their own citizens, is a very fraught kind of period for democracy. And it's even more fraught in this era as it has been in previous eras. But it's even more fraught now because you have authoritarian regimes like China, which may be seen by some people as actually being more capable of delivering on, like, generating more prosperity for this for citizens and the like. And, you know, I don't want to get too far into China. And what's actually how we should actually see China. But certainly it's out there as a, as an alternative model now, which was also true in the 20s and 30s. You know, with fascism in Germany and Italy, there are real worries that if those regimes prove more able to deliver for their citizens, would more people in the west, in the US in particular, start being attracted to that model? Now Obviously World War II completely changed that. Those models were completely vanquished as any kind of legitimate possibility. But Joe Biden was very aware of this when he was president. I mean he said a number of times, I'm not going to quote him now, but he didn't put it in these terms exactly. He clearly saw his historic role as being able to show that democracies could deliver again effectively as against the Chinese authoritarian one party kind of alternative. He articulated that a number of times and it's absolutely clear that's how he defined his historic role.
- [22:36]
Kate Klonick
Yeah, I think that that's a really interesting point. I want to separate out two ideas that you kind of brought up and then I want to kind of ask a follow up question. But you know, I loved the, the leveling what we're seeing. There's, I think you, you, you cited to Macron saying that there's been a leveling of authority. And of course that is, that is the entire promise frankly of the, the new and open Internet from the, from the techno utopian idealism of the 90s and into the 2000s was that there was a leveling of authority and there was a thought that this was going to be a moment in which we tested basic concepts of like democracy that we've like dreamed about in Madisonian democracy that like the, the idea of, of, of minority factions being able to find each other and organize and voices being able to be lifted up. Another way of putting kind of Macron's statement about the leveling of authority is that there's a lack of gatekeepers and that is at every level. There's a lack of media gatekeepers, there's a lack of fact checking gatekeepers, there is a lack of like gate on like the very spectrum of technology. Cable is different because it requires equipment and requires a spectrum and there's a limited spectrum that we set up an entire agency to oversee and kind of run. There's no spectrum issues on the Internet and there's even fewer that now with TikTok and everything else. I mean it's like, it's unbelievable. Nevertheless, I kind of think that this is like this fascinating question of like we got so Much democracy. And does like, does it mean that we were wrong about all of the things that we've talked. I mean, this is a gigantic question. But like, I mean, but, but I think it really has to. You have to ask it. Which is kind of like, okay, how can you claim to kind of set up this empowerment of individuals that is unprecedented in human history? Absolutely unprecedented, not just in your ability to speak in general, but in your ability to have access to more information than we've ever had ever in human history. And in many ways, like, this was the michaeljonian ideal. This was the ideal of like we are meant to go out there and have free speech specifically so that we can self govern effectively in these democracies. And instead we're seeing everything fall apart. And so which brings me to my second kind of point, which is kind of like the right, which you bring up and I think is really huge about dissatisfaction, how dissatisfied people are in their government and how that leads to the fragmentation and people casting around for answers. And this I will draw a little bit on kind of my cognitive neuroscience background and like my background in kind of a lot of like cognitive psychology, which is like that like the pure huge increase in media consumption and visibility of everything in the world has given us this saturation of things such that we are just exposed to so much more, such that we will never. It's like impossible to be satisfied because we are seeing so many more harms. Like if you just show people more things going like these things are happening all the time. But it's the pure representation effect that I kind of introduce, you kind of talk about. Right? The more you show people, the more they're going to be dissatisfied. And so I kind of just really wonder and I want to pivot. This is like kind of the biggest, most philosophical point we'll hit today. But then I want to kind of pivot back to kind of the, the hard, some of the hard issues that you talk about I thought were fascinating about campaign finance and other types of things and fundraising. But I'm just kind of curious, like, how do you kind of explain. Can you explain like this disconnect? I feel like it's a disconnect and I, I do this for a living also. So I'm just kind of curious. But you've focused more on elections, more on the democracy side of things, and I focus more on the social media side of things. So I'm just really curious if you see the same things I'm seeing.
- [26:48]
Rick Pildes
Well, let me start with the first set of issues you raised in your comments. It's definitely true, of course, that the technology revolution has empowered individuals, provided access to information in ways that have never been true before. But we don't like to talk so much this way now. But authority, the ability to marshal authority effectively is critical to being able to make democracy and government work. And what I mean by that is suppose you imagine a legislature which has no political parties. Everybody's a free floating atom. They all have access to all sorts of data and information and you're trying to move that entity towards some policy on some significant issue. If you have to cobble together, let's say the U.S. house, 435 individuals and get them all to agree on exactly how to structure legislation and all of that, if you have 435 individual free atoms, you can see how difficult that process is. One of the things political parties do and have historically done is they organize coalitions, they organize people that have generally similar views on broad matters. And then the party can sort of function, is kind of an entity with authority, if you will. And in a two party system, the other party does the same thing. And then you can try to have, to the extent you need compromise or negotiation on certain issues, that can be done. If you don't have organizations that make decisions, even on questions like what is the agenda for the legislature. If you don't have some authority to be able to do that, if it's a free for all all the time, you can easily see how intractable that would be and how difficult that would be to make the political system work. So you have a party, a party elects a speaker. The speaker can kind of set the agenda with other party leaders. Parties can make these individual free floating atoms take positions that are difficult for them, that they don't really want to take. But the party, if the party is committed to go to certain direction, and if party leaders have significant authority, they can put together a majority that can move the process in some direction. So that's what I mean by the leveling of authority. When political parties, if we want to focus on parties, get kind of stripped bare in the way that social media and the communications revolution enables. And this is particularly true in the United States, it becomes much, much harder to actually make the political process function because you actually need to be able to marshal concerted power or concerted authority or the ability to marshal concerted authority. Concerted power is tied to having some authority in the top of organizations that can push the organization forward in a certain direction. You or I may disagree with One party or the other, the direction they take. But. But I think if you. If you think of. Now, this is overly extreme, but if you think of social media as turning every politician, every member of the House into a kind of an autonomous, atomistic free agent, I think that helps sort of picture what I'm trying to capture. There is much more of that now. Now, it's true that our political parties in the US were also divided at earlier periods of the 20th century, but they were divided in such a way that there was a center that could form. So there was a coalition. It's usually conservative Democrats and conservative Republicans in the era in which the two parties were also internally divided in much of the mid 20th century. But the process could work because there were coalitions that could be formed. Now. The fragmentation pushes towards the extremes, so it doesn't create more of a center. We have both polarization, but also this fragmentation. So the parties are very far apart and their wings are further to the left or further to the right, and there just isn't a center that gets formed.
- [31:36]
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- [35:47]
Rick Pildes
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- [37:46]
Kate Klonick
So I think this naturally brings up kind of the campaign donations question because I would argue that like that and maybe you kind of have, do I think kind of say this in your paper, but the idea that people were divided before and they had to find the center of the party or appeal to the. I mean that was a pragmatic, there was a pragmaticism around that they had to find the center of the party and appeal to the party because they were relying. That was the best way to raise money. That was the best way to get big donations. That was the best way to kind of appeal to the machine. To appeal to the machine was to raise money. And that is actually, I think a really important part of kind of that you highlight and you have written about significantly, which is the rise of small scale donations that social media and the Internet generally, I mean we, I say social media and in this context, I mean like just truly like everything from the net roots movement in the 2000s to like, you know that like that launched Obama and Howard Dean on upwards. It just has become de rigueur now. Like, it is just like how people raise money. And you rate, you give a number of kind of examples in your, in your article of Josh Hawley, Marjorie Taylor Greene. Like all of these kind of people who have, are able to kind of stay on the edges and the fragmentation is able to be maintained and not meet the middle of like the party because they have independent sources of funding and tremendous like huge sources of funding. So I'm kind of like talk a little bit about that and kind of also kind of talk about how, how we kind of square that with the fear that we had after Citizens United of just like the corporation behemoth taking over, which also we seem to be in the midst of, in various types of. I mean, I just feel that this moment is so, so full of contradictions and your article highlighted so many of them beautifully. And I just like, I kind of. So I'm just thrilled to be able to kind of nerd out on this stuff with you.
- [39:51]
Rick Pildes
So these are particularly American phenomenon because we have a system of campaign finance that's based on. It's a privately financed system. We don't have public financing at the national level in the way that most major democracies do. So one of the things that used to be true in Congress is if you were early on in your career in Congress, you were invisible. You couldn't reach a national audience. You were very dependent on the party leadership. You wanted to move up in the party hierarchy. You cared about what committee assignments you were on. The better committee assignments would attract attention to you. That would also help you raise money. You were more dependent on the party for financing, as you said. And so one of the ways the communications revolution has changed politics is first of all, people can now reach massive national audiences without filters of various sorts. So AOC is a good example of this. When she first went into the House in her first year, she went in with something like 9 million followers on if you combine, I forget the, you know, Instagram and Twitter at the time. And this is one other platform and that dwarfed, I think the next highest person in the Democratic Party was Nancy Pelosi, who was the speaker at like 2 million and then everybody else was like 200,000. So in her first year in the U.S. house, she has a national audience she can immediately reach. So that's one piece of this story. The second piece is that especially as small donor platforms for fundraising got developed with ActBlue first in the Democratic side and then eventually win red on the Republican side, people began to realize they could also raise money in these new ways, which was through small donations, where the transactions cost for raising that money, for communicating about that raising that money had become much lower, and the transactions costs for giving that money had become much lower. So it was like what used to be called direct mail campaigns back in the 60s and 70s and 80s became these social media campaigns. And people learned that what got you attention on social media was being more extreme, more outrageous, more ideological. And that that not only got you more attention, it also helped turn on the spigot of these small donations. And individual donations in general have become a bigger and bigger force in political campaigns. So what we know is that individual donors in general, small and large, tend to be more ideologically extreme than the average American. They're more polarized than primary election voters are. Individual donors are more activists, and therefore they tend to be more the ideological polls of both parties. That's true for big and small donors, but small donors in particular are really attracted by these viral moments of outrage. That's how you get the attention of people. That's how you turn on the spigot of small donors. And so I think one of the hidden drivers of polarization in the US that we don't talk about all that much is the way the elections are financed and in addition, the role of small donors in the financing system. So most of the discussions about campaign finance tend to be about these issues of equality, issues of political participation, and those are real issues. But I don't think we appreciate the extent to which our individual, privately financed system contributes to polarization. And then to link this to our earlier discussion, once individual politicians figured out they could reach a national audience, they could raise money without having to go through the political party. They became much less dependent on political party leaders. And this is part of why John Boehner, for example, called his Republican caucus ungovernable. Because there were people in safe seats who weren't going to get thrown out in a general election. They could have visibility through cable television, social media. They could raise plenty of money on their own, especially if they were more extreme, more ideological, got more attention. And that's part of why things became much more difficult, in fact, to stay with John Boehner, he has a very interesting story about Michele Bachmann. If people remember Michele Bachmann, who was kind of an early, of course, the Tea Party Freedom Caucus sort of person or Tea Party sort of person, and she wanted to be on some important committee, and he didn't want to put her on there. And she basically said something to him like, well, it doesn't matter. I'm going to go on cable television. And he said, in that moment, I realized how much the world had changed. And the fact that she wants this committee job and I don't want to give it to her, and she can say, I don't care about you. I have my own constituency that can outrun you, circumvent you, get me what I want without your committee assignment. That's a really nice example of the decline of the power of party leaders to bring along their recalcitrant members to make difficult deals. Now, right now, the Republican Party, this was not true in Trump's first term, but right now, the Republican Party seems to be finding ways to act in a concerted fashion as a party. They did manage to eventually put together the, what I guess is called the big beautiful bill, which was a very large piece of legislation. But that's the only thing they've done of great significance legislatively. Most of what's been happening is that President Trump has been governing through executive orders, not through the political, not through Congress, not through the political process in the larger sense, just through his own executive orders. So we'll see if the Republican, if this Republican Party is going to be able to overcome the forces that pull it apart in today's political climate and actually deliver major legislation, whether you agree with it or not, or whether it will be like in Trump's first term, where they couldn't deliver on health care reform even though it was the major thing or one of the major things they had promised in the election because the party was too divided, too fragmented about what to do about health care.
- [47:18]
Kate Klonick
Yeah. So this kind of brings us to what I think is a tremendous end to your article where you kind of talk about the irony that all of this ability that social media has given individual political actors, these atomized political actors, as you call them, or these, you call them, pop up political parties when referring to kind of Europe, or you call them, I think, the free agent politicians of the United States, all of which I think are great and kind of terms. You could kind of categorize them as just like the over branding of America, the rise in brand culture, the rise of your ability to kind of create your own brand, slap your name on it, raise money off of it and go forth. And I kind of think that one of the things to tie this back to kind of the how this is more of a continuum than a new thing with social media is this Social media has certainly lowered the friction level between seeing something on TikTok and the seconds that you have how hard it is for you to then hit a donation button, right? Or how easy it is for you to spread something really quickly. But you know, this, I just, for, you know, it occurs to me that I haven't really defined it for the audience, but if people are not aware. The C span effect is this idea that essentially when cameras went into Congress and C span, which was this idea that like transparency would be great for democracy and we would create this public channel to broadcast the most boring of boring types of conversations, what ultimately happened was that we got a lot more floor speeches and we got a lot more performance. And so what happened was that you would have. And this is kind of, I mean back in like this, this is like 1980s and Dave Posen actually, he disagrees with this he span effect. But Dave Posen at Columbia Law School has a paper that I think nonetheless kind of like draws down on the polarization effects of the C span effect. But kind of is the idea that you stand up and then someone clips it and you make a pitch and it's not, doesn't matter if you're speaking to an empty chamber, you, someone clips it and they post it on, you know, and it's, it runs in your local news, in your local news clip to like your constituency and you fundraise off of it. And this just could not be more the case in social media. Like you gave the aoc, you give Pelosi, you give. I mean, it just happens over and over again, all of these moments that are just generated for the media. The irony of this, of course, is that the more visible and seemingly, and this is called kind of, you know, there's various names for it, but one of the names for it is the transparency paradox, which is the more transparent everything is, the more performative becomes. But that doesn't mean that like real conversations stop happening. They just happen further away from the public eye, or they happen like offline or they happen in signal chats, or they happen in like face to face meetings. And so the irony is that there are some of these things still happening, but this is actually much less visible than it ever was. There is less discourse that's going to be meaningful discourse. It's ever going to happen again on the US Chamber floor as long as you can run a camera in there than we had before. And so you end with this point. And I just kind of, I'm interested in like, yeah, I just kind of was like, would love for you to expand on it.
- [50:45]
Rick Pildes
So, yeah, I'll make a point about the US Congress. That's very much a reflection of what you've been describing. So there are a lot of complaints that lawmaking in Congress, to the extent it happens, is a much more centralized process in which the leadership of the party gets together with key figures in the party and they kind of put together the legislation in the leadership office, if you will, and then present it to the party and basically say, you know, here's the package, take it or leave it. And sometimes they won't even allow amendments to be considered on the floor. And there's a lot of writing that says Congress should go back to regular order. And regular order meant legislation was developed from the bottom up. It meant the committees of jurisdiction would start with the consideration of a bill and then they would have hearings and things would move up the system. Now the committee process matters less. Why is this centralization occurring in Congress? It's not like the speaker of the House or the leadership in the parties has suddenly become more greedy and more power hungry than they were in the past. It's that leaders discovered that in the age of transparency and then communications revolution as well, it had become incredibly difficult to actually get legislation through the traditional committee process. So one of the things in the post Watergate reform era, in this effort to purify politics, one of the pieces of legislation that was passed was that committee hearings have to now be open. This is part of the transparency reform. Who can be against transparency? But as committee meetings became more open, it became much easier for interest groups that didn't like what was happening to start mobilizing opposition. And with social media, that became much more. You could do this much more efficiently and, you know, putting together complicated political deals or legislation, you know, it often is, you know, everything's part of a package. You know, okay, I'm giving this up, but I'm getting that. And you have to have the whole package put together before you can really kind of sell it. By the way, when we do international negotiations, we don't do them this way. Those are done in secret, basically, among the players, and then it's presented publicly and defended publicly. So there are reasons that we don't have peace negotiations on C span. And so one of the effects of opening up the process to this extent and then with the way you can mobilize opposition through social media is political parties and their leaders realized we have to centralize this process. We have to work on putting together a package you know, without this kind of ability to kind of constantly disrupt it as we're in the middle of the negotiation process, people might not like that. But if you want the legislative process to deliver, both parties have come to the view in the House that they need to structure the legislative process that way. In the new transparency, social media age, it's fine to be nostalgic about return to regular order, but those cries don't really recognize what has driven this change. Francis Lee, who I think is one of the best scholars we have on Congress, has written specifically about this, including interviews with staffers who say all of this.
- [54:44]
Kate Klonick
Yeah, I think this is great, and I think this is a wonderful kind of point about the, the continuum of this process. So, like, you know, we all might blame social media, but I'll be sitting over here in a corner blaming C span. And so, so can I say something about C span? Just could you? Of course. No, I'm joking mostly about the C span. But I am curious.
- [55:02]
Rick Pildes
C SPAN is totally, you're completely right in what you said about C span. So Newt Gingrich would tell you, I think he said this, he would not have been able to do what he did without C span.
- [55:14]
Kate Klonick
Just, just remind the audience members what it was that he did.
- [55:18]
Rick Pildes
So the Democratic Party had controlled the house for 40 or 50 years, and that was thought to be likely a kind of a permanent state. People referred to what they called the Sun Party and the Moon Party. The Democratic Party in the House was the Sun Party and the Republicans, and they understood they were going to be a minority party, and they tried to move legislation as much in their direction as they could. Newt Gingrich came in and he thought the way to change this dynamic was to really polarize conflict and to be much more confrontational. And he realized that with C SPAN televising the proceedings in the House, even though the camera's just a fixed camera, you could use this new communications technology to generate this confrontational dynamic. So as you said, he had members, Republican Party members, they'd get up, they'd make their one minute speeches on the House floor that no one would pay any attention to outside of a few people in D.C. they'd make it to the C SPAN camera. There might be nobody in the chamber, just a few people, but you say these provocative confrontational things on C Span, it gets now picked up in other places and you can start mobilizing this much more confrontational style of politics. And he understood that the power of this neutral camera to really change the dynamics in Congress was something he could leverage through this polarizing, confrontational style that was a major, you know, major element in the development of the much more polarized political parties and the much more polarized politics that we have. And he was right in the sense that he was successful. And in 1994, the Republicans managed to capture control of the U.S. house for the first time in, you know, 40 or 50 years. And it completely transformed our politics. And without C Span, it's very unlikely he could have done that. And I believe he said that.
- [57:27]
Kate Klonick
No, he did. And you talk about it in your article, which again, for those that are looking, it will be in the. It will be in the show Notes. We have to wrap, but I wanted to kind of ask you one last question. You end with this great kind of cry to kind of something that our friend Jonathan Rauch, who had written a book on this, on kind of these exact issues called the Constitution of Knowledge and A Defense of Truth. You end with kind of this idea that Jonathan points out that the mass circulating of newspapers of the late 19th century, full of rumor, sensationalism and misinformation and at some point journalism professionalism came in with institutional structures. And we, this is kind of the beginning of our conversation earlier today, which is just that this has happened before and we fixed it and like things are disruptive and they've happened again. We had religious wars and then like things settled back down and everything else. You end, though, with a very pessimistic note. You say that you cannot imagine and vision an analog for the hyper centralized world of the digital age that would meaningfully inappropriate, appropriately reduce the fragmenting pressures it generates on democratic politics and governments. I wonder if that is, and this is, I'm just curious, like, do you truly think that there is no hope or do you just can't see what that solution would look like? And so that's kind of actually, if you like just kind of a short question, like, do you kind of. Yeah, yeah. Is it, is it like you can't imagine the technical solution or you just don't think, you think that maybe this is coming, bringing to a head philosophical, philosophical fundamental questions that will never be resolved.
- [59:04]
Rick Pildes
So I never know how I want to end conversations like this or how I want to end articles like this. You know, I have different moods about all this from, you know, time to time. What I speculate about at the end of that article is we may be, you know, moving to a sustained era in which there's much more widespread participation politically, there's much more mobilization of people in politics because of these new technologies. But it will also mean that it will be very easy to mobilize opposition to government, no matter what government is doing, mobilize dissatisfaction. We may be in an era of constantly turbulent sort of politics. I don't think that's going to change now. It may be that there are various things that can intervene in politics. There can be war that causes major changes in the way people see politics. Maybe things will change in a way that there will be really strong majorities who can actually govern for a period of time in some of these democracies. But I do believe I don't know if you consider this pessimistic. I do believe the new technology age means the ability to disrupt, to oppose, to challenge, to criticize will be constant at a level that we're not used to. And there are benefits from that. But there are also costs to a democratic system in which this kind of constantly churning, constantly turbulent, constantly disaffected kind of opposition will be easily mobilized and expressed. And that's going to be a real challenge as it has been for democracies, not just in the US but everywhere going forward.
- [61:02]
Kate Klonick
Yeah, thank you so much for coming on and joining us, Rick. This was so great to talk to you about and it's a tremendous article and I'm really glad that your ideas on this and the article ideas get such great play in the Times and that I don't know that we're talking about this stuff. I think it's super important and time for kind of a more sophisticated conversation around a lot of these questions and the one that we've been having for like the last 10 years. So thank you for helping with that.
- [61:30]
Rick Pildes
Well, thanks so much, Kate. It's always fun to see you and talk about these technology and law and democracy issues with you.
- [61:40]
Lawfare Podcast Host/Producer
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- [62:33]
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