Lawyers, Law and Justice

In yesterday’s mail, among the bills, bank statements, and catalogs, I found a solicitation from a non-profit. The package it arrived in declared in bold red letters that my “signature is needed” (not to mention, no doubt, my cash) for a petition to halt some objectionable political action. Visible through the plastic wrapper was a pen, their gift to me.

No doubt you’ve received similar solicitations from other organizations. In the past they’ve sent me (and occasionally my dog) shiny nickels; return address labels; and (my personal favorite) a world map. Those who create these campaigns are hoping to take advantage of the principle of reciprocity, that universal force that compels us, almost beyond our will, to return favors done for us. Robert Cialdini describes its effect at length in his well known work, Influence: The Psychology of Persuasion, and how heavily humans feel and act from a sense of obligation. He writes,

The impressive aspect of the rule for reciprocation and the sense of obligation that goes with it is its pervasiveness in human culture. It is so widespread that after intensive study, sociologists such as Alvin Gouldner can report that there is not human society that does not subscribe to the rule. And within each society it seems pervasive also; it permeates exchanges of every kind.

Alas for these nonprofits, I have read Cialdini and am able to resist the compulsion to reciprocate, pocketing the nickels and applying the return address labels to my personal correspondence without the slightest twinge of guilt.

While this effort to influence my decision regarding charitable gift-giving failed to work in my case, science has exhaustively documented  how effective its influence can be.

The force of reciprocity does much social good, allowing interpersonal and commercial transactions to flourish, leading to “a cluster of interdependencies that bind individuals together into high efficient units”, producing “social advances”, as Cialdini writes. Reciprocity, though, can be turned to a more sinister purpose. Bribes, kickbacks, and corruption are its unloved progeny.

While science perhaps acknowledges the influence and risks of reciprocity, law sometimes lags behind.  And all too often these influences operate just beneath the radar of our own awareness. For example, despite having enjoyed a duck-hunting trip at the invitation of then Vice President Cheney, Supreme Court Justice Antonin Scalia refused to recuse himself from a case involving Cheney, confidently asserting, “I do not think my impartiality could reasonably be questioned.”  Folks who understood something about the subtle powers of persuasion weren’t so confident. (See for example, “Psychology 101: A Remedial Class For Justice Scalia” (PDF), by Mahzarin R. Banaji, Richard Clarke Cabot Professor of Social Ethics in the Department of Psychology, and Carol K. Pforzheimer Professor at Radcliffe, Harvard University.)

Now, years later, psychologists and other social scientists are shaking their heads over another Supreme Court call, this one involving another form of influence: corporate campaign financing.

In the recent Supreme Court decision on the constitutionality of campaign finance laws, Citizens United vs. Federal Election Commission (PDF), which struck down federal law limiting spending by for-profits, non-profits, and unions. Justice Anthony Kennedy, writing for the majority, observed:

The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt…

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy…

…independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

Some psychologists beg to differ, according to “Psychologists: Propaganda works better than you think”, an article in USA Today that samples the views of several psychologists on the science behind campaign financing and voter influence. From the article:

“The First Amendment confirms the freedom to think for ourselves,” said Justice Anthony Kennedy, reading the court’s 5-4 majority opinion on Thursday, finding that corporations and unions can freely spend money on campaign ads to defeat or elect federal candidates. The decision ends decades-old limits on political spending.

…

So, we might ask, how well does research suggest people “think for themselves” under the potential flood of political ads from that spigot?

“I don’t have any particular position on the ruling itself, but this justification for the decision is based on an incorrect assumption about how the mind works,” says psychologist Brian Nosek of the University of Virginia. “If the goal really was to increase the chances that citizens would think for themselves, then the decision should have been to ban partisan advertising completely.”

Nosek and his colleagues, Harvard’s Mahzarin Banaji and the University of Washington’s Tony Greenwald, operate “Project Implicit” which features an “Implicit Association Test” to measure unconscious beliefs, including political ones. The data from 7 million participants show so-called “undecided” voters have often already made up their minds unconsciously on who they will vote for, for example. And the team has also mapped congressional race outcomes nationwide against unconscious racial biases, finding that prejudices invisible to voters themselves swayed their decisions, rather than rational thinking.

“The (think for themselves) justification is ironic considering that the purpose of advertising — political or otherwise — is to persuade the viewer about a particular point-of-view,” Nosek says. “That is, the goal of the political ad is deliberately ‘not’ to have citizens thinking for themselves.”

Psychologists remain wondering when the legal system will catch up with the science. So might the rest of us.

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