Abstract
Mediatization scholarship has extensively analyzed how media logic affects societal institutions. Media logic is, however, not the only powerful institutional logic at play in modern societies. Other institutions have their respective logics that reciprocally impact processes of mediatization. In this article, we show how the logics of the media, law, and politics collide in constitutional review at the heart of democratic politics. Constitutional rights are playing increasingly visible roles in societies as charged political issues of high newsworthiness. Via an institutionalist approach to mediatization, we illustrate how media, legal, and political logics coexist and compete within constitutional review. By building on sixty-four interviews carried out between autumn 2019 and spring 2021 with key actors—political journalists, members of parliament, secretaries, and legal experts—involved in the work of the Constitutional Law Committee of the Finnish Parliament, we show how journalists, politicians, and legal experts advance their own logics as constitutional actors and seek to manage and mitigate the interinstitutional conflict between law, politics, and the media. We demonstrate how various formal and informal practices regulate Constitutional Law Committee members’ interactions with journalists and social media behavior and legal experts’ relationship with the media. We thus concur with the analyses suggesting that mediatization is a dynamic process in which various institutional logics collide, struggle for power, and recede to make room for different logics.
Introduction
Institutionalist scholarship on mediatization has explored how various institutions adapt to the media and how media logic colonizes other societal domains. Importantly, scholars have also pointed out how processes of mediatization are influenced by other institutional logics. Indeed, media logic is not the only institutional logic in modern societies (Brants and van Praag 2017; Deacon and Stanyer 2014; Hjarvard 2014; Landerer 2013). Instead, media logic collides and coexists with other institutional logics that are equally powerful, such as the logics of politics and law. In this article, we explore the collision between media, politics, and law in the constitutional review process, which seeks to safeguard the constitutionality of legislation and therefore resides at the heart of liberal democracy.
Constitutional rights have begun to play an increasingly significant role in societies around the globe becoming often contested matters of great public interest (Ginsburg 2003; Schultz 2022: 7–35). The tensions stem often from the fact that constitutional reviews entails both legal and political aspects. In principle, constitutional review is a legal process, yet in practice, constitutional interpretation often touches on politically charged topics (Dorf and Morrison 2010: 41–68; Nogueira De Brito and Pereira Coutinho 2020; Sweet 2000). Moreover, and perhaps most importantly for media studies, media plays a pivotal role in constitutional processes. Constitutional review, which should be open to public scrutiny via the media, is often highly newsworthy because its results have considerable implications for democratic societies (Hitt and Searles 2018; Sill et al. 2013; Strother 2017).
In this article, we analyze how the distinct operational logics of the media, law, and politics materialize and collide within constitutional review. Theoretically, we build on the institutionalist strand of mediatization studies where scholars have explored how various institutions—such as politics (Campus 2010), science (Väliverronen 2021), bureaucracy (Figenschou et al. 2019), and, importantly, the law (Joyce 2010; Peleg and Bogoch 2012)—adapt to the growing importance of media. These studies on mediatization have emphasized how the modus operandi of various institutions is replaced or supplemented by the need to adapt to the media (Kunelius and Reunanen 2012). Societal institutions and their logics—the established rules and resources that govern a particular domain (Hjarvard 2014: 204)—are subsumed and altered by what are often broadly referred to as “media logics” (Altheide and Snow 1979; Asp 2014; Hjarvard 2018; Kunelius and Reunanen 2012; Van Dijck and Poell 2013), which are the routines, resources, practices, and affordances that typify professional news media as well as digital media platforms.
However, the media is not the only institution at play in modern societies; other institutions have their respective logics too. As Hjardvard (2014: 215) has pointed out, inter-institutional conflicts are permanent features of democratic politics. In this article, we focus on the coexistence and interplay of multiple institutional logics in constitutional review, which has become subject to elevated media attention and public debate. We show how the tensions within constitutional review stem from collisions between the logics of the media, politics, and law—institutions which all play important roles in democratic societies.
Empirically, we study constitutional review in Finland, where constitutional review is exercised primarily by the parliament and judicial review plays only a secondary role. In Finland, as in some other European countries, a parliamentary committee reviews the constitutionality of law proposals ex ante, before the bills enter into force. In contrast to the ex post system used in the United States, where the Supreme Court assesses laws after they have entered into force, the ex ante review is relatively common in Europe. 1 The Finnish constitutional review primarily takes place within the Finnish Parliament and is conducted by the Constitutional Law Committee (CLC). Finnish Members of Parliament (MPs) consult legal experts to review the compatibility of law proposals with the Finnish Constitution and international human rights obligations.
Despite the differences between constitutional systems, they all control the constitutionality of legislation. Such assessments typically involve tensions between three distinct institutional logics—legal, political, and media logics—all of which have well-established norms, routines, and democratic functions. Indeed, some legal scholars suggest that the judicial system has been politicized or that politics has been colonized by the sphere of the law (Bell 1983; Below 2020; Hirschl 2008). The media, as an increasingly prominent institution, seeks to cover the relevant and newsworthy consequences of constitutional review according to its own logic (Dahlberg and Harjuniemi 2022; Hitt and Searles 2018; Sill et al. 2013; Strother 2017).
We address these tensions by drawing on sixty-four interviews with key actors involved in the Finnish constitutional review: political journalists who follow the review process, MPs who sit on the CLC, secretaries of the CLC, and legal experts who are frequently consulted by the CLC. We explore how the legal, political, and media logics collide in constitutional review, how the collision of logics modifies constitutional practice, and, importantly, how the interinstitutional tensions are mitigated and regulated. We show how key actors involved in constitutional review develop practices that regulate the interaction of different logics. By managing its media exposure and political vulnerabilities using various—and often tacit—rules and practices, the CLC seeks to safeguard the legal logic of the process (Jakab 2016: 45) from the competing logics of the media and politics. Thus, we concur with analyses that understand mediatization as a reciprocal process in which the rising importance of media logics is often accompanied by practices that aim to restrict media visibility and protect institutional autonomy (Eskjær 2018; Nölleke et al. 2021).
We contribute to the scholarship on mediatization and the mediatization of law (Bogoch and Peleg 2014a, 2014b; Joyce 2010; Peleg and Bogoch 2012, 2014) by highlighting how legal, media, and political logics collide in constitutional review, amplifying public debates and media coverage of constitutional matters. Furthermore, we suggest that mediatization scholarship should further study processes in which various institutional logics may collide, struggle for power, and sometimes recede (Hjarvard 2018; Landerer 2013; Nölleke et al. 2021; Spörer-Wagner and Marcinkowski 2010).
Mediatization, Politics, and Constitutional Review
Mediatization describes the growing importance of the media in society and the ability of the media to alter different aspects of social life, ranging from intimate human relationships to politics and culture (Hjarvard 2013; Lundby 2014). A strand of mediatization scholarship often dubbed as “institutionalist” (Hepp 2013; Nölleke et al. 2021) is interested in the interplay between media as an independent institution and other social institutions, such as politics, science, or the law (Hjarvard 2013; Lunt and Livingstone 2016; Väliverronen 2021). Institutionalist scholars analyze how media logic—the institutional rules and resources that govern the media—“subsumes” (Peleg and Bogoch 2014: 312) or at least affects the core logics of other institutions. Strömbäck (2008), for example, argues that political logic—characterized by the aim of winning public support for certain ideas and societal groups and distributing political power (Strömbäck and Esser 2014: 14–5)—has been gradually shaped and altered by media logic.
Like the media and politics, the legal system is an important and powerful system with its own set of rules and resources. Whereas the need to harness support and yield political power lies at the heart of political logic, legal logic should be based on politically neutral processes of legal deliberation that follows the existing law (Peleg and Bogoch 2012: 973). However, the border between the legal and political spheres is porous, as legal deliberation always leaves room for individual interpretation and political struggles. Indeed, the classical question in constitutional law is whether constitutional review is a legal or political activity. While many argue that constitutional adjudication is based on legal doctrine and interpretation (Grimm 2019), studies show that constitutional judges are strategic actors too, guided by personal or institutional self-interest, subjective values, or political preferences (Spiller and Gely 2008).
Scholars have also paid attention to the tension between various logics. The media aims to scrutinize powerful institutions and bring conflicts and confidential issues into the public limelight, whereas in courts, closed doors and insulation from the media are required for impartial decision-making (Dahlberg 2019: 311–2; Kolb 2013: 979; Peleg and Bogoch 2012: 973; Sarvarian and Louca 2019). Therefore, the media attention paid to legal proceedings is regulated by various “defensive” (Nölleke et al. 2021) media rules and practices. The confidentiality of judicial decision-making is often maintained through a closed-door policy. Public relations professionals are used to manage interactions with journalists, and official media guidelines are in place to safeguard legal proceedings from media attention (Nölleke et al. 2021: 744–51). In the United States, jury sequestration is sometimes used to physically isolate jurors from outside influences (Levine 1996).
Various defensive publicity rules are also in place to protect the confidentiality of constitutional review. In the United States, several rules and policies prohibit the disclosure of confidential information from the Supreme Court. For instance, “by long-standing tradition,” the Supreme Court deliberates behind closed doors (Supreme Court of the United States 2023: 3). In Finland, the closed-door policy of the CLC and the secrecy of legal deliberations are guaranteed by law.
Still, there is evidence of the growing importance of media logics in the sphere of the law. Peleg and Bogoch (2012) argue that the Israeli legal sphere is being mediatized as the media attention given to cases affects judicial hearings and sentencing. Media strategies have become crucial for the parties of legal proceedings, and judges sometimes adjust the severity of sentencing because of media pressure (Bogoch and Peleg 2014a: 457–8). Some judges have deviated from the restrained approach to the media that is characteristic of legal logic to develop a media-savvy approach that is more in line with the logic of commercial media (Bogoch and Peleg 2014b: 831–2). Moreover, there is evidence to suggest that media attention and public opinion influence U.S. Supreme Court decisions (Casillas et al. 2011; Giles et al. 2008; McGuire and Stimson 2004). Studies on the Supreme Court’s decision-making have suggested that Supreme Court justices often follow public opinion, and that media publicity affects the constitutional review process (Caldeira 1991; Casillas et al. 2011; Epstein and Knight 2000; Ura and Merrill 2017). Constitutional review is an increasingly newsworthy topic for political journalists (Dahlberg and Harjuniemi 2022; Hitt and Searles 2018; Strother 2017), providing more leeway for tensions between various domain-specific logics.
Constitutional review, which clearly involves three important institutional logics, is an interesting case for studying how these distinct logics collide and compete. In effect, we argue that a case study of the Finnish system of constitutional review makes for an illuminating analysis of the tensions and struggles between legal, media, and political logics. In Finland, the MPs in the CLC are expected to cast aside their political allegiances and exercise primarily legal reasoning in an impartial way (Tuori 2016). At the same time, the scope of constitutional rights has grown, fueling further political debates and media attention to the constitutional review process (Dahlberg and Harjuniemi 2022). In what follows, we explore the interplay of logics in the context of constitutional review in Finland and the practices through which the CLC manages the collision of logics.
Constitutional Review in Finland
As stated, the Finnish case represents a constitutional system where constitutional control of laws mainly takes place before laws are passed. The review is exercised not by a court but by a nonjudicial body consisting of politicians. The CLC is thus the authoritative interpreter of the constitution and reviews the constitutionality of legislation before it enters into force, somewhat resembling the French model.
An important element of the review is the fact that the key reviewers are MPs. As with the French Conseil, the Finnish members of the CLC are not required to a have a legal education. Instead, the MPs rely on legal experts who specialize in constitutional law and are invited to provide input in respect of each draft law. The CLC members come from all parties, including both opposition and ruling parties. In their work for the CLC, they are supposed to set aside their party allegiances and employ legal reasoning (Dahlberg 2021; Husa 2011).
The CLC’s secretaries, who are usually experienced civil servants as well as legal professionals by education, help ensure the primacy of legal reasoning. They give the CLC legal advice on constitutional interpretation and decide which constitutional law experts to appoint as advisors for each case. These experts play a significant role in the assessment. They are usually professors of constitutional law or public law whom the CLC consults in relation to its hearings. Their views have a substantial impact on the CLC’s decision-making: as a rule, their opinions are followed (Dahlberg 2021; Lavapuro et al. 2011; Tuori 2016).
While the autonomy of the constitutional review is safeguarded by the abovementioned practices, issues nevertheless arise that may subject the review to media scrutiny and political tension. In recent years, the CLC and its interpretations of the constitution have been at the forefront of Finnish politics and media debates. The CLC has decided on the constitutionality of politically heated issues such as health and social care reform and COVID-19 restrictions in Finland. Many of these decisions, as well as leaks to journalists from the CLC regarding confidential matters, have given rise to speculation about the politicization of the CLC. The presence of prominent constitutional experts in traditional news media or on social media has fueled this development (Dahlberg and Harjuniemi 2022).
In what follows, we analyze media logic collides with legal and political logics in the work of the CLC. We describe how the CLC seeks to manage the tensions between the three logics as they surface and collide in the constitutional review of law proposals.
Data and Method
Our material consists of sixty-four interviews carried out between autumn 2019 and spring 2021. We interviewed the main actors involved in the Finnish ex ante constitutional review: (1) political journalists who follow the CLC closely (fifteen interviews); (2) MPs who sit on the CLC (fourteen interviews); (3) secretaries of the CLC (seven interviews); and (3) academics specializing in public law (twenty-eight interviews).
We interviewed political journalists who follow the CLC closely and represent the most important Finnish media outlets. We identified these journalists by conducting CLC-related searches in the archives of notable Finnish media outlets. In addition, we asked the interviewed journalists to name colleagues who would be relevant informants. We continued to interview new journalists until our interview data become saturated and no new themes emerged from the interviews. The interviewed journalists worked for the public broadcaster YLE, the biggest daily newspaper Helsingin Sanomat, the tabloids Iltalehti and Ilta-Sanomat, and the weekly current affairs magazine Suomen Kuvalehti.
The interviewed CLC members were either substitute or regular members of the CLC during the last two (2015–2019 and 2019–2023) election periods. We sent interview requests to the CLC representatives of the parliamentary groups and were able to interview actual members or alternate members of the CLC from all parties except one. We interviewed both former and current deputy and full chairs of the CLC. The chair convenes and chairs the CLC’s meetings. Like the CLC members, the chair is an MP. It is established practice that the chair of the CLC holds a law degree. Some CLC members also hold law degrees, but there is no formal requirement to this effect. The members are the formal decision-makers of the CLC.
We also interviewed the CLC’s secretaries, who are civil servants with legal backgrounds that remain in office beyond the election periods. The most important task of the secretariat is to draft the CLC’s statements and opinions and make presentations on which experts should be consulted in each case. We interviewed most of the current and former CLC secretaries who have worked in the CLC since the early 2000s.
Finally, we interviewed academics specializing in public law whom the CLC consulted in the 2015, 2016, 2017, and 2018 parliamentary sessions. The legal literature, which provides statistics on experts who have frequently fulfilled this role, served as background information in this regard (Riepula et al. 2019; Wiberg 2003). Based on the statistics, we included experts in fields of law other than constitutional law—such as criminal law and European law—whom the CLC had consulted on several occasions during a single election period. We also included experts representing different generations. Therefore, some of the interviewed experts have been consulted by the CLC since the 1980s, while others only began to be consulted fairly recently (from the 2010s onward). We interviewed legal experts on a large scale by including experts who are regularly heard by the CLC as well as those who are only occasionally heard. In numerical terms, the experts who are heard most often are consulted by the CLC about thirty times a year, while those who are heard only occasionally are consulted around seven times a year.
Of the sixty-four interviews that took place, forty-three were conducted face to face and twenty-one were carried out online or via phone call. All the political journalists were interviewed online in spring 2021 because of restrictions related to the COVID-19 pandemic.
The semistructured research interviews (Brinkmann 2020) included predetermined topics covering the CLC’s interactions with journalists, tensions caused by media attention, the use of social media, leaks, and experts’ role in the media. The semistructured nature of the interviews allowed for follow-up questions and confidential discussions on the media-related rules and practices of the CLC. The interviewees were guaranteed anonymity. To maintain confidentiality and protect their privacy, we refer to them in this article using a number and the broad group to which they belong (secretary, member, expert, or journalist).
All interviews were recorded and transcribed. Atlas.ti analysis software was used to code the data. A thematic analysis approach (Braun and Clarke 2019) was chosen as the method, where the aim of the analysis is to categorize the interview data into a set of reoccurring themes (Mäenpää 2022). The data were first coded utilizing a combination of inductive and deductive approaches (Braun and Clarke 2006), meaning that the assigned codes were closely connected to the data and no predetermined codebook was used. However, the coding process was influenced by our theoretical conceptions regarding mediatization and media practices. In the second stage of the analysis, the assigned codes were categorized into larger themes that describe the tensions between various logics as well as the practices that are used to shield the CLC from the encroachment of the media and politics.
Results
This section describes the empirical results that we obtained from the thematic analysis. Highlighting five typical scenarios, we reveal how the distinct logics of law, politics, and the media collide within the work of the CLC and how the actors involved seek to manage these logics. First, we show how the CLC is shielded from the media and politics via a set of formal and informal practices and by building on the authority of the CLC as a neutral legal institution. Second, we examine situations in which MPs use political logic to breach the rules for personal political advantage. Third, we explore the dynamics of politically motivated leaks to the media from the CLC. Fourth, we analyze the practices and resources that seek to manage the media appearances of legal experts whom the CLC consults. Fifth, we describe the tensions caused by social media and other digital forms of communication.
Behind Closed Doors: Centralizing Communications and Internalizing the Rules to Protect Legal Logic
Overall, the CLC aims to restrict the access of the media to pending CLC cases to safeguard the legal logic of the review process from politics and the media. The clearest way to ward off pressure is through formal rules on the publicity of the CLC’s work. According to the Finnish Constitution and parliamentary rules, parliamentary committee discussions are confidential and take place behind closed doors. MPs largely consider a closed-door policy and the confidentiality of committee discussions to be prerequisites for effective committee work (Pekonen 2011: 156–70). According to one interviewed CLC member, the CLC would no longer function in line with a legal logic if the meetings were open to the public. Greater publicity would increase the likelihood of politicization, as members would aim to harness media attention and gain a political advantage. In the words of the interviewee, Publicity creates pressure. It has been suggested that committee meetings should be held in public [. . .] then there would no longer be any functioning committee; then members will speak to the camera. (Member 12)
Closed doors and the confidentiality of CLC discussions support the ability of the CLC to follow a legal logic. The presence of the media would put constitutional deliberation in the limelight, making it more difficult for the CLC members to make unanimous decisions—an ability traditionally deemed important for the impartial and legal nature of the CLC. The most pressing concern is that media attention politicizes the process of constitutional review. The work of the CLC should be dominated not by political power struggles and public controversy but also by collegiality, legal expertise, and previous praxis of the CLC. Indeed, CLC members, despite being MPs with political interests and affiliations, are motivated by the authority and status of the CLC as a neutral arbiter of constitutional law. Thus, CLC members act collegially with their “judge’s hat[s] on,” as one member explained when asked about the impact of publicity on the work of the CLC: We cannot be immune to that [publicity], but all that matters is that the CLC, as a community, is able to maintain a collegiality where we support each other and our own reference groups do not put pressure on us to politicize the process. [. . .] You must have your judge’s hat on. (Member 8)
Furthermore, the CLC uses various unofficial rules and practices to safeguard its work and regulate boundaries between legal logic and media logic that demands openness and transparency. In our interviews, politicians, experts, as well as journalists expressed that CLC members should not talk about pending cases in the media. Instead, communications with journalists are organized centrally. The chair of the CLC informs journalists about the progress of CLC proceedings. A press conference can be held once the CLC has decided on a case. Such practices illustrate the ability of the CLC to open to media logic and serve journalists while simultaneously safeguarding its core legal logic, as stated by one CLC member: These pressures are quite intense when the matter is of interest, as they now appear to be. There are always long queues of journalists right behind the CLC [meeting room] door. Centralized communication and passing on information through the committee chair is the model that we have, and then there have been these media briefings [. . .]. (Member 4)
To manage the tensions between logics, the CLC provides media training to new members that strengthen the media rules and practices. This means that new members are taught to internalize the shared media rules and practices, as described by one interviewee: Journalists try to spy using half a word from individual members. If you ask five different members, each time from a different angle, you can deduce a bit from it, even from careful comments. That’s why we always have media training for new members, [for them] to learn that, in a way, you must bluntly refuse to comment at all, otherwise journalists can easily draw conclusions from the hearings. (Member 13)
The aim of such practice is to restrict the media’s access to the committee members and protect the legal logic of the CLC. The effectiveness of the rule was confirmed by our interviews with journalists, who argued that it is more difficult to obtain confidential information from the CLC than from other parliamentary committees. One interviewed journalist claimed that regarding leaks from politicians to the media, the “plug” is sealed more tightly in the CLC than in other parliamentary committees.
Breaching the Rules for Political Advantage
At times, the abovementioned rules are breached. Members of the CLC occasionally seek public attention and political advantage and talk to journalists in ways that are at odds with CLC’s media practices and the character of the CLC as a neutral legal body. As some of the CLC’s media practices are informal agreements and not legal regulations, they depend on collegiality and a shared understanding of the importance of restraint when it comes to the media. Indeed, one member talked about the “honorability” of the CLC members, referring to shared ideas regarding the status of the CLC. However, the interviewee also cited a case in which one member developed a “publicity addiction” and deviated from common practice by commenting on CLC issues in the media. This deviation led to further breaches of unwritten common practice as the temptation for other members to gain media publicity rose. The result was a difficult situation in which several members of the CLC began to appear in the media as the elections approached. This fed “a loss of morale,” as one MP put it: This [. . .] began to lead to such a loss of morale that other members began to give at least partial comments. [. . .] From a political perspective, the elections are approaching, and one member is taking up space in the media, [so] should I say something to get my name and face out there as the elections are approaching? (Member 7)
Sometimes, CLC members are willing to give journalists anonymous background information about CLC proceedings. A journalist must be able to build a confidential and trusting relationship with a CLC member to receive delicate information from the CLC (Davis 2009). The precondition is that nothing can be traced back to the individual CLC member. Thus, the information given to the journalist must be handled in a careful manner. One political journalist stressed how important it is to be aware of the common rules regarding what to write and when: When they [members] have seen it [a journalist’s work] a couple of times, [they’ll say] ‘It's okay, you can trust this [journalist], and it’s ok to tell her something as background information. She won’t write anything before the proceedings are over.’ That’s how you build it [trust]. But if you were to write that ‘according to our sources, the members of this party are going to decide like this,’ you would not hear anything [from CLC members], not even for background. (Journalist 15)
Such tacit rules and practices regulate the relationship between the legal logic of the CLC, political logic, and the media logic according to which journalists operate. One CLC member characterized the dynamic as a “transaction” in which a politician provides information to a “trusted reporter” in exchange for publicity and political advantage provided by the journalist in the future (see Gans 2004).
If someone talks to their trusted reporter, it is a transaction: ‘I will tell secrets, you will continue to ask me, and I will get some visibility in the future.’ [. . .] If you're always, like, ‘I'm not saying anything,’ the reporters will turn to someone else. (Member 15)
Therefore, to obtain confidential information from the CLC, journalists must be well networked and known as reliable actors. Another journalist highlighted that delicate information is often shared with journalists who are known for their willingness to publish information. The following excerpt, which illustrates a case where media and political logics reinforce each other (Landerer 2013), shows how CLC members are well aware of media logic and journalists’ willingness and need to publish newsworthy stories.
Sometimes I feel like they take advantage of the fact that some [journalists] are willing to publish information as it is. In a way, the leaker takes advantage of the fact that the media has different profiles. (Journalist 10)
Media Leaks as Political Tools and Weapons: The Domino Effect
Although the CLC aims to protect its legal logic via common rules and practice, members or their parliamentary assistants may leak confidential information from the CLC to journalists to advance their political interests (see Reich 2008). These leaks might consist of drafts of upcoming CLC decisions, for example. A leaker can try to influence CLC decisions by creating media pressure. As one journalist pointed out, leaks often happen when the CLC is about to decide on a politically controversial matter. As an example, another journalist described how a draft of a CLC statement was leaked to the press to influence an upcoming CLC decision on the constitutionality of the Finnish social and health care reform legislation.
So when it [the draft] was leaked, it was leaked for political reasons [. . .]. It was intended to bring down the project, and it succeeded. (Journalist 5)
When leaks occur, the media rules and practices that are supposed to shield the CLC from politicization are often disregarded as other CLC members quickly follow suit in leaking information. Thus, a politicizing domino effect is created, leading to additional leaks from CLC members who see that their colleagues are no longer following the rules and are, instead, attempting to gain a political advantage.
When the CLC members read the papers and notice that they are writing about secret expert statements, that's when the dam breaks. [. . .] They think that someone has begun politicking from the inside, and now we are going to strike back. (Journalist 15)
Legal Experts, the CLC, and the Media
Legal experts have started to play an increasingly prominent role in the public debates on CLC issues. These experts sometimes navigate between various logics, balancing their legal duties and authority with the aim of pursuing media attention. Since CLC hearings are held behind closed doors, the consulted experts should not comment on internal CLC discussions or on other experts’ views in the public domain. However, the experts are, in principle, free to talk to the media about the views they themselves have given to the CLC. Thus, in terms of official rules, experts have more leeway than members when it comes to media appearances.
Indeed, how experts relate to the media is also, to some extent, regulated by unofficial and rather ambiguous practice. This is reflected in the fact that experts have differing principles regarding media appearances. According to our interviewees, many experts refrain from media appearances to protect the CLC from media and politics, as illustrated in the excerpt below: Once the matter has been resolved by the CLC, it can be debated in public, whether I think it [the decision] went right or wrong. But I think it is wrong to try to influence a pending case through publicity. Here, experts have somewhat differing principles regarding their willingness to make statements in the media after a committee hearing. (Expert 11)
Such discretion and respect of the legal logic of the CLC is often expected from the experts. Our interviewees confirmed that CLC members are usually critical of experts who are regarded as active media commentators. Providing expert commentary on ongoing processes to the media is viewed as a breach of established practice and the authority of the CLC. Some individuals were singled out in the interviews as experts whose regular media appearances are frowned upon in the CLC. One CLC member clarified that experienced experts understand “that defending the prestige of this institution is more important than getting one’s own name in the paper.” The same member criticized experts who “give big interviews or write on blogs” while a case is pending. Such activities go against the “unspoken contracts” of the CLC. Even though the affordances of, for example, social media might broaden the media debate on constitutional processes, such openness is seen as going against legal logic.
This constitutional review as a system and as an expert institution is based on unspoken contracts, and such actions are therefore a bit problematic. This is not a statement against open discussion; it is just that the roles should be understood better. (Member 9)
Considering this, the CLC has attempted to curb experts’ appearances in the media by going through the “rules of the game” with the experts, as stated by one member: We had to discuss the rules of the game with our experts. Since then, I think that the experts consulted by the CLC have been quite silent in terms of giving public comments beforehand, of if they have, they have been quite careful. There are a few legal experts who are very active [in the media], but they are not consulted by the committee that often. (Member 7)
This illustrates the ability of the CLC members to protect established practice. Members aim to defend legal processes from mediatization and politicization. If an expert constantly breaches the related rules and practices, CLC members might be reluctant to involve the expert in future hearings. When asked whether it is possible for an expert to be excluded from the list of consulted experts on these grounds, a CLC member responded as follows: Yeah, if, for example, an expert takes a very strong public position on a political proposal and the committee considers that the expert is not neutral on this issue, [. . .] there is no point in hearing that expert. (Member 6)
Social Media Pressure
Social media and other digital communication platforms, with their own intrinsic affordances, have become a primary forum for political debate. Recent studies have shown that social media use is an integral part of Finnish MPs’ work routines and interactions (Mannevuo 2023). In recent years, some Finnish legal experts have also been active in discussing constitutional affairs on social media and on blogs, taking advantage of new forms of media and the interest in constitutional issues.
The presence of social media logics is felt in the CLC as well. The fast-paced nature of social media is often ill suited to the established practices of the CLC. As one MP put it, the CLC is a “slow institution,” whereas the current communications environment requires the constant attention of politicians: The rapid nature of the news cycle is one of the problems. The CLC is a slow institution, while everything [else] is 24/7, not just social media, [so] the politician must [also] work 24/7. People can get in touch with you whenever; you’re in contact through social media, and the public pressure is completely different [from how it used to be]. (Member 8)
The CLC must therefore be able to isolate itself from not only traditional media pressure but also social media logics (Van Dijck and Poell 2013). This requires CLC members to remain “cool-headed,” as one member described: You must remain cool-headed, but now, social media has a staggering effect on people. Social media rage can flare up suddenly. If you look at politics, someone makes a preposterous post, and they get thousands of likes. In constitutional matters, you cannot get too deep into social media. (Member 8)
Despite the ever-increasing presence of social media, the CLC has practices that help to mitigate the tension between legal logic and fast-paced digital media. One CLC secretary mused about whether the CLC should have its own Twitter account. Twitter, rebranded as “X” in summer 2023, could be a useful tool for the CLC to share opinions and statements. However, the cons of opening an account for the CLC have so far outweighed the potential pros. The secretary concluded that the publicity generated by social media visibility could be harmful to the CLC.
I have sometimes wondered whether the CLC should set up its own Twitter account and thereby communicate its own statements. I have always ended up thinking that this would be a never-ending task. It would easily lead to discussions, and we would have to explain a statement or say more about it, and that is of course something that we cannot do. (Secretary 2)
For similar reasons, many of the interviewed experts expressed a reluctance to use social media actively and said that they use these channels sparingly, if at all. Many of the experts shared the belief that social media is not a suitable arena for constitutional debate. In particular, X (formerly Twitter) was often criticized in this regard in our interviews.
In contrast, some experts said that they actively use social media, including X. They described it as a great way to open the debate on constitutional matters and communicate their own ideas not only to the public but also to their colleagues and journalists. This notion is backed by an interviewee who confirmed that journalists routinely and closely follow some constitutional experts on X.
I mean, it’s funny, every time the CLC gives a statement [. . .] reporters go on Twitter to check whether [experts’ names removed] have commented on the issue, and usually they comment within minutes. (Journalist 15)
Conclusions and Discussion
In this article, we have contributed to the scholarship on mediatization by analyzing how the logics of law, media, and politics collide and compete within constitutional review. It has been argued that, increasingly, institutions from politics and bureaucracy to science have become mediatized (Campus 2010; Figenschou et al. 2019; Strömbäck 2008; Väliverronen 2021), their core logics being affected and subsumed by the need to comply with the logics of independent media. At the same time, however, scholars have argued that mediatization is not the only logic at play (Brants and Van Praag, 2017; Hjarvard, 2018; Landerer 2013) but other institutions with their operational logics may affect the media as well. We have contributed to this scholarship by illustrating how legal, media, and political logics coexist, entangle, and collide in the constitutional review and how actors involved in the constitutional process manage the tension between different logics. This aspect is particularly visible in our case. Following a constitutional review system that is relatively common in Europe, the CLC of the Finnish Parliament bears the main responsibility for assessing the constitutionality of legislation. In the Finnish system, democratically elected politicians, aided by academic experts and officials, are responsible for conducting constitutional reviews ex ante, before proposed bills turn into laws.
We have shown how MPs, following a political logic, may seek to deviate from their legal role to use their position in the CLC to gain a political advantage. They may feed confidential information to a trusted journalist, making use of established media logics. Furthermore, some legal experts whom the CLC consults use the affordances of digital media to open political debates on CLC matters in ways that are at odds with neutral legal deliberation and established CLC practice.
Importantly, however, our findings do not indicate a straightforward process of colonization in which political and media logics override legal reasoning. Instead, actors within the CLC manage both media and political logics to protect the core of constitutional review. To do so, they often employ defensive media practices (Kantola and Vesa 2023; Nölleke et al. 2021; Scheu 2019) that seek to safeguard legal logic. Such practices are partly formal and stem from the Finnish Constitution and official parliamentary practice. The committee meetings are held behind closed doors, and CLC discussions are confidential.
However, formal rules alone cannot fully resolve the tensions between law and politics, since the legal process of constitutional review is a political occasion too, and political actors have legitimate roles to play in the process. According to our data, the CLC members are highly motivated by the authority of the Finnish Constitution and the reputation of the CLC as an unbiased legal institution. However, CLC members sometimes breach the legal logic of the committee to follow a political logic and advance their own interests. Thus, there is no clear-cut solution to the tensions between various logics. The actors involved in constitutional review aim to manage the process using a set of unwritten and informal practices. In line with established (yet informal) practice, most legal experts whom the CLC consults tend to refrain from publicly commenting on pending CLC cases. In the CLC, communications with the media are centralized. The chair of the CLC is entrusted with the role of communicating with journalists, while other members are advised to refrain from commenting on pending CLC cases in the media. Importantly, the aim of such practices is not only to defend legal processes from media attention but also to serve competing institutional goals and mitigate the ever-present tensions between logics. For example, while defending the functionality of the CLC, the committee seeks to guarantee that the media is given relevant information on the review process, supporting the notion that the relationship between institutional logics is dynamic and reciprocal (Hjarvard 2018).
Our observations regarding the publicity rules of the CLC are, to an extent, in line with previous mediatization studies, which have found that legal institutions are more immune to the effects of the media than many other institutions (Kunelius and Reunanen 2012: 69). However, we also concur that the legal sphere is being mediatized and politicized as the line between political, legal, and media logics is porous. Constitutional review is characterized by ingrained interinstitutional tensions. Our findings thus support analyses that see mediatization not as a straightforward domination of media logic but as a dynamic process in which various logics compete, coexist, and sometimes recede due to the practices of institutional actors (Hjarvard 2014; Nölleke et al. 2021).
As the political relevance of constitutional processes is on the rise around the globe, our results suggest that the relationship between legal, political, and media logics should be explored further. We studied the case of Finland, where a parliamentary committee consisting of politicians—in cooperation with legal experts and committee secretaries—is primarily responsible for controlling the constitutionality of laws. No doubt, the dynamics between legal, media, and political logics are different in constitutional settings where judges are responsible for assessing the constitutionality of legislation that has already entered into force. In ex ante nonjudicial review, such as the one taking place in Finland, the reviewers are politicians and the content of the legislation is open to political debate, which makes the tensions between law, politics, and the media more visible than they might be in cases of ex post judicial review. It is therefore necessary to analyze the various logics at play on a “micro” (Lundby 2014: 22) level, exploring how constitutional actors—guided and incentivized by various logics—operate as different logics collide and how the actors regulate the boundaries between law, politics, and the media.
While the notion of mediatization remains a tempting and useful concept for media scholars to use to highlight the importance of the media, we should also acknowledge the limits of media logic and analyze its interplay with other powerful institutional logics in a more detailed manner. Thus, we might gain a better understanding of how the media does not necessarily dominate other institutions but is linked and interwoven with them through informal practices that seek to regulate the power relations between different institutions.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Helsingin Sanomat Foundation and the Research Council of Finland (Grant No. 332669).
