April 3, 2014

"I had never heard of such limits. Somebody... showed me a chart on the federal rules of campaign giving that was so complicated..."

"... I could barely make any sense of it. On the advice of their lawyers, most people simply comply with these rules and don’t raise questions. As an American engineer in the land of the free, I wanted to understand just exactly why my First Amendment rights were being limited."

Said Shaun McCutcheon, the McCutcheon in McCutcheon v. Federal Election Commission, decided yesterday, in his favor.
My Supreme Court case wasn’t about throwing out sensible limits on money in politics. It was narrowly focused on the “aggregate limits” for contributions under the federal election campaign law—the maximum amount that anybody can give to a number of candidates and national party committees combined. The case was not about base limits: $2,600 (for either a primary or general election) or $5,200 (for a primary and general election combined) to a single candidate in a two-year election cycle, or the separate amounts of $32,400 to a party committee or $5,000 to some PACs and $10,000 to state parties. Congress and the courts have determined that these limits are so low that they don’t pose any risk of corrupting candidates or our political system.

It was the aggregate limits on giving to the candidates and committees that made no sense to me. The consequences of these rules were absurd. I could give the legal amount of $2,600 to 17 different candidates. But if I give that same legal amount to an 18th candidate, it constitutes a violation that somehow corrupts the system.
Lawprof Richard L. Hasen has a piece in Slate that's called — dramatically — "Die Another Day." Die another day, because X hasn't "died" in McCutcheon, but McCutcheon is a step toward the death of X, which should distress us, if we care about X. So even if you, like Shaun McCutcheon, think it makes no sense to stop a person from giving $2,600 to one too many candidates, you're supposed to be mad about the Supreme Court opinion because it portends further damage to the entity that's lumbered over the landscape for so long under the banner "Campaign Finance Reform." It's lost a few limbs along the way, but it's not dead yet. What it lost in McCutcheon was perhaps a useless appendage, capable only of flailing about and hurting well-meaning folk like Mr. McCutcheon, but Hasen wants you to take alarm, because McCutcheon foretells death!!!... death to whatever it is at the core of Campaign Finance Reform that we ought to want to keep.

McCutcheon is "subtly awful," Hasen says, revealing his awareness that ordinary readers may, like Shaun McCutcheon, think the aggregate limits make no sense and therefore the Court got it right. The Court "sidestepped... the question of whether to apply 'strict scrutiny'" because the difference between strict scrutiny and the less demanding form of scrutiny ("exacting scrutiny") didn't affect the outcome because the government's asserted interest had so little to do with aggregate limits. If the level of scrutiny wasn't raised, then what's "awful"? Or is it "awful" to Hasen precisely because he can't find anything unsubtle? You need something dramatically awful to stir up the public's antagonism toward the Supreme Court, so Hasen's idea is that Chief Justice Roberts is devilishly subtle.

Roberts, the subtle devil, has done 3 things that Hasen wants us to find ominous.

First, Roberts said the government could only justify its restrictions of campaign contributions in pursuit of the interest in preventing quid pro quo corruption. Hasen says: "Equality, for example, is a forbidden interest under the First Amendment." He means: The government can't justify restricting freedom of speech on the ground that it is trying to promote equality.

Second, Roberts performed "exacting scrutiny" in a manner that seemed rather... exacting. See the devious subtlety? Hasen does:
Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?
Hasen — to my amusement — goes directly from noting Roberts's avoidance of "an opinion that dramatically adopts strict scrutiny" to "Third and most dramatically..." Most dramatically? I thought the whole idea was that Roberts was doing 3 things that were subtle and not dramatic, that he was the no-drama guy. In that context, what does it mean that the third thing was the most dramatic? This is practically a Zen koan. What is the sound of one hand clapping and what is the drama of no drama? Is the most dramatic subtlety the thing that is most subtle? It's so subtle, it's dramatic. I am deafened by the silence and dazzled by the darkness.

But let's plod on, across the legal landscape, where the wounded entity Campaign Finance Reform stumbles toward its Roberts-dug grave. There's a third thing to be explicated. It's dramatic, we've been warned. Here it is:
Third and most dramatically, the court seems to open the door...
Egad! It's the dramatic semblance of opening a door.
... for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. 
How did Roberts seem to open that door? Because that ban is based on wanting to stop citizens from buying access to elected officials, and Roberts seemed insufficiently concerned about that problem. At this point, Hasen resorts to a long Roberts quote, which I suspect few of his (or my) readers will take the trouble to absorb, so let me just tip you off that it contains the buzzword of this post "dramatically":
When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.
Roberts subtly-dramatically values "join[ing] together to further common political beliefs," and he's inclined to characterize widely distributed contributions in that light and to resist the government's attempt to lump them together with bribery and the quid pro quo contributions that are hard to distinguish from bribery.

Having set out those 3 subtle/dramatic things, Hasen tells his readers not to be "fooled by Roberts’ supposed restraint." I don't think Roberts is trying to "fool" anyone, and the modest framing of the opinion is real: Roberts did not elevate the level of scrutiny beyond "exacting" and he did not recognize a government interest beyond preventing bribery and quid pro quo corruption.

And I don't think Roberts purports to take what is traditionally called a position of judicial restraint, which is: deference to the acts of legislatures, presuming their constitutionality. Roberts is taking the First Amendment seriously and stepping up to the classic judicial role of saying what it means and enforcing constitutional rights. That's what typically gets called judicial activism by those who like something the legislature has done and who don't have much respect for the particular version of the constitutional right asserted in a case.

But Hasen, who likes campaign finance reform legislation and doesn't respect the version of the First Amendment asserted in McCutcheon, found it hard to call Roberts activist. That's what was so frustrating, so devious: If you're going to be activist, be activist out in the open where it's easy for your opponents to attack you as activist. But no, the serpent was subtle....

115 comments:

Jay Retread said...

Jay Retread said...
I suspect that the end is coming to caps being placed on giving to individual candidates.

Roger Sweeny said...

Letting politicians set the rules for elections is like letting Microsoft set the rules for how every PC must be built. And then extending that power to smartphones and tablets when they cut into the PC market.

Brando said...

"Campaign finance reform" isn't dead, because it was never actually alive. All we ever had were arbitrary and circumventable limits established to make it harder for some individuals to support candidates and for some candidates to raise money for their campaigns.

So long as the very wealthy candidates can self-fund their campaigns, or sophisticated bundlers could gather thousands of small donations, or media entities could attempt to skew their viewers/readers towards one side or the other, we'll never seriously reform campaign finance.

And so long as that is the case, it makes far more sense to get rid of any limits, and instead require full disclosure by candidates of where their campaign funds are coming from. Actually bribery is still illegal, and if voters actually care whether a candidate is unduly dependent on donations from unsavory sources, they can react with the voting booth.

If your concern is instead that well funded candidates who are too beholden to donors have too much of an advantage over other candidates, then make the case for public financing of campaigns. But making it "harder" to raise funds only benefits those who are already entrenched or advantaged by their own money.

Good riddance to these stupid rules.

Once written, twice... said...

So Roger, elections have all kinds of rules, including times, place, how. etc. who actually should be setting the rules for elections if not the legislative branch with judicial oversight?

AJ Lynch said...

Professor- your old crush, Russ Feingold, must be despondent.

Ralph Hyatt said...

"elections have all kinds of rules, including times, place, how. etc. who actually should be setting the rules for elections if not the legislative branch with judicial oversight?"

The rules governing those things are set by the respective states.

MayBee said...

Exactly, Brando

The. Knute Congress passed these laws, they started to look for ways to circumvent them.
The best way to control them is not to push for laws changing what citizens can do, but what politicians can do with that money.
There sure do seems to be a lot of rich politicians and campaign advisors running around. Maybe they need a windfall tax slapped on them.

MayBee said...

Knute congress?

The minute congress. Oosh.

Bob Ellison said...

The left fears this the way the right fears gun-control.

Each side knows what victory looks like to the other side.

The left wants all guns in government hands. All guns. All.

The right wants complete freedom in funding campaigns. Complete freedom.

David said...

We can hope that in a more enlightened future all of the attacks on freedom of expression that we see now will be viewed as a dark age. From regulations of political expression through campaign spending limits to campus speech codes to shaming of opinion through legal but detestable private actions, there is a broad effort to limit what we can say, and how we are allowed to say it.

It's nice to believe that the nation will come to its senses and realize what a repressive effort we have on our hands. I am not at all sure that is the case. This seemingly simple case was decided by one vote against a snarling dissent. The power of the state is heavily involved, and the control of the state's power is at stake. I believe the attitude of the minority dissent in this case foretells that they would readily overrule it if the extra vote arrived.

Presently the left is the main force for suppression of speech and restriction of political freedom. That has not always been the case, and will not necessarily be the case in the future. The repressive urge can surface all across the political spectrum. In the long haul it's an equal opportunity abuser.

who-knew said...

So called campaign finance reform has ever and always been an incumbent protection racket and has just moved the money around and made the lawyers who could figured out how to circumvent it rich. Like most of their pet causes, liberals see the continuing failures as a reason to do more instead of to do something different (that maybe would work).

Henry said...

Brando cuts to the chase quite succinctly: "Campaign finance reform" isn't dead, because it was never actually alive. All we ever had were arbitrary and circumventable limits established to make it harder for some individuals to support candidates and for some candidates to raise money for their campaigns.

I find it ironic that the long-term rabid support for campaign finance laws by the left (lets go back at least to 1971) parallels unprecedented spending in elections.

Campaign finance reform has utterly failed. It is the mesmerism of civic health. The anger on the left is the anger of those who wish to remain deceived: How dare the Supreme Court disturb our daydreams!

Unknown said...

The fact that there is so much concern about buying elections points directly at the real problem: Government has too much power. Otherwise, it wouldn't matter all that much. Rules and laws to make thing run and run smoothly should not be structured to favor individuals or individual businesses; such rule should be identified and restructured or dismantled.

PB Reader said...

Ultimately the limits will be eliminated because there should be no limit on speech, and money has been found to equate to speech.

MayBee said...

I never hear the left complaining about how much time and money our president spends raising money. He was in Chicago at a fundraiser just last night. and he can't even run for office!

If they really want money out of politics, maybe start there. Make laws about how the President can spend his time and our tax money.

Unknown said...

http://online.wsj.com/news/articles/SB10001424052702303978304579475860515021286

cubanbob said...

"... I could barely make any sense of it. On the advice of their lawyers, most people simply comply with these rules and don’t raise questions. As an American engineer in the land of the free, I wanted to understand just exactly why my First Amendment rights were being limited."

Indeed, why?

Bob Ellison said...

MayBee, that's because the left knows that laws are for the right. Pass a law and the right tends to follow. They drive 55 and vote just once.

The left doesn't do that. They drive 80 and vote early and often.

What percentage of pot dealers in Colorado are happy about legalization?

MayBee said...

It's like passing a law constraining how much money a citizen can give a financial advisor because people like Corzine and Madoff can beak the law using it.

That's how the current campaign finance laws are structured. That's what needs to change. Go after the behavior of the politicians, not the citizens. Tax their war chests. Limit the time the president can spend raising money for others. Limit the way they can share funds. Treat campaigns like corporations.

Bob Ellison said...

*is happy

Brando said...

Now there's an interesting idea--a special tax on money spent by campaigns, party committees, PACs and outside groups for each campaign cycle. The tax can even be progressive. While it won't be a disincentive towards campaign spending, it'll raise plenty of revenue and reduce some of the "inequality" between richer and poorer candidates.

It wouldn't pass Constitutional muster and violates all sorts of free speech principles, but I don't see why progressives aren't proposing something like this.

Bob Ellison said...

MayBee, I like that idea.

Back in the day, campaign donations were really just simple gifts to candidates. They got to use or keep them, as they wished. Dennis Deconcini (D) of Arizona said so in a newsclip that I can't find but was pretty famous around the time of his retirement.

In USA government studies, scholars know there is an ebb and flow of finance control. Something bad (like Watergate) happens, and something supposedly good (like creation of the FEC) happens in response.

It never works. Campaigns find money.

Brando said...

The Left is okay with Obama (and Kerry before him, and Gore, and Clinton....) raising and spending so much money because to them it's all about evening out their chances against the GOP which don't you know is in the grip of big business. The fact that big business seems okay with funding the Democrats doesn't seem to register.

mccullough said...

Hasen's just a disgruntled progressive. This modest decision adumbrates nothing.

If you're worried about democracy, Obama behaving like Nixon should be a bigger concern.

But just go back to whining about Bush v. Gore, you useless idiot.

MayBee said...

Indeed, Bob Ellison. Campaigns find money.

"It wouldn't pass Constitutional muster and violates all sorts of free speech principles, but I don't see why progressives aren't proposing something like this."

If you can specifically tax tanning studios, I don't know why you can't specifically tax campaign advisors.

sunsong said...

There is a movement to amendment the US Constitution to overturn Citizen's United. This ruling is adding fuel to that fire:

Lisa Bloom

MayBee said...

It will be fun to watch the PAC ads running for that Constitutional amendment.

Paco Wové said...

"a movement to amendment the US Constitution to overturn Citizen's United."

Yes, because it is vitally important for the government to be able to control the political speech of mere citizens.

"First Amendment"? A minor speed-bump on the road to Good Governance.

AJ Lynch said...

Sunsong- Keep dreaming - why should conservative states adopt an amendment where they would, in effect, unilaterally disarm and leave the far left MSM to continue to support the Dem policies.

Bob Ellison said...

Professor, I think you posted a shorter post with a "more to come" notice...maybe I'm wrong.

But the rest of your post reminds me of Sovietology (the study of the Soviet Union and its leaders' decisions) or Sinology (ditto for China, but for a while now, mostly for the PRC).

What exactly is going on in Roberts's mind, or in Hasen's?

I really don't care. They write. The writings are supposed to be declarative. If they fail to declare thereby, well, that's tough for the readers.

This urge to read minds, which seems to be endemic among lawyers and lawprofs, hurts society. We can't read minds and shouldn't try to. Let's read acts.

Big Mike said...

Thank you for the exegesis, Professor.

Anonymous said...

Re: "...which I suspect few of his (or my) readers will take the trouble to absorb..."

I read it twice. Not fully absorbed, but I feel moistened.

Anonymous said...

Perhaps I need a towelette.

Bob Ellison said...

This whole post, now that it is whole, I guess, is like a parody of legal argument. The terms are "federal election campaign law", "Campaign Finance Reform", "strict scrutiny" and "exacting scrutiny", "quid pro quo corruption".

Really, this is stupid.

SJ said...

but the serpent was subtle.

Who is the serpent in your tale?

I'm assuming Hasen, who is trying to tempt people into a particular opinion about this case.

But it might be Roberts. Or McCutcheon.

After all, Hasen is trying to insinuate that these innocent actions are really dastardly.

But I think it is Hasen's seeming innocence that is concealing something dark and suspicious.

Henry said...

I look forward to Prof. Hasan's "Octopussy" exegesis on the next 8-1 decision. Whatever it is, it's sure to be madly subtle.

William said...

Maybe the eye glazing phenomena is part of campaign finance reform by design. It's easier to perform sleight of hand tricks when your audence's eyes are glazed over......If you sincerely wish to give someone a million dollars and he sincerely wishes to pocket it, people of good will and a modicum of intelligence can generally find a way to complete the transaction.

jacksonjay said...

Social welfare program spending consumes 60-70 percent of the federal budget! When all is said and done with ACA subsidies, new Medicaid patients and demographic creep, I suspect the total will pass 75 percent.

Can anyone seriously argue that rich people control the government?

garage mahal said...

Maybe we should allow McCutcheon to just buy voters outright. For example, at $50 per vote you could buy a state like Wisconsin for approximately 50 million bucks. Not a bad investment for control over a 60 billion dollar budget. Instead of elections we just have auctions.

Or someone like Sheldon Adelson could just buy Congress. 1 million each to 250 House members, at a chance to control a 3.5 trillion dollar budget? This way the poor, poor confused billionaires have direct easy access to what they crave. Anything to make it easier for them I say.

MayBee said...

Why do politicians solicit for $5 contributions? I suspect to hide the fact they don't need you little people.

MayBee said...

Garage- Mccutcheon could buy voters? You mean maybe he could give them "walking around money"?

Bob Ellison said...

Why don't the Koch brothers just buy a union? Maybe the UAW, or the International Federation of Journalists?

A lot cheaper.

garage mahal said...

Maybee
Yes. Just send a voter money for their vote. Quick. Easy!

MayBee said...

What would be cooler would be if McCutcheon could get a law passed in Wisconsin making it so everyone who worked for the state had to belong to an organization that would take money right out of their pay checks and contribute it to the politicians he likes.

He could create a multi- million dollar self-generating campaign machine!
Or does that sound way too corrupt?

MayBee said...

" Maybee
Yes. Just send a voter money for their vote. Quick. Easy!"

He wouldn't have time to do it himself. He could maybe find people...oh maybe he'd call them "precinct captains". He'd go find voters willing to vote for $50 and make sure they get registered. He could maybe arrange bus rides to the polls to make sure they get there. On the bus on the way there, the precinct captains could tell people exactly how to fill out their ballots.
Is this too absurd?

Lance said...

Wasn't Justice Kagan supposed to be smart enough to pull John Roberts left-ward? How's that working out?

garage mahal said...

Is this too absurd?

I think you might be making it more difficult than it need be. The "auctions" could be done electronically.

But the hard part I suppose is making sure the voter votes the way you paid them to.

Todd said...

Hasen says: "Equality, for example, is a forbidden interest under the First Amendment." He means: The government can't justify restricting freedom of speech on the ground that it is trying to promote equality.

How right you are!

Hagar said...

Can anyone seriously argue that rich people control the government?


Yes. But they are not Republicans.

MayBee said...

Garage-
That's why he would pay people to help the voters fill out the ballots, by going to old peoples homes and less educated neighborhoods. If the people he paid to help were smart, they could come up with a name like OAK or SEED and claim to be helping the underprivileged vote. Really! They'd look like a charity, but they'd really be a way for McCutcheon to pay people to get him votes.

I wonder if it's possible.

Jonathan Card said...

Professor, I would be interested in your take on the Volokh Conspiracy article on this. Is that a fair dissection of the ideological differences? Is that an accurate history if the term "civil liberties" (I.e. American Civil Liberties Union, whose actions I've never quite understood and couldn't understand what it was considered "left wing", exactly)?

http://m.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/02/breyers-dangerous-dissent-in-mccutcheon-the-campaign-finance-case/

Thank you.

MayBee said...

Or I suppose, once MCCutcheon paid people to register (or paid someone to register people who otherwise didn't usually vote), he could just tell them *they* didn't personally have to vote. As long as someone would vote in their name.

I love it when a plan comes together.

Matthew Sablan said...

And, after McCrutcheon, we'll all be marrying goats -- or whatever the unacceptable slippery slope arguments are for a side Hasen might be unsympathetic towards. As for this: "He means: The government can't justify restricting freedom of speech on the ground that it is trying to promote equality," I hope that isn't what he means, but it is plainly what it means.

Does this mean that the government could force MSNBC to shut down, because it, in the aggregate, natch, provides Team Blue with too much power in the news, when combined with CNN and others?

Or, is that not the right kind of equality of free speech that the government can regulate, per Hasen? I'm actually curious what level of equality is worth tyranny in his mind.

Matthew Sablan said...

"I suspect that the end is coming to caps being placed on giving to individual candidates."

-- It makes sense; why should I only be able to give an obscene amount of money to support a politician if I am self-funding myself?

Bribery and quid pro quo arrangements are already illegal; if you can prove that's happening, you don't need the legal limit.

Is it unseemly?

Well, yes. Welcome to the democratic part of our republic.

jacksonjay said...

Yes. But they are not Republicans.

Yeah, those rich Democrats are buying the votes of "desperates" (Crack's term) with my money!

Michael said...

In which post we are reminded of why the general public is wary of lawyers. Or loathes them.
And law "makers."

Drago said...

Maybee, what do you think the odds are that garage was truly picking up on what you are doing?

Lol

Matthew Sablan said...

"Why do politicians solicit for $5 contributions?"

-- The same reason the first thing a salesperson does is ask for a simple thing, like your name or if you have a few minutes. Getting your customer to "buy in," in this case literally, makes them feel like they've already invested -- literally again! -- in the product/service, making them more likely to commit.

Matthew Sablan said...

"I think you might be making it more difficult than it need be. The "auctions" could be done electronically."

-- That's still illegal, even after this decision. No amount of slippery slope can even get you there, as bribery has nothing to do with my right to give money to causes I agree with.

Chuck said...

Professor Althouse: I think this was a beautiful post and I congratulate you. (It is funny to me how many people might think that this is sarcasm, and they'll be waiting for a punch line. There isn't a punch line. This was a terrific takedown of the all-too-serious Rick Hasen, who enjoys an extraordinarily outsized reputation on matters of campaign finance law. Note how none of the networks, none of the big newspapers, and NPR never go to Brad Smith for a quote. It's always the pro-restriction Rick Hasen.)

Chuck said...

garage mahal said...
"Maybe we should allow McCutcheon to just buy voters outright. For example, at $50 per vote you could buy a state like Wisconsin for approximately 50 million bucks."

garage, you underestimate the price of voters. I wouldn't vote for Obama, for fifty bucks.

And I don't think some poor people in Detroit or Chicago or Milwaukee are going to vote for Jeb Bush for fifty bucks. Because voting for Hillary Clinton will net them a lot more than fifty bucks. There's tax credits and SNAP benefits and Medicaid and housing allowances and unemployment extensions and community development block grants and money to their churches and etc., etc.

garage mahal said...

-- That's still illegal, even after this decision.

Why should it be illegal?

Matthew Sablan said...

"Why should it be illegal?"

-- Bribery is an actual action which is neither protected by, nor should be protected by, the Constitution. If you disguise a donation with a quid pro quo, that is also illegal.

Simply being able to give a candidate a chunk of change because I agree with their policies should not be any more illegal than writing a documentary about the horrors of the X or Y administration.

garage mahal said...

Doesn't seem fair that politicians and PACs can receive hundreds of millions of dollars but I can't send a voter one dollar to vote? How about if I don't tell them which candidate to vote for?
Why can't I pay people to register? Seems like my free speech is being trampled all over the place and I would like the Supreme Court to hear my case.

Matthew Sablan said...

"Doesn't seem fair that politicians and PACs can receive hundreds of millions of dollars but I can't send a voter one dollar to vote?"

-- You also can't send someone money to do lots of things. The parallel is not there.

Unknown said...

garage mahal re "But the hard part I suppose is making sure the voter votes the way you paid them to" the easy answer is to take the voter out of the equation. If you bought their vote, then you know how they are supposed to vote. It would be unfair for them to change it, maybe even unethical. You'd actually be making helping them be fair and ethical.

cubanbob said...

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process."

At least the bastards have a sense of gratitude toward their donors unlike the shameless ingratitude the bastards have towards the taxpayers who are coerced in to funding them through government campaign funding.

As for free speech how can forced funding of candidates through government funding not be considered an abridgment of my 1st amendment rights? The whole public campaign finance scheme needs to go.

Birches said...

Maybee +100

cubanbob said...

garage mahal said...
Maybe we should allow McCutcheon to just buy voters outright. For example, at $50 per vote you could buy a state like Wisconsin for approximately 50 million bucks. Not a bad investment for control over a 60 billion dollar budget. Instead of elections we just have auctions."

That's typical Democrat vote buying as it currently is.
You have a problem with that?

chillblaine said...

It is amazing to me that the Trotsky-ites and other liberati are horrified that someone might voluntarily give money to a politician they oppose. Where is the indignation for people like me who are coerced into donating money via my tax dollars. The democrat money-laundering machine will take my tax contribution, and if necessary, borrow against our children's earnings, and funnel cash to the teacher's unions.

Walker/Cruz 2016

B said...

Where is the government given the authority to promote equality by suppressing speech?

Preventing bribery is a minimal and reasonable restriction on speech. Just like specific threats or yelling "fire" in a theater.

Mike said...

From Henry at 8:49

Campaign finance reform ... is the mesmerism of civic health


Excatly. A perfect analogy for the kinds of people who distract you with "magic" thinking while they pick your pocket.

Todd said...

B said...
Where is the government given the authority to promote equality by suppressing speech?

Preventing bribery is a minimal and reasonable restriction on speech. Just like specific threats or yelling "fire" in a theater.
4/3/14, 11:59 AM


In what realm is "bribery" a free speech component? Soliciting or accepting a bribe is a crime, has nothing to do with free speech.

Mike said...

Oh AJ, Liberals don't see the MSM as the giant multi-billion dollar in-kind permanent-campaign contribution that it is.

Just like they don't see the "ban bossy" multi-million dollar campaign as the obvious battlespace prep it is for Hilary! Liberals spending vast sums are just "common sense measures" and "community outreach" while what YOU want is Lobbyists running the government. See?

cubanbob said...

Preventing bribery is a minimal and reasonable restriction on speech. Just like specific threats or yelling "fire" in a theater.

4/3/14, 11:59 AM

The cure for that is vigorous prosecution of bribe takers and and enhancing the penalties for taking bribes. maybe a mandatory 20 years coupled with a loss of pensions and a permanent loss of entitlements along with a forced disgorgement of all wealth would be more than enough to prevent the bribable from taking a bribe.

As for minimal and reasonable restrictions on free speech lets start with banning non-profits from donating to campaigns and from lobbying for government funding. It's not like they are taxpayers who are currently forced in to public campaign funding.

Chuck said...

Garage; you can send me as much money as you want, and just tell me who you'd like me to vote for.

And trust me, I'll do it. I promise. After I'm done voting, I'll tell you exactly who I voted for and it will be just the same people you wanted me to vote for.

Seriously. You can trust me on this. Just send me the money. I think we can work a deal on this. And in the end, you'll be happy, knowing that you could trust me, to cast a vote just as you directed.

Ann Althouse said...

""a movement to amendment the US Constitution to overturn Citizen's United"

Do you realize how hard it is to amend the Constitution?

There's no way this will happen, and arguing for amending the First Amendment is a big political loser. Remember the anti-flag-burning effort some years back? You won't succeed and you won't look good trying to succeed.

Chuck said...

B said...
"Preventing bribery is a minimal and reasonable restriction on speech. Just like specific threats or yelling 'fire' in a theater."

There was no need to stop at a prohibition on yelling "fire" in a crowded theater. McCain-Feingold prohibited yelling "Vote for Joe!" in a crowded theater. That was the really funny part.

Ann Althouse said...

Sorry about the bad first link that was up so long, and thanks to the commenter who first pointed it out. Wish I'd seen it earlier. (Comment deleted now, because it's a distraction, but I much appreciate prompts like that.)

B said...

"The cure for that is vigorous prosecution of bribe takers and and enhancing the penalties for taking bribes."

Jail the prostitutes, but not the Johns.

garage mahal said...

There's no way this will happen, and arguing for amending the First Amendment is a big political loser.

Probably won't happen but if Democrats were smart they would be all over this. From Tuesday:

All 13 referenda passed with solid majorities: Waukesha (69%), Wauwatosa (64%), Whitefish Bay (65%), Shorewood (76%), Waunakee (79%), Edgerton (87%), Lake Mills (73%), Elkhorn (69%), Delavan (76%), Belleville (85%), De Forest (70%), Windsor (71%) and Waterloo (61%). This brings the total number of communities in Wisconsin that have called for an amendment to 41. In the country as a whole, 16 state legislatures have voted for an amendment, as well as over 500 towns, cities and other organizations. Link.

Most people don't think money equals free speech, it's absurd on its face, and it seems to be one of the few unifying issues for conservatives and liberals. Even Waukesha County!

Paco Wové said...

"Do you realize how hard it is to amend the Constitution?"

I don't think efforts like this are really intended to succeed at their stated aim. I suspect they're more about keeping the faithful outraged! 24/7.

"Don't think! Just be angry! Oh, and give us some money — you realize how hard it is to amend the Constitution, right?"

Chuck said...

Professor Althouse we should not ignore the the idiocy of the very language used in the assertion that there should be "a movement to amendment [sic] the US Constitution to overturn Citizen's United."

We don't amend the Constitution to "overturn" cases. And there is no court to "overturn" the Supreme Court. No; a constitutional amendment to address the outcome in Citizens United would be an amendment to say explicitly that the First Amendment doesn't apply to campaign finance. The further you go in actually putting words to that notion, the more outrageous it gets.

There are some proposed amendments floating around out there. They are all laughably bad. Here's the League of Women Voters (I think they hate Citizens United too, which is ironic for a group that wants more voter involvement and education) summary of a bunch of proposed amendments:

http://www.lwv.org/content/review-constitutional-amendments-proposed-response-citizens-united

Birches said...

Ok, fine constitutional amendment to overturn Citizen's United.

How about we do totally taxpayer funded campaigns like Arizona?

Oh wait, that's bad too. The wrong people keep winning. Eventually, we'll get this right.

Birches said...

/sarc

mccullough said...

Garage,

If money buys elections then The Trek lady will be able to buy her way into the Wisconsin governorship because she can spend all her money.

There is plenty of data from state elections and federal elections that those with the most money don't win. So quit griping about President Steve Forbes.

garage mahal said...

If money buys elections then The Trek lady will be able to buy her way into the Wisconsin governorship because she can spend all her money.

Burke can never compete with the likes of Sheldon Adelson and the Kochs. Not even close.

Anonymous said...

Garage,

If the Democrats are pushing for a constitutional amendment to overturn Citizens United, and the right is pushing for a constitutional convention, I wonder why the two don't get together and let the fireworks begin?

I believe we only need 34 states to start up a convention. If the left and the right both want it, shouldn't be too tough.

Delayna said...

Unknown said: "The fact that there is so much concern about buying elections points directly at the real problem: Government has too much power. Otherwise, it wouldn't matter all that much. Rules and laws to make thing run and run smoothly should not be structured to favor individuals or individual businesses; such rule should be identified and restructured or dismantled."

This is too perfect for me to add anything, I just thought it needed repeating.

Delayna said...

Matthew Sablan said:

"Simply being able to give a candidate a chunk of change because I agree with their policies should not be any more illegal than writing a documentary about the horrors of the X or Y administration."

Documentaries like The Path to 9/11?

mccullough said...

Garage

Tell her to call George Soros and the other progressive billionaires.

No matter oh much money Scott Walker raises and spends you are not going to agree with him or vote for him. I respect that.

Why don't you respect your fellow citizens' ability to think for themselves? There is no shortage of money sloshing around the party and candidate coffers from Republicans and Democrats and no shortage of money on the bank accounts of billionaires like Soros and the Brothers K spent to spread their gospel.

People are intelligent enough to make up their own minds based on the information available, if they even decide to vote or otherwise participate in the political process in the first place.



sunsong said...

Bernie Sanders offers an amendment that says, in part, "corporations are not people and do not have 1st amendment rights". This is not a new video :-) and it is only an example. Because something is hard is not a reason not to try, imo. In fact that's what ideals are all about. We reach for ideals knowing that we cannot attain them but that we are better for the effort.

sanders

Bob Ellison said...

If money can buy elections, then why isn't Wendy Davis already anointed? I see her web ads everywhere I go, even more than the Subaru ads. I recently researched and bought a Subaru, but I don't recall ever having researched or bought a Wendy.

Paco Wové said...

"corporations are not people and do not have 1st amendment rights"

Individuals have 1st amendment rights, but if they band together, say, to fund something more expensive than any one of them could do on their own, they ipso facto *lose* their first amendment rights?

Talk about playing into the hands of the plutocrats.

Delayna said...

"corporations are not people and do not have 1st amendment rights"

You mean, the UAW doesn't have the right to run an ad? Whether political or not?

Does the NY Times have the right to print an editorial page?

Matthew Sablan said...

What if instead of supporting an individual candidate, the money goes to support a cause?

For example, would the anti-gun ad that ran during the Superbowl be OK, even though it is clear who, politically, is supposed to benefit? What about the ads against abortion?

Paco Wové said...

"Does the NY Times have the right to print an editorial page?"

Does it even have the right to print news articles, if those articles can be shown to be ideologically biased?

Anonymous said...

@GM: " Doesn't seem fair that politicians and PACs can receive hundreds of millions of dollars but I can't send a voter one dollar to vote? How about if I don't tell them which candidate to vote for? "

That's what Democrats already do in places like Philadelphia: buying votes. It's called "walking around money." How else do you think the Dems build in a 5% vote advantage over the Republicans in the big cities? Why, if it weren't for the illegal walking around $$, the Dems would have win elections fair and square. Can't have that.

Anonymous said...

""corporations are not people and do not have 1st amendment rights". This is not a new video :-) and it is only an example. Because something is hard is not a reason not to try, imo. "

You ought to defend your position.

If corporations don't have first amendment rights, then you're saying Fox News, CNN, MSNBC, The New York Times, etc, all have no first amendment rights.

Why do you believe that?

FreddyMac said...

Rare option forcing congress to meet to change constitution gains momentum. Michigan may have been the final state needed to hold an Article 5 convention.

cubanbob said...

Bernie Sanders offers an amendment that says, in part, "corporations are not people and do not have 1st amendment rights". This is not a new video :-) and it is only an example. Because something is hard is not a reason not to try, imo. In fact that's what ideals are all about. We reach for ideals knowing that we cannot attain them but that we are better for the effort."

Sunsong Sanders is a socialist-you know, idiot. Corporations would love this. If a corporation isn't a person for one thing it logically it can't be a person for other things such as being liable for damages. Or taxes.


FreddyMac said...

Corporations would hate to have the veil of protection pierced too. If they are persons they get to have their CEOs, stock holders and owners sued in addition to the corporation. Be careful of what you wish for, you may just get it.

FreddyMac said...

If the SCOTUS finds in favor of Hobby Lobby / Conestoga, the next time somebody slips and falls in a Hobby Lobby there will be lawyers out there that will be lookin to make a name for themselves by proving that if corporations want to be persons, they will not only get the protections of a corporation, they will get the responsibilities of being a person. They are already discussing it all over the blogosphere. Why do you think precious few secular corporations have filed amicus briefs in favor of Hobby Lobby/ Conestpga. The majority of the 84 briefs that were filed were not from secular corporations. Heads up .

Drago said...

Hey remember all the complaints garage had about Soros dumping hundreds of millions into campaigns all over the country?

Yeah, me neither.

Strange that.

Joe said...

they will not only get the protections of a corporation, they will get the responsibilities of being a person.

They already fucking do, you dick. Using your fucking non-logic, if corporations aren't a person, then nobody can sue them.

Donald Douglas said...

Great post, Professor Althouse. A pleasure to read.

SteveR said...

Soros good, Koch bad, Union-good, Corporation bad

cubanbob said...

FreddyMac said...
Corporations would hate to have the veil of protection pierced too. If they are persons they get to have their CEOs, stock holders and owners sued in addition to the corporation. Be careful of what you wish for, you may just get it.

4/3/14, 6:03 PM
FreddyMac said...
If the SCOTUS finds in favor of Hobby Lobby / Conestoga, the next time somebody slips and falls in a Hobby Lobby there will be lawyers out there that will be lookin to make a name for themselves by proving that if corporations want to be persons, they will not only get the protections of a corporation, they will get the responsibilities of being a person. They are already discussing it all over the blogosphere. Why do you think precious few secular corporations have filed amicus briefs in favor of Hobby Lobby/ Conestpga. The majority of the 84 briefs that were filed were not from secular corporations. Heads up .

4/3/14, 6:17 PM

Freddie they already are subject to piercing the corporate veil. As for the lawyers the same will apply to law firms and the partners. Think Patton Boggs and the butt hurt they are about to get. Those lawyers that you referred to better be absolutely sure there isn't the slightest whiff of fraud or perjury in their litigations. And think about all of those do-gooder NGOs they too would find themselves having their corporate veil pierced so with your example their directors and officers and members and contributors could also be facing suits and lets not forget foundations and unions.

Matthew Sablan said...

"Why do you think precious few secular corporations have filed amicus briefs in favor of Hobby Lobby/ Conestpga."

-- If I were a private company, no matter if I thought it were good or bad, I would rarely, if ever, file amicus briefs for fear of what it would do to my brand name.

Given that a man recently lost a prestigious job for agreeing with the President's circa 2007 opinion on a social issue, it seems prudent to just not say anything controversial because certain elements will see you as an Enemy and object for a good five or ten minutes of hate -- and certainly not as a person worthy of respect for the intrinsic nature of our shared humanity.

Robert Cook said...

Wow! So many people cheering for their own disenfranchisement! An astonishing demonstration of the extent to which the owners of this country, through their propaganda, have successfully colonized the minds of the ruled.

Robert Cook said...

"Using your fucking non-logic, if corporations aren't a person, then nobody can sue them."

Says who? Are institutions not subject to lawsuits? (Yes, they are.)

Robert Cook said...

"If a corporation isn't a person for one thing it logically it can't be a person for other things such as being liable for damages. Or taxes."

There's no "logic" at all in your erroneous assertion.

Robert Cook said...

"People are intelligent enough to make up their own minds based on the information available...."

Aye, but there's the rub. The "information available" is very much determined by who is spending money to promulgate it, or to prevent its being promulgated, or to promulgate noise as information, thus confusing the two such that it all becomes impossible to know what is information and what is noise...thus rendering it all noise.

That aside, the money donated to candidates by big institutions comes with an implicit understanding on the part of the givers and receivers of implicit quid pro quo obligations. A candidate who does not sufficiently repay those obligations will not long continue to receive big donations from those whose expectations are not fulfilled.

jaed said...

Robert, you can say "I have no idea what legal personhood means" without taking three posts to say it.

Legal personhood means a corporation can be treated as a discrete entity by the legal system. It can buy and sell, enter into contracts, sue and be sued, hire employees, own property. Legal and natural persons (meaning, respectively, corporations and people) can do these things because they are persons under the law.

Says who? Are institutions not subject to lawsuits? (Yes, they are.)

What is an "institution"? Is that supposed to be a legal term?

If you mean such things as city governments, unions, universities, charitable organizations, and so on... those are all [drumroll] corporations. That's why they're subject to lawsuits.

Anonymous said...

Rick Hassen is a Democrat Party hack who pretends to be a law professor. What can you say about someone who is utterly opposed to preventing vote fraud (because the "right to vote" is sacred), but is perfectly happy seeing the Federal Government trample all over people's First Amendment rights to support candidates?