Wednesday, October 19, 2011

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.


Anonymous said...

So you support OWS and their right to exercise their free speech?

Dad29 said...

In the ideal, Madison's argument is the most persuasive.

If Government(s) have limited and specified powers, moneyed interests have little interest in governance.

John Foust said...

Dad29, con't. ... because absent the oversight or favors granted by a more malleable government, they can achieve their goals by other means.

Rick Esenberg said...


No on the former and yes on the latter.


You're right. If you think that is the role of government to substantially redistribute wealth and income, then Madison won't appeal to you.

Anonymous said...

I will believe that a corporation is a "person" when Rick Perry executes one!

Tom said...

Anon 8:56 - there are situations where government can force the dissolution of a corporation.

Besides, if a corporation isn't a person, then government could seize corporate property willy nilly without due process, corporations could neither sue nor be sued, etc.

Anonymous said...

Here we go, yet again, with Citizens United. A primer...

Part 1

Legal scholars today are grappling with these two issues in light of the Citizens United decision (2010). They are debating whether the Constitution can be interpreted to equate corporations as people who have political rights. Santa Clara County v. Southern Pacific Railroad (1886) served as a founda-tional piece for Citizens United. In Santa Clara, the Supreme Court determined that public corporations, like private citizens, have due process and equal protection of the laws under the 14th Amendment.

Now preceding every Supreme Court case entry is a headnote, or summary. The court reporter, J.C. Bancroft Davis, a former railroad executive, stated, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment, which forbids the State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

The question of whether corporations were persons within the context of the 14th Amendment, however, was NOT explicitly decided. The Supreme Court NEVER ruled whether corporations were “citizens” and afforded certain inalienable rights. Since 1886, the Supreme Court has reiterated this assumption that corporations are entitled to constitutional protections.

As a result, Congress distinctly defined speech as being political and economic. In general, corporations may invoke rights that individuals possess, such as the right to petition, to speech, to enter into contracts and to hold property, to sue and to be sued, only relating to ECONOMIC/COMMERCIAL matters. When it came to corporations in POLITICAL matters like hosting rallies and campaign contributions, Congress and state governments had enacted several laws banning company involvement in the political arena, citing past corruptive practices.

Supreme Court decisions regarding corporate personhood had focused on businesses being held liable for their production of goods and being able to "voice" their concerns in a court of law when they felt government attempted to strictly regulate their practices. When it came to influencing government policies through political speech, the Supreme Court, Congress, and state legislatures made it a general policy for decades those rights squarely belonged to living things, not artificially created entities. Decisions in the late 1970's and 1980's, however, slowly eroded that distinction and paved the way for Citizens United to become the law of the land.

Terrence Berres said...

The syllabus to the Court's opinion indicates that is was Chief Justice Morrison Waite who said the words Anonymous quotes, 118 U.S. 394, 396.