Impact of Campaign Spending on Electoral Contests

There was an interesting post on Freakonomics yesterday. The author Stephen Dubner also provides a link to a paper by Steve Levitt analyzing the impact of money spent on election campaigns. By analyzing the outcomes of several elections taking into account various factors, Levitt identifies to what extent money played a part in it.

The analysis is fairly simple and might be amenable to adaptation to Indian conditions albeit with some changes. Apart from expenditure of the candidates, they include four variables: the partisan tendency of a voting district, incumbency factor, partisan shock or what we call a 'wave' in favor of a particular party and the inherent attractiveness of a particular candidate. Barring any scandals, the attractiveness of a candidate may be assumed to stay constant over successive elections and hence, even though not directly observable, is eliminated as a confounding variable by restricting the focus to the same candidates facing off in more than one election. Of course, the existence of only two major national parties simplifies calculations considerably.

Not surprisingly, he finds the effect of national political events ('waves') very significant. So is the incumbency factor (note that the reference is to individual incumbency, not the party) and the effect of any scandal. As for spending, he concludes: "…Once district-specific factors and the quality of the competing candidates are controlled for, the impact of campaign spending on election outcomes, regardless of incumbency status, is small but positive". How small? An extra $100,000 in campaign spending (with the opponent's spending held constant) garners a challenger 0.3% of the vote while adding less than 0.1% to an incumbent.

He also looked at whether spending had a greater impact in highly competitive elections than in non-competitive ones. His conclusion: "When only 'competitive' elections were included, the point estimates for the effects of candidate spending were actually slightly lower but were not significantly different from the results obtained using the overall sample".

Finally, he offers two explanations why politicians spend so much effort on fund-raising (also true in India though carried out away from the limelight) and spending money. One is that the opportunity cost of raising funds is very low as compared to the benefits of winning the election. The second is that politicians have confused correlation with causality when considering the relationship between spending and electoral success.

Are these findings likely to be true for India as well? To be sure, the way in which money is spent in US elections varies significantly from India. I am not aware of prolific television ads in India which suggests that popular choices are relatively unencumbered by political advertising to begin with. The only way a candidate can hope to gain through the mass media is by influencing coverage in a popular TV channel (like Montesinos did in Peru), something that might benefit a party as a whole and secondarily its leader (like ‘Jaya’ TV, ‘Kalaignar’ TV, etc.) but would therefore not come within the ambit of individual campaign spending.

A major expense incurred by candidates is on the liquor, sarees, cricket sets and other goodies gifted to lower income voters. Indeed the only study I have come across so far is one that was conducted by the Center for Media Research earlier this year documenting the extent of such bribes. Also, prominent interest groups/organizations/religious establishments need to be appeased in part through 'donations'. This is apart from whatever is spent to keep party workers in high spirits (literally!) and for banners, pamphlets, rickshaws and other expenditure. The degree of effectiveness of such bribes to selected groups may be different from propaganda, voter registration, rallies and other legitimate efforts. Levitt’s findings may nevertheless still hold some value for upper middle class constituencies where these practices may not be widely prevalent.

Lastly, multi-cornered contests may potentially render the marginal advantage more significant. The reasons he attributes to politicians spending such a fortune on election campaigns rings true in the Indian situation as well.

The differences though make the comparison a difficult one. A similar study in India might well yield interesting results. There are however likely to be methodological problems. For one thing, finding successive elections where the same candidates face off may be difficult given the extremely competitive nature of the parties’ ticket selection process. Secondly, the multi-cornered nature of many contests adds to this problem and to the overall approach as well necessitating a more complex model. Thirdly, coalition politics makes it difficult to assess the incumbency factor. These difficulties are however not insurmountable and even a limited effort might be rewarding.

Update 1: Thanks to Mr.Venkatesan for reminding me of a study done by the CSDS in India. I quote from his post on this blog:
"A study conducted by the Centre for the Study of Developing Societies (CSDS) in 24 constituencies spread across 17 States and Union Territories during the 1999 Lok Sabha elections found that almost all 122 candidates monitored by it had exceeded the expenditure ceilings imposed by the law (currently it is Rs.14 lakhs in a Lok Sabha election). The study found that money mattered to gain an entry into the electoral fray, and to remain visibly in the race, but you can’t hope to buy the votes and win elections. In other words, it is not true that the more you spend, the more likely you are to succeed."

Update 2: Mr.Venkatesan kindly provided me with a copy of the CSDS study. On the relevant questions concerning electoral spending, the report compiled a list of the percentages of votes earned by the winners and their main challengers as well as the amounts spent by these two groups. The groups were themselves divided into three categories depending on the margin of victory (under 5%, 5-10% and over 10%). Several inferences were drawn from the numbers:

1. The winner did not always spend more than the runner-up. In some of the closely contested constituencies, the runner-ups spent more.
2. Those constituencies with the narrowest margin of victory did not record the highest spending. Rather, moderately competitive constituencies (margin of victory 5-10%) recorded the highest expenditures. Thus, spending did not correlate well with the degree of competitiveness (as judged from the outcome).
3. Polling and counting day expenditures are the highest as a fraction of the total expenditure on major items in the most closely contested seats. The inference is that by the polling day, candidates already have a keen sense of their chances and make a strategic choice to spend more if they believe the contest is close and the odds of victory are good.

The conclusion from 1 and 2 is that ‘higher expenditure does not necessarily produce victory’, i.e. there are important factors besides money which make a real difference to the outcome. Note that this does not indicate whether money does or does not make a difference – that is not something that a study of this sort will tell us.

It is quite possible that in terms of votes, the winner and the runner-up got different returns on their investment similar to what was found in Levitt's paper. The data cannot however verify this nor can it be compared with the findings from that study as the terms incumbent and challenger used in that study indicate the candidates’ status before the election which is different from the labels winner and runner-up used here that are based on the outcome.

It's 12%

I had often wondered what per cent of admission matters get accepted as regular hearing matters by the Supreme Court. This seems especially important to keep track of given the amount of time the Court spends hearing admission matters publicly. Well, the answer it turns out is about 12% (in 2005 it was 11.8%; in 2006 it was 12.4%, and in 2007 it was 12.1% according to statistics from the Supreme Court comparing the number of admission matters disposed of and regular hearing matters instituted – you can get this raw data upon request from the Court – I did the math to get the per cent, hopefully correctly).

In the U.S. about 1% of cases filed before the Supreme Court are actually heard by the Court. In countries like Italy, France, and Austria with Constitutional Courts – where almost all matters for their highest Courts are referred by the legislature or lower courts and not individuals – this number jumps to closer to 100%. The Brazilian Supreme Federal Court also decides a high proportion of the cases filed before it although individuals are allowed to appeal to it (and do quite often). You can see how each of these screening methods effects the functioning of a court. In the U.S. appeal is not that difficult, but the Court accepts few of these appeals for regular hearing making its caseload quite manageable. In the case of the Constitutional Courts most appeals are only from the legislature or lower courts meaning the appeal load is low and they can accept most of it manageably. In Brazil the Court is overwhelmed by appeals (most of which it decides, even if with just a sentence) and must rely more heavily on its staff to process these appeals. In India, the Court has added more judges and benches to process its relatively high appeal and judgment load. Unsurprisingly, how courts deal with admission matters fundamentally affect their structure and functioning.

So, what are we to make of this 12% number? We could have a larger discussion about whether it is too high or too low (a longer argument that would have to be outside this post). We could use it to assess the quality of lawyers – if you are a Supreme Court advocate what per cent of your cases are taken for regular hearing? (If it is below 12% you might have some explaining to do.) We could also break it down further. For example, in 2007 21% of three-justice bench admission matters and 55% of five-justice bench admission matters were accepted for regular hearing (the highest of any categories – probably because many are referred from other benches). Two of the next highest in 2007 were Direct Tax (20%) and Arbitration (19%) matters. Was this because more valid cases were brought in these categories? Were the lawyers in these matters better able to get them placed for regular hearing? Are justices biased towards these cases? Some of the lower acceptance rates for regular hearing came in categories with the highest profile. For example, only 5% of contempt admission matters in 2007 went to regular hearing. Similarly, only 7% of PIL admission matters continued on for regular hearing (this only counts the PIL matters that were placed on the admission hearing calendar – most PIL letter petitions don’t even make it this far). What explains these divergences? Are there more spurious cases brought in these categories? Are they more likely to be decided by justices during the admission hearing so that they are rejected at this stage instead of during regular hearing? Of course, none of this tells us how much time is spent arguing during the admission hearing in each category of cases, or whether oral admission arguments actually helped inform justices better than pure written arguments would have.

The Indian Supreme Court is increasingly keeping better and better statistics about its caseload (many of the High Courts have followed suit or arguably taken the lead). Statistics can often be misleading and their use in argument counter-productive. However, statistics can also give us more concrete tools to describe the Court’s functioning and where we would like it to head. Hopefully, scholars will increasingly dive into the statistical data about the Court to firm up their arguments and let the numbers lead them to new insights about the judiciary.

The Draft ART Bill, 2008

The MOHFW has published a draft ART (Assisted Reproductive Technology) bill on its website (here and here). The bill seeks to regulate the practice of surrogacy. On the whole, it is well written and avoids some of the pitfalls of the ICMR guidelines on the same question.

The bill empowers a National Advisory Board to act as the regulatory body laying down policies and regulations. It also seeks to set up State Advisory Boards that are, in addition to advising state governments, charged with monitoring the implementation of the provisions of the Act particularly with respect to the functioning of the ART clinics, semen banks and research organizations. Several newspapers have already published some of the details of this bill (a summary of some of its key provisions may be found in this article in Tehelka). Below are some of the other salient features.

ART clinics are to become the central hub of all surrogacy-related activity. They are tasked with obtaining all relevant information, informing all the parties involved of their rights and obligations, maintaining accurate records of all the transactions every step of the way. Requirements of confidentiality and other procedural obligations of all the institutions are also specified. The bill lays down conditions (such as age, usage, etc.) that potential gamete donors and surrogate mothers must meet.

Three ‘kinds’ of parents are involved in surrogacy: intending parents who seek the child, genetic parents who provide the genetic material for procreation and the surrogate mother who carries the fertilized womb until delivery. An individual can and often does wear more than one hat. For example, a man wanting to have his own child also provides the sperm to conceive the baby thus being both the intending as well as the genetic father. Likewise, a woman can not only provide the ovum but also carry the conceptus thus acting as both the genetic and surrogate mother. Several other combinations are also possible which is where controversy often arises. The bill draws clear lines to avoid these problems.

While not using the word ‘intending’ anywhere, its implications are nevertheless clear. Firstly, it categorically states that donors, at the time of donation, and surrogate mothers, after delivery, shall relinquish all parental rights (s.33(3), 34(4)). Secondly, it bars the surrogate mother from also being an oocyte donor – in other words, traditional surrogacy (s.33(13)). In its most common form, this method involves the surrogate woman undergoing artificial insemination with donor sperm and was the primary method of impregnation before the onset of more recent techniques such as in vitro fertilization (IVF). The important difference here is that unlike in gestational surrogacy where the surrogate mother only carries the child, here she is also the genetic mother. This was evidently a potential source of legal complications and would have required the government to come up with a more detailed framework of the parties’ rights in such cases. A ban no doubt precludes the problem but it comes at the cost of the law being more restrictive than it is perhaps necessary to be. Finally, the wording of the provision (s.33(13)) has a potential loophole . It only mentions ‘oocyte’ and not ‘ooplasm’ (the content of the oocyte barring the outer membrane and nucleus), a distinction that has become important ever since ooplasm transfers started to be carried out. Thus, an individual can now end up having two genetic mothers; if the surrogate mother also ends up donating the ooplasm that is introduced into the recipient’s oocyte, that would in effect amount, at least in part, to traditional surrogacy through the backdoor and all the issues associated with it.

Foreign couples/NRIs would be required to appoint a local guardian to be legally entrusted with the surrogate mother’s welfare until the baby is handed over to them after delivery. They are also required to establish to the clinic through documentation their ability to take the child back with them (s.34(19)). This is probably in response to the recent Manji incident where a surrogate baby conceived by a Japanese couple was stuck in India following emigration issues of the baby and the father (thanks to Mr.Venkatesan for bringing it to attention). In the controversy that followed, several infirmities in the arrangement came to light including the absence of a legal contract between the parties, a fact that many saw as a worrying reminder of the potential for exploitation of native surrogates.

The bill allows individuals and unmarried couples to avail of this route to have children. There is also a provision (s.20(10)) that conception by surrogacy shall not be considered by any clinic if it would normally be possible to carry a baby to term. The disparate impact is obvious: a woman desiring a child would thus have to show that she is not capable of bearing one; a single man of course is free to conceive as and when he pleases. There is a broader ethical question here: is it wrong to have ‘designer babies’, a phenomenon this provision is ostensibly meant to prevent? If two people consensually seek to conceive a child with the woman, for whatever reason, not wanting to go through the trouble of carrying it unto delivery, what is the state’s interest in preventing it given that it has no problem permitting surrogacy regardless of the family arrangement of the concerned individuals?

There is also a restriction on ART clinics from providing any information ‘about surrogate mothers or potential surrogate mothers to any person’ (s.34(14)). Parties seeking a surrogate mother thus have to either advertise (permitted under s.34(7)) or approach middlemen. It may not be unwise for ART clinics to stay clear of matchmaking but for those looking for a surrogate, it would be of benefit to have a reliable source of information regarding potential candidates. If he/she/they are investing so heavily in it, it is only fair to them to be able to select someone from a list by reviewing their attributes and ‘past performance’. Also, the strict confidentiality requirements of s.34(12) and s.34(14) would render it difficult for a private entity outside the purview of this law to fulfill this role given their inability to access information even for verification purposes. Introducing a caveat on the lines of s.33(2) (that applies to donors) allowing for the release of personal information at the discretion of the surrogate might allow for such a prospect in the future.

Clarification: In the comments section, I made a point that gay couples would have to adopt a child post-birth as there is no provision in the act for a gay couple to have a child. In doing so, I gave the example of heterosexual couples who adopt children when one of the genetic parents happens to be an external donor. I said ‘My understanding is that this bill does not seek to change that arrangement…” I wish to clarify that while this arrangement will continue to hold for gay couples, the situation will change for heterosexual couples (both married and unmarried) should this bill pass to become law. Under s.32(2), informed consent is mandatory for both partners (in case of a married or unmarried couple); s. s.35(1) and 35(2) would automatically render the child the legitimate child of both parties.

Legal rights for cohabitees

In a previous post, this blog discussed the issue of legal recognition of non-marital cohabitational relationships. The Maharashtra cabinet appears to have cleared a proposal to expand the definition of 'wife' in section 125 of the Criminal Procedure Code to include a long-term cohabitee for eligibility for maintenance benefits.

The issue of cohabitees' rights raises complex questions regarding consent and entitlement. Clearly non-marital cohabitees have not expressly consented to any of the rights and obligations that ensue upon marriage. On the other hand, social hierarchies often result in structural vulnerabilities and assumptions about freedom of contract in close personal relationships may be unrealistic. Also, in polygamous marriages, the second 'wife' may not have any legal recourse (unless there is already an exception I am unaware of). Perhaps an entitlement to basic maintenance on proof of long-term cohabitation is the step in the right direction.

On a related matter, I was wondering about the legal status of contract marriages in India - to what extent can parties contract rights and obligations in derogation of, or in addition to, personal law or statutory rights? I think this is possible under Muslim personal law through the nikahnama, but any educated insights will be valuable.

OCCASIONAL DIGEST

1. NHRC's report on Salwa Judum presented to the Supreme Court. The report, contrary to what the CJI observed during the last hearing, defends Salwa Judum, even while making certain recommendations on the anti-Naxal strategy.

2.Supreme Court's judgment in Divisional Manager, New India Assurance Co. Ltd. vs. A.Sankaralingam: At a time when the SC has referred to a larger Bench reconsideration of the landmark Bangalore Water Supply judgment, to reconsdier a host of issues settled in that judgment, this one by a two-Judge Bench (delivered on October 3 can be accessed on the judis site, if the link is not working)is a bolt from the blue. The Bench held in this case that a part-time employee is covered under the Industrial Disputes Act.

3.A.G.Noorani on lawless lawyers in the latest EPW

4.Andre Beteille on Constitutional Morality in EPW

5.Vinod Bhanu on right to recall legislators: the Chhattisgarh experiment in EPW

6. Sharad Joshi on how S.138 N.I.Act leads to farmers' suicides in Maharashtra.

7.M.J.Antony on the latest Supreme Court judgment in Pareena Swarup vs. Union of India, declaring its contempt for Babu-friendly tribunals.

Welcoming a new contributor: Namita Wahi

Namita Wahi, whose inaugural post is below, is a welcome addition to our team. Here is a brief bio:

Namita graduated from National Law School, Bangalore in 2004. That same year, she pursued an LLM at Harvard Law School. Thereafter, Namita worked at the law firm of Davis Polk and Wardwell in New York city as a litigator and as a corporate associate. In Feb 2008, Namita started her doctorate at Harvard Law School, where her focus is in the areas of constitutional law, political, legal and social theory. Namita spent the summer of 2008 working at PRS Legislative Research in New Delhi working on issues of campaign finance regulation and parliamentary effectiveness.

Welcome on board, Namita. We look forward to your posts which will hopefully broaden the range of issues covered on our blog.

Amartya Sen argues for theory of Comparative Justice

In a lecture at Harvard Law School last week, Amartya Sen spoke about the "idea of justice," a topic developed further in his forthcoming book.

He began by outlining two approaches that Enlightenment thinkers had adopted towards understanding justice. The first approach, which he called "Transcendental Justice," adopted by classical writers like Hobbes and Rousseau and developed by contemporary thinkers like Rawls, Nozick and Dworkin, focuses on distinguishing between the just and the unjust and creating institutions that would ensure a just society. The second approach, which he characterized as a comparative approach to justice, espoused by thinkers as diverse as Adam Smith, Jeremy Bentham, Condorcet, Mary Wollstonecraft and Karl Marx focuses on the actual realization of justice in society by evaluating social injustices in a comparative setting. The primary concern of the "transcendentalists" is the creation of institutions that would ensure a perfectly just society, whereas that of the "comparativists" is to ensure improvements in society by removing specific injustices. For the comparativists, the idea of justice is not about achieving a perfectly just society, but to produce as just a society as is possible given the circumstances. Noting that there exists a strong bias in contemporary political philosophy towards "transcendental justice," Sen's book attempts to develop the idea of comparative justice.

Borrowing from an ancient Sanskrit text, Sen explained the contrast between the two approaches to justice as the difference between "niti" and "nyaya." "Niti," translated as "organizational propriety and correctness," refers to the institutions that should be created in order to have a just society. "Nyaya" on the other hand, translated as "a comprehensive idea of realized justice," is inescapably linked to the world and the lives of the people. Sen stated that the idea of justice in Holy Roman Emperor Ferdinand I's claim that justice ought to be done even though the world may perish, is that of "niti." However, justice done at the expense of a catastrophe in which the world may perish does not result in "nyaya."

Sen stressed that his idea of justice is not merely consequentialist. In fact, his idea of justice encompasses a comprehensive way of looking at both processes and outcomes. He illustrated this by referencing the famous debate between Krishna and Arjuna in the Bhagvad Gita, a holy Hindu text. Arjuna, a renowned warrior, hesitates on the brink of battle even though he is on the side of good and justice because he does not want to kill his cousins who are on the other side. Krishna encourages Arjuna to do his duty regardless of the consequences. This debate is often characterized as a debate between the deontological and consequentialist positions with Krishna representing the former and Arjuna the latter. However, Sen argued that Arjuna is not a mere consequentialist, in that he is not just concerned about the fact that many people will be killed in the battle that he is hesitating to engage in but also that he will be killing people for whom he has some affection.

Shifting focus to theories of global justice, Sen argued that when people across the world agitate for global justice, they are neither clamoring for minimal humanitarianism nor for a perfectly just society. They are seeking the removal of some outrageously unjust facts or rules in the national or global society. For instance, those seeking reform of patent laws to make drugs easily available to the poor and the needy are targeting the injustice of people dying for want of necessary medications while drug companies make huge profits. Their action is calibrated to achieve a narrow goal. It is not anticipated that the removal of this injustice will result in the creation of a perfectly just society.

I found the talk fascinating not merely because of Prof Sen's forceful argument for a theory of comparative justice but also for the breadth of literature, including diverse western political thinkers and ancient Sanskrit texts, that he drew upon to explicate it. In particular, I thought his references to the Bhagvad Gita for making a philosophical argument and his interpretation of those references were quite novel.

A full report of the talk can be accessed at this link: http://media.www.hlrecord.org/media/storage/paper609/news/2008/09/25/News/Sen-Argues.For.Theory.Of.Comparative.Justice-3451308.shtml