TheAgitator.com
The Shays Hits the Fan
Friday, December 12th, 2003Glen Whitman on the campaign finance decision:
Suppose that I think George W. Bushâs presidency has been a miserable failure. Actually, you donât have to suppose, because I actually think that. And suppose I find a couple of dozen other people who agree with me. All of us want to convince other people of the same thing (that George W. Bushâs presidency has been a miserable failure), but none of us alone has enough money to buy a radio or TV ad. So we pool our funds and come up with enough money to buy an ad blasting the current administration for the miserable failure that it is, in the hope that other citizens will come to support our position.The activity Iâve just described would seem to be the essence of free speech, no? And yet the Supreme Court has just upheld a ban on precisely that kind of activity.
Think about what has just happened. The Supreme Court has just ruled that political speech, the most important, and in theory most protected, kind of speech, can be banned in the days leading up to an election, the very time it’s most needed, most valuable, and most beneficial.
Incumbents in Congress have just insured that concerned citizens can’t reach a mass audience with criticism of them in the months leading up to the day when the public determines whether or not they deserve to be rehired for another term. They’ve just given themselves job security.
And lest we get too down on the Supreme Court that upheld this dreck, or the Congress that passed it, keep in mind that our president signed it into law, despite expressing his belief that it was unconstiutional, thus violating his oath of office.
Julian has a more lighthearted take. I’d caution him, though. This, after all, is post-reductio America. Today’s parody is tomorrow’s headline.
I don’t think a single person in this country, accept politicians, would agree with the recent ruling, IF THEY EVEN KNEW WHAT IT MEANT OR THAT IT HAPPENED. I would argue that the majority of Americans don’t even know or CARE that their liberties are being stolen from them. They don’t even know what liberties the constitution grant them. Isn’t this called gradual assimilation or something like that? Here’s an example:
Dip a knife in blood, freeze it, and give it to a dog. The dog will start licking the knife, numbing his own tongue. The blade cuts the dog’s tongue, so he begins bleeding and keeps licking not knowing that he’s licking his own blood. So he bleeds to death. That’s what this is.
This is scary stuff.
I’m emailing my state reps repeatedly. That’s all I can do. I’m sure nothing will come of it. Isn’t that sad?
This is absurd.
Hmmm. Well, Radley, you wouldn’t be able to Incorporate to do it, but you would be able to found a non-incorporated non-profit (Which the folk over at Volokh Conspiracy say does exist).
I do believe that Sandra Day is the devil incarnate. After the Michigan case and this — I just can’t wait until she finally retires.
In a related story, they think I am joking about an independent island.
The constitution doesnt grant liberties, it protects them. But I agree most people dont understand or care about the protection they have been given.
Mr. Witman’s take on the situation is not entirely accurate. Or at the very least misstates the alternative.
A more truthful analogy would go: Suppose a bunch of us hate George Bush. Suppose we want to pool our money to take out an ad encouraging others not to vote for him. Now suppose Bill Gates and Donald Trump love George Bush. Suppose we all pull together as much money as we can muster, which is quite a bit because a lot of people hate George Bush, and we take out some ads conveying our position. Gates and Trump disagree. The two of them together, however, can afford to take out an equal number of ads in all the same time slots. To the people watching at home, the ones we all are trying to convince, it appears as though those who hate George Bush and those who are for George Bush are about equal. The peoples’ voices don’t carry equal weight.
Contrary to what some around the blogosphere would have you believe, the new campaign finance law does not outlaw political speech around election time. It limits the amount that interest groups can collect from individuals to run ads encouraging the election or defeat of a candidate. What we will get under the new system, ideally, is more ads encouraging the election of candidates that a lot of people support (because they will be able to get a lot of people to donate the maximum amount), and less ads encouraging the election of candidates that fewer (although maybe rich) people like. Ads will reflect support.
As the Supreme Court ruled, money is not speech. Nor is money support. The more money someone gives to an issue does not mean that he/she supports the issue more. It could just mean he/she has more to give. The ’speech’ aspect to donating money is the fact that you donated at all. That is what says to the world, I believe in this issue enough that I am willing to support it with my money. At least that’s the speech on the individual level, and that is all that is protected by the Constitution — the individual.
Devin, thank you for that correction. You’re absolutely right.
BW, if I offer you $20 to buy your car from you, would you assume that I want your car as much as the guy who’s willing to give you $8000, or simply that I don’t have $8000? How can you be so sure?
By limiting the ammount of money that people can contribute towards political speech, you are limiting their ability to express the strength of the their preferences. There *is* a difference between giving $20 and giving $20,000, and that difference is not simply a matter of means.
Excuse me, that first sentence should read “…$8000, but that I simply don’t have $8000?”
BW,
That is a good post.
My question for you is, if I have a lot of money, and therefore I am paying far more taxes than the average person; I have more property that needs protecting, and I am paying a larger share of the governments budget than most other individuals, shouldnât I have more of a say in what the government does with that money?
I mean ⦠donât businesses usually cater more to the customers who spend the most money? Why should the government be any different? In other words, I understand that we all get an equal say when it comes time to vote â 1 Individual â 1 Vote. But if a person is contributing more energy to the endeavor, then why should that person have only the same influence as everyone else? Shouldnât more energy (i.e. more money) mean more influence?
Look, maybe you are poor, but you have 1000 friends, and you can convince half of them to vote the same way as you.
By contrast, what if I am rich, but I only have 10 friends, half of which I can convince to vote my way.
Should the government stop you from convincing more than 5 friends to vote your way just to keep things âfairâ between us?
“At least that’s the speech on the individual level, and that is all that is protected by the Constitution — the individual.”
How on earth do you get this conclusion from the words “Congress shall pass not law abridging the freedom of speech.”
1) Brian Hawkins: I am not selling my car to “who wants it the most,” its my car. The government, like it or not, is suppose to be run for everybody. That’s why we have a republic.
2) Serpent: I have a big problem with the first part of your post. If you are saying the rich pay more taxes, and should have a greater say in government, why stop at 1 person = 1 vote. Why not give out votes based on wealth? Or at the very least taxes paid.
I am as big a capitalist as you will meet. If you work hard, and make enough money, you should be able to afford better things, whether it be food, clothes, even healthcare and housing. I don’t think, however, that you should get a bigger say in government. Govt is suppose to be the one place where we are all equal. I know I’m being idealistic, but I think we should be working to get as close to that goal as we can. Even if it is impossible.
As far as your argument about friends and energy, all I can say is I don’t really think its the same thing. And I don’t really think you do either.
If I have to address it, I would point out that if I, as an individual, know that many people and try to convince them, I am exercising my individual free speech rights. Each of my friends knows that I am speaking for myself and my position doesn’t look like it has more support than it really does. Same if a rich guy wants to take out ads on tv explaining his individual views. He can do that all he wants. His only limitation is that he can only collect a certain amount of money from each person, if he is going to speak on behalf of others.
3) Blank: The Court has held that the Constitution/Bill of Rights does not protect corporations. This includes interest groups. The language you are citing never applies in the first place.
BW: In response to your answer #3 to Blank:
What is an “interest group?” It is a group of individuals that get together to advance a particular point of view (Greenpeace, NRA, etc.) While my few bucks that I send to a group isn’t that much, when pooled with those of a similar bent, it is actually enough to buy an ad in the NY Times or run a 30-sec spot on Survivor.
My speech (via my agent, in this case, an interest group) SHOULD be protected.
BW, you either missed the point of the car analogy or chose not to address it.
The point was that the price someone is willing to pay for something reflects their value for the thing. Maybe I think your car is only worth $20, but the other guy thinks it’s worth $8000. He has a much higher opinion of the car. It doesn’t necessarily mean that I only have $20 to spend and he has money to burn.
Similarly, I might only be willing to give $50 to the campaign of Representative Smith, regardless of how much money I have, because I’m pretty lukewarm about Rep. Smith. On the other hand, I might want to give $2 million to help elect Ms. Jones as president, because I think she’d be a hell of a good president. If I’m only allowed to give $1000 by law, then my *individual* capacity to express the strength of my preference for Ms. Jones has been limited.
“The Court has held that the Constitution/Bill of Rights does not protect corporations. This includes interest groups. The language you are citing never applies in the first place.”
That is incorrect. The court has held that the 1st Amendment does not protect commercial speech. It has never held that the 1st Amendment does not protect the political speech of corporations. If you were correct, it would mean that political parties have no free speech rights. Are you really making such a silly claim?
Brian Hawkins: Sorry if I ignored your point.
First, an analogy to the private sector is flawed for a number of reasons. Not the least of which was my original response to you. It really doesn’t matter how badly you want something. It only matters what someone is willing to sell it for.
Second, it is flawed because the amount someone is willing to pay or expects to get paid varies for different individuals. There are supply and demand issues that raise and lower the prices of goods both in the aggregate and on the individual level. I might be willing to pay more for a car b/c I am going to use it to make money while you are going to use it as a prop in a school play.
These variables are less pronounced in government fundraising. Everybody is try for the same thing, to affect public policy towards their opinions. To the extend that they are trying to affect public policy for a different purpose (i.e. to gain an advantage for profit), well that is the kinda thing we should be trying to stop or at least curtail.
Because there is less variance in the reasons people would spend more money supporting a candidate we can narrow it down to two real reasons. 1) That’s all they can afford; or 2) They support the position more.
While I suppose you disagree, I find it unlikely that too many people are donating money to issues they feel “lukewarm” about. Most people don’t participate in the process to that extent. More likely, in my opinion, if people are donating less, it is because that is what their budget can afford. I can’t know that for sure, no, but I don’t think it is a safe enough bet to make for the ends of limiting influence by those with money.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Congress is forbidden to pass a law which abridges the freedom of speech, and yet the Supreme Court just upheld a law which prohibits certain political speech before an election. In certain circumstances, I am now prohibited from making my political views heard before an election.
Somebody please explain to me, without the utopian visions, exactly why this isn’t a CLEAR violation of the 1st Ammendment?
There is a lot of blame to be passed around for this travesty, but I hold the Supreme Court more responsible than any other accomplice, since their job is to protect the integrity of the Constitution by shooting-down laws like this, and in that they failed miserably.
If the Supreme Court couldn’t see this law as unconstitutional, then how can we expect anyone else to have seen it clearly?
Justice Scalia’s dissent was the most telling. The Supreme Court cannot be trusted, obviously, anymore.
Ms. Dani: The Supreme Court cannot be trusted, obviously, anymore.
Theist/Deist (i.e. Nonconformity or Forces of Light) = 5
Atheist/Secularist (i.e. Conformists or Legion of Darkness) = 4
“Somebody please explain to me, without the utopian visions, exactly why this isn’t a CLEAR violation of the 1st Ammendment?”
Well, if you listen to BW’s gibberish, he seems to think the 1st Amendment only protects individuals. Of course, that would mean that pretty much every newspaper and television station in the country is unprotected by the 1st Amendment.
Ms. Dani -
When I read Justice Scalia’s dissent, I actually felt a little bit of hope for the Supreme Court, since they obviously aren’t ALL wannabe law-makers.
Just when you thought the 9th Circuit was bad…
I agree Roger.
Serpent, You’re speaking in riddles. Help me understand. What I think you’re saying is that the liberals on the bench are theists/deists and the conservatives on the bench are atheists/secularists. That can’t be what you are saying. I would think it’s the opposite. I must be reading it wrong.
Ms. Dani,
Scalia, Thomas, Rehnquist, et. al. are the Non-conformists.
Ginsberg, Stevens, etc. are the Conformists.
The latter realizes that a majority will never support their insane policies, so they will simply circumvent (force/coerce) the majority by decree.
The 5 and 4 were confusing me. I gotcha.
Radley, you have it exactly backwards. What the Surpreme Court ruled is that Money is NOT speach, and thus not entitled to the same strong 1st amendment protection.
You and your hundreds of buddies are allowed to SAY whatever you like, and to convince people of that in the most efficient way possible (face to face or in small groups).
You are even allowed to raise money and put Ads on TV without limit SO LONG AS YOU DON’T MENTION THE NAME OF A POLITICIAN during the last 90 days of the campaign.
If you DO use his name, then you have to follow the usual rules for DISCLOSURE and contribution limits.
Which means basically, than you can use LOTS of money from a single person or corporation to make up for the fact that you can’t find a lot of people that agree to give you money for your Ad.
Once again THER IS NO BAN ON SPEACH in McCain-Feingold. Anyone who says otherwise is lying. There IS a ban on non-disclosure (i.e. Anonomous speach). And there a limits on the amount of money that you can collect from a single entity to amplify that speach.
If you REALLY have the support of thousands, then you have no trouble. Just get $100 from thousands of people and you have a pile of money that you can use to say whatever they want. (but not anonomously). What you can’t do is use thousands of dollars from 10’s of people to speak at the same volume.
Money doesn’t vote, people do. And the rule is one person one vote. Not one dollar one vote.
So Glen Whitman’s example of lots of people getting together to speak is dead wrong. The only way you get hit by McCain-Feingold is when you Don’t have lots of people getting to speak collectively. Or those lots of people want to speak anonomously.
This is a good law and it sets the precedent for even better things to come.
Because the special interests are morally unclean, the law says, we can prevent them from expressing themselves on TV, radio, and in print.
The next step is to prevent others we don’t like from expressing themselves… The Jews, for example.
After a few years, we’ve paved the way for confiscation of “surplus grain”, if you know what I mean.
The Christians are wrong. John McCain is the one true God. Worship him.
This legislation is bad for one HUGE reason. It holds the citizens resonsible for the errors of the idiots who created it. If we had people of any kind of principle in office, no matter how much money was donated to them, they would never let those groups influence them.
“You are even allowed to raise money and put Ads on TV without limit SO LONG AS YOU DON’T MENTION THE NAME OF A POLITICIAN during the last 90 days of the campaign. If you DO use his name, then you have to follow the usual rules for DISCLOSURE and contribution limits. ”
“Once again THER IS NO BAN ON SPEACH in McCain-Feingold.”
But by your own admission, THERE IS A RESTRICTION ON FREE SPEECH, and that’s what the 1st Amendment by its very terms prohibits Congress from doing. The 1st Amendment doesn’t say that Congress may pass laws restricting speech so long as it doesn’t outright ban speech. It doesn’t say that Congress may restrict anonymous speech by requiring disclosure of those funding the speech. It says that Congress shall make no laws abridging speech. No amount of linguistic gymnastics on your part can change the fact that this law abridges free speech.
It took the majority 298 pages of twisted logic to overturn the nine words “Congress shall make no law abridging freedom of speech…” There definitely IS a ban on ads critical of incumbents in the last few months before the election. This is a travesty.
“THE SHAYS HITS THE FAN”
I like both the title, and the content of this post….
Free Speech is limited all the time: time, place and manner restrictions. How is this any different. Or do you think the first amendment protects your right to say anything, anyplace at any time?
“Free Speech is limited all the time: time, place and manner restrictions. How is this any different. Or do you think the first amendment protects your right to say anything, anyplace at any time?”
This isn’t comparable to prohibiting people from shouting “Fire” in a crowded movie theater.
Closing the First Amendment Loophole
(via The Agitator) Julian Sanchez takes us down the merry path of politicians dealing with that pesky problem of free speech….
reductio creep
Shouting fire in a movie theater is not a time, place or manner restriction. Its incitement.
A time, place and manner restriction would be limiting a pulbic rally to a certain time of day in the neighborhood park. How is this different?
Also, how is that a reductio creep? Just because some people have misused the tatic of analogy, doesn’t mean that you can dismiss any comparison between that which you agree with and that which you find absurd just by citing reductio creep? Instead, Chris, why not point out the actual difference between the two.
I think Progressive Guy’s post was the one with the “reductio creep.”
If money is speech then what is taxation?
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