The ideology of restricting political speech

Mike McCabe of the Wisconsin Democracy Campaign links to an interesting article by Michael Lind. The article is interesting for things other than what McCabe cites it for but McCabe's piece is also instructive in that it highlights the "bait and switch" involved in the advocacy of restrictions of campaign speech.

First, let's clear the underbrush. McCabe began by repeating the mistaken mantra that the Supreme Court decided that "money is speech." It did not. What it recognizes is that the right to speak becomes meaningless if one (or those with whom one is associated with) don't have the right to combine resources or use what resources they do have in order to be heard. To say that I have the right to go down to the corner of Wisconsin and Water and holler, but I can't do anything to publish my views to others would be a rather empty guarantee. McCabe writes that "when money is speech, speech ceases to be free." I can't even guess at what this means. Speech - at least if you want it to be heard - is never free. But more on this in a moment.

Much of what we hear from WCD and like minded groups is that are legislators are "bought and paid for" but there is little evidence of that. People who wish to promote the candidacy of sympathetic politicians are far more likely to seek out those who are already supportive of the contributors agenda rather than to try and corrupt those who are not. This is particularly so in the case of independent expenditures (which is what really rankles reformers these) days where, as Larry Lessig (himself a proponent of restrictions) notes there can be no "pro" connecting the "quid" and the "quo."

This is one of the reasons the United States Supreme Court has protected independent speakers in cases like Wisconsin Right to Life and Citizens United. But sophisticated proponents of restriction trot out another argument. They say that the problem is not that our politicians are corrupted, but that the process by which they are selected is distorted. People or groups with the money and motivation to make outsized contributions can exert more influence.

Thus Rick Hasen of Loyola Law School famously (at least in the campaign finance world; trust me) calls for regulation that would bring us closely to what he calls "barometric equality," i.e., the idea that financial support for a candidate more closely mirror that candidate's degree of support within the electorate.

There are numerous problems with that concept and implementing it would (or at least should) scare the bejesus out of civil libertarians, but McCabe's piece is a fairly stark example of the genre. He argues that Democrats are not effectively the party of the working people because they have thrown in their lot with "big money" or at least have failed to eradicate the use of money in politics. This presumably impairs the sort of unfettered populism and "People's Democracy" that would follow in a system that achieved barometric equality.

And there's the bait and switch. We begin by discussing corruption in a more traditional sense and then segue into talking about barriers to economic populism.

Two points. Putting aside the fact that "barometric equality" is a vexed and, frankly, illusory concept, it is not clear that a system that achieved it would be more legitimate or more consistent with our founding ideas. There all sorts of "unfair" or "illegitimate" advantages in politics - celebrity, incumbency and demagoguery.

Madison, in particular, was concerned about the threats of faction to sound republican government. In Federalist No. 10, he wrote that "[t]he diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government." (Not all may agree but the track record of societies that have failed to do so is not good.) He gave a particularily apt example: "The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.'

Of course, Madison did not express a view on modern campaign finance laws but his solution to the problem of faction - which he thought could not be avoided - was limited and divided government in which no faction would be likely to become ascendant. There are many modern lessons in that but the old notion that the remedy for bad speech is more speech is among them/

Second point. Achieving this radically egalitarian democracy would seem to require nothing short of totalitarianism. We do regulate campaign contributions but that is not enough so we have to regulate independent expenditures - something the Supreme Court has severely limited. But even if it hadn't, independent expenditures would inevitably be replaced - particularly in the digital age - by partisan media outlets.

In attempting to restrict the flow of information in service of a largely discredited ideology, Mr. McCabe and WCD are, essentially, Luddites.

But the Lind article is interesting for other reasons. More to come.