Supreme Court: Maybe Free Speech Really Isn't Free (Or: "You Get What You Pay For")
June 8, 2010 10:29 AM Subscribe
Supreme Court Blocks Arizona Campaign Finance System. After it's recent highly controversial ruling in Citizens United Vs. Federal Election Commission, which struck down longstanding Federal limits on corporate political spending (discussed previously here and here on the blue), the court now seems poised to strike the last nail in the coffin of the possibility of public campaign finance reform by considering arguments over the constitutionality of public financing of political campaigns.
More coverage of the developing story here and here.
More coverage of the developing story here and here.
Ok, wait. So money is speech, unless its money being given from the government to candidates, then it isn't speech. Do I have that right?
Giving a politician a dirty wad of cash because (wink, wink, nudge, nudge) you support their legislative agenda is sacrosanct and is free speech in the most pure and important sense of the concept.
Trying to counterbalance out the evil fuckers buying our representatives wholesale by giving matching funds to politicians who didn't sell out quite so much is evil and not free speech in the slightest.
Where's the "State's Rights" wankers when you need them? Aren't the "rights" of Arizona (I feel icky just typing that) being violated by preventing it from "speaking" to politicians with their own dirty wads of cash?
posted by sotonohito at 10:39 AM on June 8, 2010 [7 favorites]
Giving a politician a dirty wad of cash because (wink, wink, nudge, nudge) you support their legislative agenda is sacrosanct and is free speech in the most pure and important sense of the concept.
Trying to counterbalance out the evil fuckers buying our representatives wholesale by giving matching funds to politicians who didn't sell out quite so much is evil and not free speech in the slightest.
Where's the "State's Rights" wankers when you need them? Aren't the "rights" of Arizona (I feel icky just typing that) being violated by preventing it from "speaking" to politicians with their own dirty wads of cash?
posted by sotonohito at 10:39 AM on June 8, 2010 [7 favorites]
If racists and homophobes hadn't polluted the concept of states' rights and made it a joke. This is why we can't have nice things.
posted by amethysts at 10:46 AM on June 8, 2010 [1 favorite]
posted by amethysts at 10:46 AM on June 8, 2010 [1 favorite]
So Citizens United allows large corporations to buy politicians, and this upcoming ruling will remove from politicians any alternative to being bought.
I'll hand it to the Roberts Court: They're thorough. They made sure to ask "you want fries with that? Free supersize while we're in charge."
posted by fatbird at 10:46 AM on June 8, 2010 [6 favorites]
I'll hand it to the Roberts Court: They're thorough. They made sure to ask "you want fries with that? Free supersize while we're in charge."
posted by fatbird at 10:46 AM on June 8, 2010 [6 favorites]
I hate that none of these stories covered the legal merits of the case, but I suppose that's not your fault. Legal reporting in the news tends to be league-tables stuff, like political campaigns. I do think this helps cultivate a glib nihilism about legal merits, though, which is ultimately destructive (oh yeah, the supreme court is just an unelected legislature, the constitution doesn't really decide any cases, etc. etc.).
Anyway, since none of the links give any hints as to the legal theories being pursued on either side, it's premature to write them off as intellectually bankrupt.
posted by grobstein at 10:47 AM on June 8, 2010 [3 favorites]
Anyway, since none of the links give any hints as to the legal theories being pursued on either side, it's premature to write them off as intellectually bankrupt.
posted by grobstein at 10:47 AM on June 8, 2010 [3 favorites]
And yeah, the Court has not even agreed to take this case, let alone decided it one way or another.
posted by grobstein at 10:48 AM on June 8, 2010 [3 favorites]
posted by grobstein at 10:48 AM on June 8, 2010 [3 favorites]
I get that, in some ways, spending is a form of free speech, if you squint very hard, and campaign spending funds political speech, which receives some of the highest protections. If PepsiCo buys a printing press and starts running out flyers about McCain (or sets up a website endorsing him), that's covered.
So I am continually frustrated by the difficulty of getting the money out of the political process. Until that happens, the real voters are the corporations; we just happen to elect people who are courted by lobbyists and who have their campaign IOUs called to account. I don't know how to untangle the mess.
posted by adipocere at 10:50 AM on June 8, 2010 [2 favorites]
So I am continually frustrated by the difficulty of getting the money out of the political process. Until that happens, the real voters are the corporations; we just happen to elect people who are courted by lobbyists and who have their campaign IOUs called to account. I don't know how to untangle the mess.
posted by adipocere at 10:50 AM on June 8, 2010 [2 favorites]
Well, I guess if you truly believe that political donations are pure free speech, then it makes sense that you'd oppose matching funds. It'd be kind of like saying that if you take out a billboard to advertise your business, the government has to give a matching advertising budget to your competitor.
This is ridiculous, of course, for more reasons than I probably need to list here, but it's at least internally consistent.
posted by echo target at 10:50 AM on June 8, 2010
This is ridiculous, of course, for more reasons than I probably need to list here, but it's at least internally consistent.
posted by echo target at 10:50 AM on June 8, 2010
Yep, it's logically consistent... which is more than you can usually say for shit with which I disagree.
I'm totally uncomfortable with the amount of money corporations can spend on political campaigns. I'm much more uncomfortable with controlling political speech, no matter how reprehensible.
Increasingly, the politician who spends the most money isn't the guaranteed winner. Let's hope that continues to be the trend, for all our sakes.
posted by MCMikeNamara at 10:56 AM on June 8, 2010
I'm totally uncomfortable with the amount of money corporations can spend on political campaigns. I'm much more uncomfortable with controlling political speech, no matter how reprehensible.
Increasingly, the politician who spends the most money isn't the guaranteed winner. Let's hope that continues to be the trend, for all our sakes.
posted by MCMikeNamara at 10:56 AM on June 8, 2010
I'll hand it to the Roberts Court: They're thorough. They made sure to ask "you want fries with that? Free supersize while we're in charge."
Not everyone on the Roberts court is a big fan of fries...
Matching funds and publicly-financed elections are a bargain for the customer and an excellent way to hold elected officials accountable.
posted by casualinference at 10:59 AM on June 8, 2010
Not everyone on the Roberts court is a big fan of fries...
Matching funds and publicly-financed elections are a bargain for the customer and an excellent way to hold elected officials accountable.
posted by casualinference at 10:59 AM on June 8, 2010
Quick book recommendation: Last Call: The Rise and Fall of Prohibition. Though it deals mainly with the passing and repeal of the 18th Amendment, it does touch of some of the long history of dicks and douches that have served on the Supreme Court. There's a slew of parallels between then and now (single issue voters, businesses weighing in on government, people voting against their own interests, hypocrisy in government, etc) that helps make it a fascinating read.
posted by robocop is bleeding at 10:59 AM on June 8, 2010 [1 favorite]
posted by robocop is bleeding at 10:59 AM on June 8, 2010 [1 favorite]
Shouldn't political donations be limited to those who can vote? Kill all the birds with no stones.
posted by blue_beetle at 11:05 AM on June 8, 2010 [6 favorites]
posted by blue_beetle at 11:05 AM on June 8, 2010 [6 favorites]
Rick Hasen of the Election Law Blog makes things a little clearer as to what's actually going on. Four Supreme Court justices have to agree to hear a case before the Court will take it on (granting certiorari) - in this case they have stayed the law pending a decision on cert. Hasen comments that granting of the stay makes it almost certain they will take the case on, but it won't be argued before the Court until the autumn.
posted by Electric Dragon at 11:13 AM on June 8, 2010
posted by Electric Dragon at 11:13 AM on June 8, 2010
So who wants to start writing up the text for the 28th Amendment?
posted by Atreides at 11:24 AM on June 8, 2010
posted by Atreides at 11:24 AM on June 8, 2010
The Arizona clean elections system is partially to blame for our immigration fiasco and general decay of the state. The system, especially the matching funds provision, have allowed ultra right wing jackasses to compete and even beat the more moderate pro-business Republicans.
posted by nestor_makhno at 11:42 AM on June 8, 2010 [2 favorites]
posted by nestor_makhno at 11:42 AM on June 8, 2010 [2 favorites]
Atreides: "So who wants to start writing up the text for the 28th Amendment?"
Callaconvention.org proposes a Constitutional Convention to address money in politics, among other issues.
posted by l33tpolicywonk at 11:49 AM on June 8, 2010 [1 favorite]
Callaconvention.org proposes a Constitutional Convention to address money in politics, among other issues.
posted by l33tpolicywonk at 11:49 AM on June 8, 2010 [1 favorite]
Increasingly, the politician who spends the most money isn't the guaranteed winner.
Yes, occasionally the guy with hundreds of millions in corporate backing is able to defeat the guy who has slightly fewer hundreds of millions in corporate backing.
posted by coolguymichael at 12:04 PM on June 8, 2010 [1 favorite]
Yes, occasionally the guy with hundreds of millions in corporate backing is able to defeat the guy who has slightly fewer hundreds of millions in corporate backing.
posted by coolguymichael at 12:04 PM on June 8, 2010 [1 favorite]
Free speech is not without limits. The textbook example is yelling fire in a crowded theater. This is not protected speech. Your right to scream fire is counterbalanced by the rights of others. Their right to not have their safety risked or to endure the theft of their ticket purchase value.
We regularly limit speech that would endanger or damage others. Safety labels, libel, and copyright law are all examples of regulating the speech of some to accommodate different rights for others. We may argue the exact implementation of those examples but the principle is largely without controversy.
Political speech is afforded special status with good reason. Free political speech is seen as the keystone to maintaining our other enumerated and implied freedoms. As such, any restrictions on political speech require special consideration.
I assert the above as a fair starting point for discussion of money as political speech without regard to where one comes down on the issue. Those being my assertions I come to the following conclusion on the subject:
The point of debate one should focus on is not if campaign contributions constitute political speech. I grant that they do. Rather we should be debating whether the impact of some given political speech is such that it undermines the foundation of rights other than speech.
Our rights, as enumerated by the Constitution, exist in a tensegrity webwork with each other. The Supreme Court exists to adjudicate a balance in cases where two or more rights are in conflict with one another. Just because the right to free political speech exists does not mean that it automatically trumps all other rights. The Court exists to mediate a balance between fundamental rights when they conflict.
The debate does not end with saying campaign contributions equal political speech. The debate begins at that point. Where does my right to political speech conflict with others' rights and at what point it is reasonable to curtail one right in support of another?
posted by Babblesort at 12:10 PM on June 8, 2010 [4 favorites]
We regularly limit speech that would endanger or damage others. Safety labels, libel, and copyright law are all examples of regulating the speech of some to accommodate different rights for others. We may argue the exact implementation of those examples but the principle is largely without controversy.
Political speech is afforded special status with good reason. Free political speech is seen as the keystone to maintaining our other enumerated and implied freedoms. As such, any restrictions on political speech require special consideration.
I assert the above as a fair starting point for discussion of money as political speech without regard to where one comes down on the issue. Those being my assertions I come to the following conclusion on the subject:
The point of debate one should focus on is not if campaign contributions constitute political speech. I grant that they do. Rather we should be debating whether the impact of some given political speech is such that it undermines the foundation of rights other than speech.
Our rights, as enumerated by the Constitution, exist in a tensegrity webwork with each other. The Supreme Court exists to adjudicate a balance in cases where two or more rights are in conflict with one another. Just because the right to free political speech exists does not mean that it automatically trumps all other rights. The Court exists to mediate a balance between fundamental rights when they conflict.
The debate does not end with saying campaign contributions equal political speech. The debate begins at that point. Where does my right to political speech conflict with others' rights and at what point it is reasonable to curtail one right in support of another?
posted by Babblesort at 12:10 PM on June 8, 2010 [4 favorites]
If Campaign Finance "Deform" is overturned it will be a great day for freedom of speech. Why fear allowing groups to spend unlimited money? With cable, radio, blogs, Twitter, Facebook, etc any group has plenty of ways to get their message out.
posted by republican at 12:12 PM on June 8, 2010
posted by republican at 12:12 PM on June 8, 2010
I'm totally uncomfortable with the amount of money corporations can spend on political campaigns. I'm much more uncomfortable with controlling political speech, no matter how reprehensible.
Corporations aren't people. They aren't even collections of people -- they're artificial legal constructs, chartered by the government for the purpose of making money. If corporate shareholders want to sell their shares and spend the money on political donations, fine. If corporations want to give up their special legal status and engage in a bit of electioneering, fine. Otherwise, I don't see how anybody's free speech is impinged upon by keeping corporate money out of politics.
posted by steambadger at 12:21 PM on June 8, 2010 [5 favorites]
Corporations aren't people. They aren't even collections of people -- they're artificial legal constructs, chartered by the government for the purpose of making money. If corporate shareholders want to sell their shares and spend the money on political donations, fine. If corporations want to give up their special legal status and engage in a bit of electioneering, fine. Otherwise, I don't see how anybody's free speech is impinged upon by keeping corporate money out of politics.
posted by steambadger at 12:21 PM on June 8, 2010 [5 favorites]
One dollar, one vote -- what's wrong with that?
posted by warbaby at 12:38 PM on June 8, 2010 [1 favorite]
posted by warbaby at 12:38 PM on June 8, 2010 [1 favorite]
I can see how a court could rule against this.
In Arizona's system, you get more money if you face a normally-financed candidate who spends more than you.
But this means that the government of Arizona is giving more money to some candidates specifically because they are more strongly opposed than other candidates, which means that the government of Arizona is rewarding some speech (or political opinions) on the basis of the content of that speech or opinion. Which is normally less than kosher.
(It looks like the plaintiffs didn't make that claim, though)
posted by ROU_Xenophobe at 12:45 PM on June 8, 2010
In Arizona's system, you get more money if you face a normally-financed candidate who spends more than you.
But this means that the government of Arizona is giving more money to some candidates specifically because they are more strongly opposed than other candidates, which means that the government of Arizona is rewarding some speech (or political opinions) on the basis of the content of that speech or opinion. Which is normally less than kosher.
(It looks like the plaintiffs didn't make that claim, though)
posted by ROU_Xenophobe at 12:45 PM on June 8, 2010
Spending simply can't be equated with speech under the law, IMO, because redefining speech in this way (and make no mistake: it's redefining what speech has historically meant in law) forces the system to provide unequal access to what was intended to be a fundamental, universal right. Remember: One of the main arguments for heavily Federally subsidizing the post office in the early days was to keep postal rates low and ensure anyone could mail out tracts to get their political messages out; policies relating to public-access television have similarly been justified on the grounds that they promote more equality in access to the means of participating in the public discourse. Has the playing field ever truly been level? Of course not, but the intent of the law was once clear. There are more than ample additional historical examples that make it plain the intent of free speech protections, if you claim to be any kind of originalist, was to provide as much as possible a relatively level playing field for access to the mechanisms of public speech, and in cases (such as broadcast media) where true equal access couldn't be achieved, speech rights were systematically constrained by the demands of the public interest.
And goddammit, money just obviously isn't anything at all like speech; money is a resource that allows some individuals to reach a larger audience with their speech, but spending is by no reasonable stretch itself either a medium of speech nor a part of the message. How can intelligent people muddle such a simple issue up so much? Why on earth should spending money be considered speech now when it clearly hasn't been all along ( these kinds of legal challenges would have surely appeared much earlier in our history if that were not the case)? In all this time since the bill of rights was adopted, surely if it had been the intent to regard spending as protected speech, there would be an enormous body of legal precedent clarifying that initial unintended point of ambiguity. But no, although spending certainly wasn't invented in the last century, and no other relevant considerations have changed, here we are now acting as if it's even a sensible proposition to equate speech with spending when that's so obviously a categorical error.
Framing any of these political spending-related issues as matters of "free speech" fundamentally gets it wrong, can only result in logically incoherent, just-so jurisprudence, and undermines the equal protection clause, systematically granting the wealthy greater legal protections and access to the mechanisms of exercising their speech rights.
posted by saulgoodman at 1:16 PM on June 8, 2010 [1 favorite]
And goddammit, money just obviously isn't anything at all like speech; money is a resource that allows some individuals to reach a larger audience with their speech, but spending is by no reasonable stretch itself either a medium of speech nor a part of the message. How can intelligent people muddle such a simple issue up so much? Why on earth should spending money be considered speech now when it clearly hasn't been all along ( these kinds of legal challenges would have surely appeared much earlier in our history if that were not the case)? In all this time since the bill of rights was adopted, surely if it had been the intent to regard spending as protected speech, there would be an enormous body of legal precedent clarifying that initial unintended point of ambiguity. But no, although spending certainly wasn't invented in the last century, and no other relevant considerations have changed, here we are now acting as if it's even a sensible proposition to equate speech with spending when that's so obviously a categorical error.
Framing any of these political spending-related issues as matters of "free speech" fundamentally gets it wrong, can only result in logically incoherent, just-so jurisprudence, and undermines the equal protection clause, systematically granting the wealthy greater legal protections and access to the mechanisms of exercising their speech rights.
posted by saulgoodman at 1:16 PM on June 8, 2010 [1 favorite]
Don't let grobstein's point stop the axe-grinding. That would be impolite.
posted by spicynuts at 1:22 PM on June 8, 2010
posted by spicynuts at 1:22 PM on June 8, 2010
Yeah, as grobstein said, we don't know what this is, or indeed if it is anything at all, yet. The court is looking into possibly granting cert on the case, and even if they do grant cert, that doesn't mea they're ruling against it. Citizen's United was a landmark case (and a bad one by my estimation, but still the most major decision of the last term) and this gives them the opportunity to clarify some things.
Or not. But we don't know anything yet.
posted by Navelgazer at 1:36 PM on June 8, 2010
Or not. But we don't know anything yet.
posted by Navelgazer at 1:36 PM on June 8, 2010
Like I said originally, the court "seems poised" to take up the case and consider the question. That's a true, relatively value-neutral statement. Either way, it's a tense moment for some of us. The court could could conceivably rule on this matter in a way that kills even the legal possibility (short of calling a constitutional convention) to create a public campaign finance system in our country. That obviously hasn't happened yet, but the fact that the current court tends to lean to the right in its judicial philosophy is not exactly controversial nor encouraging. To people like me, who believe the entire political campaign funding system should ideally be publicly financed (as it is in some other Western democracies), this is a potentially big, and not at all encouraging development.
posted by saulgoodman at 1:41 PM on June 8, 2010 [1 favorite]
posted by saulgoodman at 1:41 PM on June 8, 2010 [1 favorite]
Also, more importantly, this court action is preventing the current ongoing campaign finance system from operating as it was intended. This is a move with immediate political consequences, and shows the court's willingness to trump state authority on these matters.
posted by saulgoodman at 1:42 PM on June 8, 2010
posted by saulgoodman at 1:42 PM on June 8, 2010
I agree that spending is speech, so let's just let people give politicians and bureaucrats money directly. That's bribery, you say? Hey, it's just a conversation! Can't possibly be illegal, can it?
posted by Mental Wimp at 1:42 PM on June 8, 2010
posted by Mental Wimp at 1:42 PM on June 8, 2010
steambadger: Corporations aren't people. They aren't even collections of people -- they're artificial legal constructs, chartered by the government for the purpose of making money
Yeah, I was being really sloppy there, and I think I made an argument I didn't mean to make. Problem is corporations have been recognized as having these rights and we're going to have to make a lot more fundamental changes in order to wrong that right, and I'm not sure campaign finance restrictions is the way we're going to make it.
But I'm not even sure about that, so I'll just say on this matter I agree with you much more than I may have seemed and bow out and be glad that I found the link to callaconvention.org because even though I think more is right about our current system than is wrong, some fundamental changes would make things much better, and going to the fundamental base of these problems (constitutional changes) is perhaps a lot more appropriate way to do so than trying to win battles/get overly excited on technicalities.
posted by MCMikeNamara at 1:44 PM on June 8, 2010
Yeah, I was being really sloppy there, and I think I made an argument I didn't mean to make. Problem is corporations have been recognized as having these rights and we're going to have to make a lot more fundamental changes in order to wrong that right, and I'm not sure campaign finance restrictions is the way we're going to make it.
But I'm not even sure about that, so I'll just say on this matter I agree with you much more than I may have seemed and bow out and be glad that I found the link to callaconvention.org because even though I think more is right about our current system than is wrong, some fundamental changes would make things much better, and going to the fundamental base of these problems (constitutional changes) is perhaps a lot more appropriate way to do so than trying to win battles/get overly excited on technicalities.
posted by MCMikeNamara at 1:44 PM on June 8, 2010
How can intelligent people muddle such a simple issue up so much?
Um, there's an assumption in that statement that may be unwarranted.
posted by Mental Wimp at 1:45 PM on June 8, 2010 [1 favorite]
Um, there's an assumption in that statement that may be unwarranted.
posted by Mental Wimp at 1:45 PM on June 8, 2010 [1 favorite]
"Wait, officer--you misunderstand. I wasn't buying a bag of pot, I was just exercising my constitutionally protected right to speak out in favor or marijuana legalization."
posted by saulgoodman at 1:52 PM on June 8, 2010 [2 favorites]
posted by saulgoodman at 1:52 PM on June 8, 2010 [2 favorites]
I'm going to exercise my free speech rights and start flinging pennies at politicians.
Note to Secret Service: I'm not going to do this.
posted by dirigibleman at 2:16 PM on June 8, 2010
Note to Secret Service: I'm not going to do this.
posted by dirigibleman at 2:16 PM on June 8, 2010
The court could could conceivably rule on this matter in a way that kills even the legal possibility (short of calling a constitutional convention) to create a public campaign finance system in our country.
What? No it couldn't.*
All the court could do here is say that you can't have a public financing system where the amount of money a participating candidate receives is contingent on how much money a nonparticipant opponent has raised. A public financing system where the amount a participant receives is a fixed sum, depends on the number of voters in the contested district, or similar would remain completely unaffected by any remotely conceivable ruling on this case.
*Yes, I admit that it's conceivable in the same sense that it is physically possible that the Court might issue a ruling that everyone in the world must travel to DC to fellate Scalia.
posted by ROU_Xenophobe at 2:45 PM on June 8, 2010
What? No it couldn't.*
All the court could do here is say that you can't have a public financing system where the amount of money a participating candidate receives is contingent on how much money a nonparticipant opponent has raised. A public financing system where the amount a participant receives is a fixed sum, depends on the number of voters in the contested district, or similar would remain completely unaffected by any remotely conceivable ruling on this case.
*Yes, I admit that it's conceivable in the same sense that it is physically possible that the Court might issue a ruling that everyone in the world must travel to DC to fellate Scalia.
posted by ROU_Xenophobe at 2:45 PM on June 8, 2010
Am I the only voter in the United States of America who uses every political advertisement I see as a reason to vote AGAINST the person or proposition it supports, regardless of content? It's not the only reason I use, but is good for otherwise close calls. (And usually reinforces decisions I've made for other reasons) Can you imagine the potential clout of an Anti-Ad Voters bloc? It certainly makes a hell of a lot more sense than voting against every incumbent.
posted by oneswellfoop at 3:00 PM on June 8, 2010
posted by oneswellfoop at 3:00 PM on June 8, 2010
I certainly know I wish I could sign up for a no-political-junk-mail list. We've reduced our non-solicited mailings a lot here in the bear household over the last few years, but the WA candidates have taken to mailing out very high quality glossy card stock giant postcard things, and they're not wanted here. We research candidates and vote accordingly, and never read political mailings or email. We also don't watch local channels (not even networks) a whole lot, so we don't see television ads.
I think the problem on some level is that political candidates market themselves like they're a new flavor of soda or something. Which may lead to increased votes come elections, but it's not democracy.
posted by hippybear at 3:59 PM on June 8, 2010
I think the problem on some level is that political candidates market themselves like they're a new flavor of soda or something. Which may lead to increased votes come elections, but it's not democracy.
posted by hippybear at 3:59 PM on June 8, 2010
All the court could do here is say that you can't have a public financing system where the amount of money a participating candidate receives is contingent on how much money a nonparticipant opponent has raised.
I'm sure this probably should be correct, but I'm taking nothing for granted. In saner times, I might not worry, but these are not sane times.
Besides what could the case behind this appeal possibly be? What's the argument here? Basically, the basis of the appeal, from what I can gather is this:
Critics contend matching funds chill free-speech rights of privately financed candidates and their contributors by inhibiting fundraising and spending.
Assuming that the court again accepts the stupid argument that political fundraising and spending are protected speech acts, if the court rules in this case that public policies designed to equalize political speech through lawfully enacted public campaign financing mechanisms somehow pose a constitutional problem, that lays the groundwork for ruling all public campaign financing unconstitutional for having the effect of inhibiting political fundraising and spending.
If they address the constitutional issues raised in the appeal at all, how could the court possibly construct a ruling narrowly enough to allow public campaign financing in any case, if it rejects these specific aspects of the public financing system in Arizona? Even if they ruled that completely publicly financed elections might be kosher, how do we square that with earlier rulings that extend protections to political fundraising and spending on free speech grounds? They can't very well rule now that, in certain cases, it is constitutional to curtail political fundraising and spending. Any rules barring candidates from accepting and spending private political donations should be viewed as constitutionally problematic, too, under the logic of Citizens United.
A public financing system where the amount a participant receives is a fixed sum, depends on the number of voters in the contested district, or similar would remain completely unaffected by any remotely conceivable ruling on this case.
Why wouldn't that also have an inhibiting effect on political fundraising and spending? This is just another example of why the spending = speech construct is so impossibly stupid: In any of the alternative scenarios you describe, wealthier, well-connected candidates would automatically enjoy a systematically reinforced advantage over candidates who aren't wealthy even in the absence of any outside political support. A wealthy candidate could run a campaign with access to theoretically unlimited amounts of personal funds while a poor candidate's campaign would be limited by the constraints on the public finance system. It's like a system of political apartheid for the poor. You couldn't deliberately design a system more perfectly optimized to disenfranchise all but the wealthiest participants.
posted by saulgoodman at 6:42 PM on June 8, 2010
I'm sure this probably should be correct, but I'm taking nothing for granted. In saner times, I might not worry, but these are not sane times.
Besides what could the case behind this appeal possibly be? What's the argument here? Basically, the basis of the appeal, from what I can gather is this:
Critics contend matching funds chill free-speech rights of privately financed candidates and their contributors by inhibiting fundraising and spending.
Assuming that the court again accepts the stupid argument that political fundraising and spending are protected speech acts, if the court rules in this case that public policies designed to equalize political speech through lawfully enacted public campaign financing mechanisms somehow pose a constitutional problem, that lays the groundwork for ruling all public campaign financing unconstitutional for having the effect of inhibiting political fundraising and spending.
If they address the constitutional issues raised in the appeal at all, how could the court possibly construct a ruling narrowly enough to allow public campaign financing in any case, if it rejects these specific aspects of the public financing system in Arizona? Even if they ruled that completely publicly financed elections might be kosher, how do we square that with earlier rulings that extend protections to political fundraising and spending on free speech grounds? They can't very well rule now that, in certain cases, it is constitutional to curtail political fundraising and spending. Any rules barring candidates from accepting and spending private political donations should be viewed as constitutionally problematic, too, under the logic of Citizens United.
A public financing system where the amount a participant receives is a fixed sum, depends on the number of voters in the contested district, or similar would remain completely unaffected by any remotely conceivable ruling on this case.
Why wouldn't that also have an inhibiting effect on political fundraising and spending? This is just another example of why the spending = speech construct is so impossibly stupid: In any of the alternative scenarios you describe, wealthier, well-connected candidates would automatically enjoy a systematically reinforced advantage over candidates who aren't wealthy even in the absence of any outside political support. A wealthy candidate could run a campaign with access to theoretically unlimited amounts of personal funds while a poor candidate's campaign would be limited by the constraints on the public finance system. It's like a system of political apartheid for the poor. You couldn't deliberately design a system more perfectly optimized to disenfranchise all but the wealthiest participants.
posted by saulgoodman at 6:42 PM on June 8, 2010
Besides what could the case behind this appeal possibly be?
I already outlined a case above, though it doesn't seem to be the argument the plaintiffs have raised so far. The baseline logic is that the government should not act differently towards your speech or political opinions on the basis of their content. But if the government gives you a direct monetary reward for speaking in ways that at least some people very vigorously oppose, that's favoring some kinds of speech (or opinion) over others.
how could the court possibly construct a ruling narrowly enough to allow public campaign financing in any case, if it rejects these specific aspects of the public financing system in Arizona?
By striking down the parts of the law that give you more money if your nonparticipant opponent spends more, but leaving the rest alone.
Even if they ruled that completely publicly financed elections might be kosher
Do you mean elections where everyone is required to accept public funding and is forbidden from using other funding? Never gonna happen. Fundamentally snaps the first amendment over its leg. This would mean that people are forbidden from speaking about political issues except through whatever channels the government decides to provide them for that purpose.
Why wouldn't that also have an inhibiting effect on political fundraising and spending?
Because it's invariant across your fundraising. Raise nothing, and your participating opponent gets $X. Raise $1000, your participating opponent gets $X. Raise $100000, your participating opponent gets $X. Raise the entire gross domestic product of Brazil, your participating opponent gets $X.
Incidentally, your concern here is kind of misplaced. In the technical lingo, there's a very strong endogeneity problem with money and elections. It's not the case that many candidates do badly because they can't get money; it's much more that candidates can't get money because they're immediately recognized as terrible, hopeless candidates who not ever win a fair election. In part because their political goals are wildly out of step with the polity they're trying to be elected from, in part because they simply lack the organizational knowledge to successfully manage a campaign (or even what to look for in a hired manager).
The long and short of it is that if it were the case that a candidate could stand a fighting chance if he had funding, he stands a very good chance of actually having enough funding to get out and make his case to the district or city or whatever.
posted by ROU_Xenophobe at 7:01 PM on June 8, 2010
I already outlined a case above, though it doesn't seem to be the argument the plaintiffs have raised so far. The baseline logic is that the government should not act differently towards your speech or political opinions on the basis of their content. But if the government gives you a direct monetary reward for speaking in ways that at least some people very vigorously oppose, that's favoring some kinds of speech (or opinion) over others.
how could the court possibly construct a ruling narrowly enough to allow public campaign financing in any case, if it rejects these specific aspects of the public financing system in Arizona?
By striking down the parts of the law that give you more money if your nonparticipant opponent spends more, but leaving the rest alone.
Even if they ruled that completely publicly financed elections might be kosher
Do you mean elections where everyone is required to accept public funding and is forbidden from using other funding? Never gonna happen. Fundamentally snaps the first amendment over its leg. This would mean that people are forbidden from speaking about political issues except through whatever channels the government decides to provide them for that purpose.
Why wouldn't that also have an inhibiting effect on political fundraising and spending?
Because it's invariant across your fundraising. Raise nothing, and your participating opponent gets $X. Raise $1000, your participating opponent gets $X. Raise $100000, your participating opponent gets $X. Raise the entire gross domestic product of Brazil, your participating opponent gets $X.
Incidentally, your concern here is kind of misplaced. In the technical lingo, there's a very strong endogeneity problem with money and elections. It's not the case that many candidates do badly because they can't get money; it's much more that candidates can't get money because they're immediately recognized as terrible, hopeless candidates who not ever win a fair election. In part because their political goals are wildly out of step with the polity they're trying to be elected from, in part because they simply lack the organizational knowledge to successfully manage a campaign (or even what to look for in a hired manager).
The long and short of it is that if it were the case that a candidate could stand a fighting chance if he had funding, he stands a very good chance of actually having enough funding to get out and make his case to the district or city or whatever.
posted by ROU_Xenophobe at 7:01 PM on June 8, 2010
The right's argument comes down to one truly faulty premise: Personal (and by extension, corporate) power is good, non-corruptible, and pure as the driven snow. Government power is always evil, and can never be anything but evil.
The real world proves them wrong at every turn, but they just don't seem to take any notice.
Unfortunately, peaceful change keeps receding.
posted by Benny Andajetz at 7:05 PM on June 8, 2010 [1 favorite]
The real world proves them wrong at every turn, but they just don't seem to take any notice.
Unfortunately, peaceful change keeps receding.
posted by Benny Andajetz at 7:05 PM on June 8, 2010 [1 favorite]
This would mean that people are forbidden from speaking about political issues except through whatever channels the government decides to provide them for that purpose
Only if I accept the inane and increasingly obnoxious premise that speech and spending are in any sense equivalent or related, which they just aren't in any sane world.
This is how the British system works, pure publicly funded campaigns, and no, it doesn't in any way limit speech to "approved channels"; it simply ensures that all political speech is equally represented in the marketplace by affording no one candidate's views the de facto unequal protections that economic imbalances create.
posted by saulgoodman at 7:28 PM on June 8, 2010
Only if I accept the inane and increasingly obnoxious premise that speech and spending are in any sense equivalent or related, which they just aren't in any sane world.
This is how the British system works, pure publicly funded campaigns, and no, it doesn't in any way limit speech to "approved channels"; it simply ensures that all political speech is equally represented in the marketplace by affording no one candidate's views the de facto unequal protections that economic imbalances create.
posted by saulgoodman at 7:28 PM on June 8, 2010
The long and short of it is that if it were the case that a candidate could stand a fighting chance if he had funding, he stands a very good chance of actually having enough funding to get out and make his case to the district or city or whatever.
And yet the candidates who get funding are wretched and getting worse each day, so you conclusion is that any decent government is impossible? Since most of the money in the US is owned by a tiny percentage of the populace, your conclusion is that only these tiny percentage of the people get to decide, and the rest don't?
I don't buy this - and at least one of the reasons I don't buy it is that "fringe" candidates win quite often in other countries where access to media is guaranteed for all candidates (look at the recent Anarcho-Surrealist wins in Iceland).
posted by lupus_yonderboy at 7:35 PM on June 8, 2010 [1 favorite]
And yet the candidates who get funding are wretched and getting worse each day, so you conclusion is that any decent government is impossible? Since most of the money in the US is owned by a tiny percentage of the populace, your conclusion is that only these tiny percentage of the people get to decide, and the rest don't?
I don't buy this - and at least one of the reasons I don't buy it is that "fringe" candidates win quite often in other countries where access to media is guaranteed for all candidates (look at the recent Anarcho-Surrealist wins in Iceland).
posted by lupus_yonderboy at 7:35 PM on June 8, 2010 [1 favorite]
Only if I accept the inane and increasingly obnoxious premise that speech and spending are in any sense equivalent or related, which they just aren't in any sane world.
No, if you were legally required to accept government funding for your campaign, and were forbidden from funding it in any other way, then that would simply and directly mean that your only legal means of persuading voters to vote for you are those means the government provides you with.
This is how the British system works, pure publicly funded campaigns, and no, it doesn't in any way limit speech to "approved channels"
Of course it does, taking your description of it as given. If you want to campaign more than the government allows you to, or before the government allows you to, you are legally forbidden from doing so. If you're at the limit and you'd like to commission one last ad to respond to the maliciously distorted allegations an opponent has just made, you can't.
posted by ROU_Xenophobe at 8:18 PM on June 8, 2010
No, if you were legally required to accept government funding for your campaign, and were forbidden from funding it in any other way, then that would simply and directly mean that your only legal means of persuading voters to vote for you are those means the government provides you with.
This is how the British system works, pure publicly funded campaigns, and no, it doesn't in any way limit speech to "approved channels"
Of course it does, taking your description of it as given. If you want to campaign more than the government allows you to, or before the government allows you to, you are legally forbidden from doing so. If you're at the limit and you'd like to commission one last ad to respond to the maliciously distorted allegations an opponent has just made, you can't.
posted by ROU_Xenophobe at 8:18 PM on June 8, 2010
If you're at the limit and you'd like to commission one last ad to respond to the maliciously distorted allegations an opponent has just made, you can't.
If you're running against a completely self-funded billionaire candidate, like Florida gubernatorial candidate Rick Scott, a health care industry tycoon who not only presided over the nation's largest Medicare fraud scandal as CEO of Columbia/HCA, but who reputedly made billions shorting the Florida real estate market during the recent real estate crash, and you don't have anything but a compelling political message to sell yourself, you're even worse off. In fact, odds are you won't even be able to get on a primary ballot.
then that would simply and directly mean that your only legal means of persuading voters to vote for you are those means the government provides you with.
Yeah, which would just be money the government provides you to spend at your discretion. The same amount as every other candidate gets, giving none an unfair starting advantage over any other, nor granting greater weight to the political speech of one candidate over another simply by virtue of their existing financial circumstances.
posted by saulgoodman at 8:31 PM on June 8, 2010
If you're running against a completely self-funded billionaire candidate, like Florida gubernatorial candidate Rick Scott, a health care industry tycoon who not only presided over the nation's largest Medicare fraud scandal as CEO of Columbia/HCA, but who reputedly made billions shorting the Florida real estate market during the recent real estate crash, and you don't have anything but a compelling political message to sell yourself, you're even worse off. In fact, odds are you won't even be able to get on a primary ballot.
then that would simply and directly mean that your only legal means of persuading voters to vote for you are those means the government provides you with.
Yeah, which would just be money the government provides you to spend at your discretion. The same amount as every other candidate gets, giving none an unfair starting advantage over any other, nor granting greater weight to the political speech of one candidate over another simply by virtue of their existing financial circumstances.
posted by saulgoodman at 8:31 PM on June 8, 2010
In fact, odds are you won't even be able to get on a primary ballot.
Near as I can tell from doing something crazy like actually reading the actual documents that Florida actually provides actual candidates, it looks like what you have to do to get onto a primary ballot for the 2010 gubernatorial election is write a check for $7,816.38 to the Florida Secretary of State and turn in some paperwork.
posted by ROU_Xenophobe at 9:53 PM on June 8, 2010
Near as I can tell from doing something crazy like actually reading the actual documents that Florida actually provides actual candidates, it looks like what you have to do to get onto a primary ballot for the 2010 gubernatorial election is write a check for $7,816.38 to the Florida Secretary of State and turn in some paperwork.
posted by ROU_Xenophobe at 9:53 PM on June 8, 2010
Exactly. You have to pay to participate.
posted by saulgoodman at 10:00 PM on June 8, 2010
posted by saulgoodman at 10:00 PM on June 8, 2010
Also, in general elections, the party delegates decide which candidates will represent the party in national races. A chief factor in that decision-making is the perceived fundraising ability/access to financing of the candidate. At the national level, you either have to be rich to start with, or be able to round up large amounts of funding from benefactors to be considered a viable candidate (and as we all learned from Piers Morgan's example in that one season of Celebrity Apprentice, that's a much lower bar for people who have lots of wealthy connections, regardless of their other personal merits).
posted by saulgoodman at 10:11 PM on June 8, 2010
posted by saulgoodman at 10:11 PM on June 8, 2010
Exactly. You have to pay to participate.
It is indisputably the case that the Florida gubernatorial election process is only open to multi-thousandaires, and unkind to those with a compelling political message that for whatever reason fails to compel a sufficient number of donors to gather $8000.
posted by ROU_Xenophobe at 11:01 PM on June 8, 2010
It is indisputably the case that the Florida gubernatorial election process is only open to multi-thousandaires, and unkind to those with a compelling political message that for whatever reason fails to compel a sufficient number of donors to gather $8000.
posted by ROU_Xenophobe at 11:01 PM on June 8, 2010
SCOTUS fucked the next Arizona election, gratuitously. They could have not granted the stay and still heard the case next fall. Instead, they've changed the rules of the election mid-stream and screwed candidates depending on public funding.
posted by QIbHom at 6:26 AM on June 9, 2010 [1 favorite]
posted by QIbHom at 6:26 AM on June 9, 2010 [1 favorite]
Quick book recommendation: Last Call: The Rise and Fall of Prohibition.
The Parable of Prohibition: A very bizarre chapter of history can teach us a lot.
posted by homunculus at 9:52 AM on June 9, 2010
The Parable of Prohibition: A very bizarre chapter of history can teach us a lot.
posted by homunculus at 9:52 AM on June 9, 2010
There's a nice summary of some of the legal arguments made in the lower court ruling that's being appealed over here on Kos.
posted by saulgoodman at 12:00 PM on June 9, 2010
posted by saulgoodman at 12:00 PM on June 9, 2010
Imagining a Liberal Court: It’s time to set aside the (nearly finished) battles over social and cultural issues — and develop a progressive jurisprudence of economic justice.
posted by homunculus at 4:09 PM on June 26, 2010
posted by homunculus at 4:09 PM on June 26, 2010
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posted by echo target at 10:38 AM on June 8, 2010 [3 favorites]