Level playing fields

I am writing this as I watch the NCAA basketball tournament, which reminds me of the many ongoing debates about achieving level playing fields in sports, politics, and law. There is something uniquely American about the desire to ensure that our favorite pastimes are governed by rules that treat everyone equally. That is why one of the most closely watched telecasts of the college basketball season doesn’t feature any basketball at all. Instead, the nation is captivated for an hour as the 64 teams that get to play in the basketball tournament are announced. And then the fans of the teams that fancied themselves as one of the 64 but whose names were not called complain about their “unfair” exclusion from the tournament.

The charge of unfairness is the inevitable result of the selection of the 64 participating teams from a conference room rather than on a basketball court. Thus there is a push to expand the tournament to 96 teams (which, happily for the NCAA, would also increase television revenues). But that would simply shift the complaints to the 97th, 98th, and 99th best teams. The slippery slope ends with the approach once employed by my home state of Indiana, which used to place all of the state’s high school basketball teams in the state tournament.

A similar dynamic affects college football. Even President Obama chimed in with his own proposal to replace college football’s Bowl Championship Series (BCS) with a playoff that would crown a “true” champion. The premise of most such proposals – including, I believe, the President’s – is to have the top eight ranked teams compete in a three-round playoff to determine the champion team. Here again, though, the contestants would be determined off the field, and by the use of polls of sports writers or coaches – hardly the kind of approach that the President would be likely to endorse for deciding political questions. My suggestion, for what it’s worth, would be to have an eight-team playoff featuring the champions of the six major conferences, the highest ranked team from any other conference, and the highest ranked remaining team as a “wild card.” That would significantly reduce the use of polls to crown a champion, which is the primary complaint with the current system.

Moving to professional football, this week the NFL announced that it will experiment with a new rule to decide overtime games. Many fans object to the use of the coin flip to determine which team gets the ball first in overtime because of the possibility that the team that loses the coin flip might never get an opportunity to play offense if the other team scores on its first overtime possession. (I leave aside the possibility, painful as a Colts fan, that the team that loses the coin flip could simply try an onside kick). The NFL seems to be moving toward a convoluted system in which a touchdown on the first possession will end the game, but a field goal will result in the other team getting the ball too . . . . or something like that. It’s another odd response to the capriciousness of a coin flip. One alternative would be to award the first overtime possession to the home team, which would allow the teams to plan their strategy knowing what will happen if the fourth quarter ends in a tie.

We are engaged in similar debates about the fairness of our political process. No one seems to be satisfied with congressional rules that governed consideration of the new health reform law. The law’s supporters derided the Senate’s filibuster; its opponents repeatedly cited polls indicating that a majority of the American people opposed the proposal. We have not had any recent occasions to decide a tie election with a coin flip, yet that is precisely how some state laws resolve such ties.

Things get even more contested when we add the influence of money. Baseball fans often moan that the New York Yankees simply buy their pennants because the team spends so much more on player salaries than any other team. We have been spared similar worries in the NFL, which imposes a salary cap on each team, though that cap is about to be lifted as the league’s collective bargaining agreement expires. The role of money in politics has generated particular controversy since the Watergate scandal as reformers seek to equalize the voice of each citizen rather than allowing the wealthy to exercise an undue influence in political campaigns. The reaction to the Supreme Court’s recent Citizens United decision overturning limits on corporate election spending demonstrates the appeal of the equality and level playing field rhetoric. I agree with the Court that the first amendment precludes such blunt efforts to regulate campaign spending, but I also share the concern about the effects of money – and I would add that other types of influence on lawmakers are of equal concern. Several years ago, I proposed a solution that avoids the free speech problems raised by regulating spending: to require legislators to recuse from matters affecting their financial supporters (see http://www.nd.edu/~ndlaw/faculty/publications/nagle/Nagle_Recusal%20Alternative%20to%20Campaign%20Finance_37%20Harvard.pdf). It may take such unusual ideas to achieve our persistent desire for all of our playing fields to be level.