October 9, 2013
"If Congress tried to limit spending by newspapers, the courts would reject such meddling as a blatant violation of the First Amendment."
"Likewise if Congress tried to accomplish its goal indirectly by limiting the amount of money newspapers receive from advertisers," Jacob Sullum begins his explanation of the campaign finance case that was argued in the Supreme Court yesterday.
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45 comments:
Why is something this obvious not obvious to the lower courts?
And how do you define "newspaper"? Couldn't the Koch brothers start a "newspaper" and deliver it to all voters prior to the election?
Newspapers and JornoLists should be required to disclose their party affiliation as part of the disclaimer before every article an OpEd.
The SCOTUS has been slowly, step by step, backing away from Buckley v. Valeo for some time now, and this case is likely to be another step in that direction. The contradictions between the Court's First Amendment rulings and the justifications for campaign finance restrictions are quite stark -- they were all on display during the argument -- and are just getting starker wit each nes case in the line. It comes down to the disagreement over whether the appearance of corruption generated by so much money sloshing through political campaigns is sufficient to trump a person's First Amendment right to spend whatever he wants to support whatever political message (or candidate) he wants to support. The usual deference given to Congress' policy choices is weaker in this context, where the amendment is framed as a prohibition on Congress' power to make a law. But no one (certainly no one on the SCOTUS) takes that wording as creating an absolute -- they're all into the need to balance freedom of speech against other supposedly important policies. At that point, it's just a question of how you strike the balance and who gets to strike it, which always turns on how heavily you think the competing values on each side of the scale should weigh.
One of the stranger aspects of the campaign finance cases is the focus by some of the lefty judges on class-based rights in the First Amendment context (e.g., Ginsburg's solicitousness for the 'little people' who might be drowned out by all the noise and attention that the 'big people' can command). Freedom of speech and freedom to petition for redress of grievances are, at their most basic level, personal rights exercised by individuals, and only secondarily social rights exercised by groups. The group-based focus on the imagined plight of the 'little people' is an aspect of the difference between lefties and righties on whether the constitutional ideas of equality and freedom are about a level playing field where each seeks his own definition of happiness, or more focused on assuring some level of equality of outcomes ('fairness' which is usually in he eye of the beholder), with the less able/successful getting transfers from (and sometimes gov'mentally enforced preferences over) the more able/successful to make it all work.
Brandeis and Holmes liked to talk about the 'marketplace of ideas,' with more speech as the preferred solution rather than gov'mental regulation of speech. The market metaphor is quite telling. You can see so much of this campaign finance debate as an exercise in trying to figure out whether we are dealing with a market failure, some kind of externality that the 'political' market can't or doesn't internalize into prices, or whether instead the political marketplace of ideas is working just fine, and thus there is no basis for gov'tal intrusion. In the latter case, the classic economic concern would be whether gov'tal intrusion was just a cover for some players to use the regulatory scheme for rent-seeking, anti-competitive purposes. Scalia hit on that theme when he suggested that these campaign finance restrictions were favored by incumbent politicians because they are their main beneficiaries. Sounds right to me.
"Why is something this obvious not obvious to the lower courts?"
The lower courts are bound by Supreme Court precedents. The 3-judge panel that decided the case below was explicit about not "anticipating" what the Supreme Court might do.
From the decision:
"Although we acknowledge the constitutional line between political speech and political contributions grows increasingly difficult to discern, we decline Plaintiffs’ invitation to anticipate the Supreme Court’s agenda. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”)."
That's the way it works.
AA
I know you're correct, yet here in NJ an activist Judge just declared that NJ must make gay marriage legal.
Judges must adhere to stare decisis as that is the foundation of how precedent works. Chaos results without it.
Judges can, however, draft opinions in a way that shows they agree with the arguments advanced but still reject them, thereby deferring to the principle. It could make cert easier if the Supremes are interested in examining the precedent that may be outdated.
Talking in quaint metaphors of the media yesteryear when campaign advertising was done in newspapers is deceiving. Likewise the street corner or the village square of the past is not available to everyone who has a good idea. If you need to communicate to millions of people that free speech now requires astronomic sums of money for TV ads. Complex issues are reduced to sound bites. Is that benefitting us?
If we want to preserve freedom of speech and the value of elections we should be discussing that, not how to make elections all about who can raise the most cash.
We need to structure campaign finance laws in terms of their actual effect versus the need for the citizens to obtain information and clarity on issues and candidates. What do we want and how do we get there? We know the law can be bent and interpreted to justify any position, like Justice Roberts calling the Obamacare insurance mandate a tax.
R. Chatt said...
We need to structure campaign finance laws in terms of their actual effect versus the need for the citizens to obtain information and clarity on issues and candidates. What do we want and how do we get there? We know the law can be bent and interpreted to justify any position, like Justice Roberts calling the Obamacare insurance mandate a tax.
I used to believe that people should be free to donate whatever amount they want and candidates would have to report all donations within a few days. Now, we've seen how leftists are using donor lists as a weapon of harrassment. Every election season, we get bombarded with countless TV ads but how effective are they? If you want to distribute a large amount of information, TV ads are the last thing you'd use because they're too expensive. Posting on the Internet and using ads to direct people to your website seems more effective than a meaningless 30 second sound bite.
As to what kinds of specific campaign finance laws we need, I wonder if we need them at all. They all seem like restrictions on political speech to me and most are designed to benefit incumbants at the expense of challengers.
Well! We just can't have Conservatives donating as much as they WANT!
Sam L. said...
Well! We just can't have Conservatives donating as much as they WANT!
Oh, no! That will not do! Liberals, on the other hand, can contribute as much as they want.
Does anyone else find it strange that the assumption here by the left is that if the reins are taken off of corporate giving that the money will all come in a flood to the Republicans? There is simply no evidence for this, and the Left's belief that this will happen is simply a fossil of Marxist belief that the corporate rich will always vote their "class interest".
Leaving aside donations by unions & individual bundlers for now, polls have shown again & again that, while those worth $1 - 15M tend to be Republican, once one gets above $15M the split becomes close to 50/50. There's no shortage of mega-millionaires among Democratic donors. Not surprisingly, blue-state billionaires tend to vote like their not-quite so wealthy neighbors, and the same for their red-state counterparts.
Does anyone else find it strange that the assumption here by the left is that if the reins are taken off of corporate giving that the money will all come in a flood to the Republicans?
Why do you believe this?
My objection to unlimited contributions is that it corrupts the political system by giving an inordinate amount of power to the very wealthy.
What we need is a simple constitutional amendment: Money is not speech.
Buy politicians online. That is the way the middle class can own politicians too.
"Money is not speech"
Yes it is. Take Mitch McConnell par example. In order to "level the playing field" in KY for Republicans one would have to move the two major newspapers in Louisville and Lexington out-of-state. And how does one overcome the fact that the Donkeys out-register the Elephants by 2:1 in Ky. except by huge amounts of spending on media?
"Money is not speech."
Money is not itself speech, but speakers use money to get their speech out to people who can hear it. Did you even attempt to read Sullum's argument?
What if Congress put a limit on the amount newspapers could spend? Hold the NYT down to a small operation.
Then the little people could count some.
I think that the amount spent on campaigns is obscene. Maybe it's time to limit the total amount that can be spent rather than what people can contribute. If the parties end up with more money than they can spend on their campaigns they have to spend it on some public service project.
That's just an idea.
Freder wrote My objection to unlimited contributions is that it corrupts the political system by giving an inordinate amount of power to the very wealthy.
You mean like incentivizing the parties to run millionaires for office because millionaires can spend their own money? Is that what you mean?
And how does one overcome the fact that the Donkeys out-register the Elephants by 2:1 in Ky. except by huge amounts of spending on media?
If this is true, then why does Kentucky have only one Democrat in its congressional delegation. It would seem to me that the will of the people of Kentucky is being subverted.
You mean like incentivizing the parties to run millionaires for office because millionaires can spend their own money? Is that what you mean?
That is one of the things I mean.
Money is not itself speech, but speakers use money to get their speech out to people who can hear it. Did you even attempt to read Sullum's argument?
Yes I did and I heartily disagree with his argument. First of all, the comparison is inapt because newspapers do not contribute to political campaigns, nor do they run for office.
And where did I say that money is not speech? Read my post again, more carefully this time.
I think that the amount spent on campaigns is obscene. Maybe it's time to limit the total amount that can be spent rather than what people can contribute.
I disagree, the amount of money spent on political campaigns is a fraction of what’s spent on more frivolous things like potato chips. More the point, putting a limit on what a campaign could spend just means that if you have a biased media outlet (who is exempt from campaign finance laws for First Amendment reasons), all you’re doing is disarming whichever candidate isn’t liked by the MSM.
The Money Behind the Elections is absurd and obscene.
BTW, do political parties pay taxes on the money they receive?
First of all, the comparison is inapt because newspapers do not contribute to political campaigns, nor do they run for office.
Not monetarily no, but through their biases and agendas.
I was already going to comment that this whole issue is moot anyway, because even without money the Democrats still have the weight and power of the liberal media, Hollywood and the academia to more than make up for any money donated.
Campaign contributions can come in many forms. Of course, money is the most obvious type of contribution but not the only one. You can have "in kind" contributions such as union members or other groups donating their time to work call centers and get out the vote efforts. No money changes hands (or isn't supposed to) but there's the value of the donated labor to consider. Likewise, the media sells advertising space or time to different candidates but things like biased press coverage and editorial pieces are another form of in-kind contribution. You can't regulate that because of the 1st Amendment, so the only alternative a candidate who isn't favored by the press has is to raise money to buy advertising. Even then, having more money isn't a guarantee of success. In the recent recall elections in Colorado, the Democrats being recalled had many times the amount of money as those working to recall them. More money doesn't always win elections but it surely does help.
Freder Frederson,
First of all, the comparison is inapt because newspapers do not contribute to political campaigns, nor do they run for office.
You don't think, say, a New York Times endorsement is a material help to a candidate?
Money is like water to my house's foundation. I can try to devise many ways to keep it out, but it will always find a way to get in. No law will stop people of getting money to "their" politicians. How may of Hillary Clinton's "bundlers" have pleaded guilty over the years?
The *only* way to keep money out of politics is to remove the incentives. If politicians weren't distributing so much money and picking winners and losers in industry, there wouldn't be such an incentive to subvert the finance rules.
The entire problem here is that people have conflated "freedom of the press" with "freedom of 'the media' to say whatever they like," and have thereby lost sight of certain facts:
-- "The press" doesn't mean "the corporate media";
-- The corporate media are, well, corporations;
-- Said corporations have always been allowed to endorse candidates and otherwise electioneer as much as they like, just because.
Money is like water to my house's foundation. I can try to devise many ways to keep it out, but it will always find a way to get in. No law will stop people of getting money to "their" politicians. How may of Hillary Clinton's "bundlers" have pleaded guilty over the years?
The *only* way to keep money out of politics is to remove the incentives. If politicians weren't distributing so much money and picking winners and losers in industry, there wouldn't be such an incentive to subvert the finance rules.
How about no limits on the amount anyone can contribute to anyone BUT the identity of the donor is hidden. Give 10 million to Obama if you want but he can never know it came from you. Probably not workable in this day and age.
This is what has to happen.
And they should have to pay taxes on the money they hide in thei campaign chests.
dix,
That would be terrific if possible, but it really isn't; there's no way to prevent a donor getting the message to a politician that, hey, I'm the one that put that $10M in your campaign fund. There are too many channels, most of which aren't monitored by anyone. I hope.
Oddly, the reason money is now more important than ever is because news and opinion aren't going through a few gatekeepers anymore. When my grandparents got their dish back in 2000 or so I knew the old paradigms were dead. So today you NEED a billion dollars to roll over your competitor. But it won't be long (unless Dems get their "net neutrality") until no amount of money will buy a national election.
I'm looking forward to it.
OTOH, if you Google "Terry McAuliffe" right now you'd have no idea the AP reported that he'd lied to Postal Inspectors in a mail fraud case.
Google has gotten past that "Don't be evil" phase I guess.
R. Chatt,
How about this time you address the recent Colorado recall elections, that (once again, it's hardly a unique case) the higher-spending side lost?
Freder, 1:36 PM: "What we need is a simple constitutional amendment: Money is not speech."
Freder, 2:14PM: "And where did I say that money is not speech? Read my post again, more carefully this time."
Her's my question: if the Constitutional amendment is so simple, so obvious, how come you have to disown it less than an hour later?
Oh weird. The part about taxing campaigns on their "income" (donations) didn't show up in my post.
"OTOH, if you Google "Terry McAuliffe" right now you'd have no idea the AP reported that he'd lied to Postal Inspectors in a mail fraud case. "
-- In McAuliffe's defense, the AP just straight up screwed up that report. Someone involved in construction [not as in, involved in funding it, but as in, actual hammer and nailing] with the initials T.M. was accused; this is obviously not McAuliffe.
He just took the jerk's money and held on to it.
"First of all, the comparison is inapt because newspapers do not contribute to political campaigns, nor do they run for office."
-- Then what was wrong with Citizen's United? If I recall, the were not contributing to political campaigns or running for office.
A better solution to the problem of campaign contributions corrupting politicians is to punish the corrupt politicians. The easiest way would be to pass a law (or constitutional amedment) which said that any officeholder who had received more than some amount of money from contributers, or some amount in contributions above a certain limit, for a certain number of elections, creates a rebuttable presumption that the officeholder had taken bribes. If the officeholder then retires from politics, and gives up their right to vote, they will not be tried; otherwise, the prosecutor can try them, and the burden of proof will be on the officeholder.
I think it's worthy and important to draw a line between speech and money. Congress has no authority to regulate speech, and plenty of authority to regulate money.
"If Congress tried to limit spending by newspapers, the courts would reject such meddling as a blatant violation of the First Amendment."
Yes, but that is a clear and obvious attempt to suppress speech.
Trying to stop corruption of public officials is not a clear and obvious attempt to suppress speech.
Whose speech is being suppressed? Jeff Bezos just bought the Washington Post. He can say anything he wants to say.
But it's entirely appropriate to limit his ability to buy government officials.
Citizens United was an obvious attempt to suppress speech. Books were stopped, movies were shut down.
What is the speech that is being censored here? Who is not allowed to talk? We're speculating that speech will be stopped down the road. It's rather like those speculative injuries that we hear about in free speech cases.
If we allow this speech, the mob will riot.
If we allow the government to regulate contributions, speech will be silenced.
It's stupid speculation about possible future events that have no real bearing on whether this is actual censorship or not.
"Yes I did and I heartily disagree with his argument. First of all, the comparison is inapt because newspapers do not contribute to political campaigns, nor do they run for office. "
In 1994 I worked with a congressional campaign briefly, "Nacy Norman for Congress", in the Albany NY area. The Albany Times =-Union devoted an entire page of coverage to the incumbent Democrat McNulty announcing he was running for reelection. Nacy Norman's press conference announcing her candidacy was 2 blocks from the Times-Union building, and they WERE invited to cover it. They didn't. At all. Ever. But go ahead and in your make believe world think that "newspapers do not contribute to political campaigns." The rest of us prefer dealing with reality.
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