Legal Commentary

What should a democrat think about the political participation of the politically inattentive? My immediate inspiration for this question comes from the Daily News , which reports that a voter stated as follows: "I'll be honest with you. Barack scares the hell out of me. He swore on the Koran." But the more general background for my question comes from at least 81 years of political science, from Walter Lippmann's 1927 classic, "The Phantom Public" to John Zaller's "Nature and Origin of Mass Opinion," the uniform gist of which is that the vast majority of voters have extraordinarily little information about the choices that they make when they cast a ballot.

The problem with such ignorance is not that the voters will make bad decisions but rather that they will make self-defeating ones: They will actually vote against their own views. Zaller provides a nice illustration of self-defeating tendency of public opinion: In polls taken during the 1980s, self-described "Hawks" and "Doves" gave statistically indistinguishable opinions about aid to the "Contras" because neither had any idea who the "Contras" were. Under these circumstances, mass suffrage is simply picking between Door One and Door Two on the game show with no idea what lies behind the curtain.

Putting aside indignant rhetoric against these blasphemous doubts about democracy, how is such a system defensible? It seems odd that the law distrusts the judgments of citizens in ordinary commercial transactions so much more than their judgments in political transactions. The law stringently regulates the quality of drugs, food, cars, and consumer products generally on the theory that consumers are not capable of accurately evaluating these products for themselves. But the First Amendment prohibits similar regulation of the political marketplace, apparently on the theory that ignorance can more easily be tolerated with matters like nuclear war and fiscal crisis than with matters like the purchase of a tube of toothpaste.

At the very least, should the law sanction blatantly misleading political statements more aggressively? Should there be an FTC of political ads?