Welcome Back from Planet Scalia

December 10, 2003 9:10 AM

Welcome Back from Planet ScaliaA funny thing happened on the way to declaring bribery a form a free speech...
posted by victors (51 comments total)

Want to get confused? Check out the heading:

STEVENS and O?CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O?CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O?CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II?A, and II?B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

Good that this was done, and quite surprising, though not exactly in the spirit of unanimity with which Chief Justice Warren corralled remaining holdouts from the Brown v. Board of Education decision.
posted by PrinceValium at 9:37 AM on December 10, 2003

Here is a direct link to the opinion. Although at 298 pages, I'm not sure how many will want to wade through it. Rick Hasen's Election Law blog provides excellent commentary.
posted by monju_bosatsu at 9:40 AM on December 10, 2003

I should note for those interested but daunted by the weight of the opinion, each Supreme Court decision contains a syllabus--usually two or three pages--that summarizes each opinion. In this case the syllabus is nearly 20 pages long, but well worth reading if you want to get the gist of the decision.
posted by monju_bosatsu at 9:44 AM on December 10, 2003

First, isn't this just NewsFilter?

Oh, but it has a snark about Scalia, so nevermind, it's ok.



But as to your commentary, you suggest that all issue advocacy is bribery.

Wow.

Well, perhaps you don't know what the First Amendment is. To many, it merely means "Free Speech." Many think this means porno is acceptable and vulgarity too. However, the original intent of the First Amendment's protection of freedom of speech is that it refers to political speech. That is, speech that attempts to inform and influence democracy. The vary nature of democracy requires that everyone have its voice.
So, the First Amendment, if it means anything, must mean that the right to political speech, or in other words, "issue advocacy," must not be abridged. Yet, from your comment, it seems you would not give issue advocacy this protection, but I would presume that you would defend pornographers protection? If so, that is a fundamental misunderstanding of the First Amendment.


Look, what this does is throw the baby out with the bathwater.
If your goal is to stop corruption (or "bribery" as you call it), then the answer is full disclosure. If there is corruption and quid pro quo, then the public will find out about it and appropriate political ramifications will follow. So there are ways to guard against corruption without having to screw over those who honestly seek to engage in political discourse.

But in order to eleminate some nebulous idea of corruption, you'd prefer to emasculate the First Amendment's protection of political speech?
posted by Seth at 10:05 AM on December 10, 2003

But in order to eleminate some nebulous idea of corruption, you'd prefer to emasculate the First Amendment's protection of political speech?
posted by Seth at 10:05 AM PST on December 10

Fear, uncertainty, doubt.
Spread it all around.

Each individual has an equal vote, one.
Should not the amount an individual can monetarily support an effort be equal under the law?
posted by the fire you left me at 10:13 AM on December 10, 2003

Hmm, I was under the impression that the law upheld by the Supreme Court had to do with soft money donations to campaigns and the fact that the money was intended to be used for the party but not specifically for campaigns.

I, for one, am happy with the prospect of a more level playing field where Megacorp can't just donate a few million bucks to a campaign for a soul less corporate bitch who will look the other way while Megacorp dumps toxic waste into the nation's water supply.
posted by fenriq at 10:33 AM on December 10, 2003

Each individual has an equal vote, one.
Should not the amount an individual can monetarily support an effort be equal under the law?
posted by the fire you left me at 12:13 PM CST on December 10

One person, one vote?

Could you point me to the provision of the Constitution that provides that?

Oh, that's right, it isn't in there. That is judge-made law.



As for the idea that there should be a cap on the amount of money an individual should spend, it doesn't follow from your premise.

Your premise can't possibly be that we should cap spending at 2k because then everyone will spend the same, because the vast majority won't spend 2k.

But absent that, there is a further problem: where does the desire to enforce equality end?

Spending money on issue advocacy is no different than standing on the court house steps and stumping. Well, if we want to make a quanitative restriction on money, should we also not make a quanitative restriction on speech? Or how about a qualitative restriction? Those who spend more money tend to have stronger effect; but what about those who are more eloquent? People with speech impediments (or poor) can't be as effective as those who are eloquent orators (or rich). So should we restrict people's right to speak?

I know, how about in order to enforce equality, we just eleminate political speech totally?
That way, no one will have more of a voice than anyone else.
posted by Seth at 10:39 AM on December 10, 2003

fenriq,
If that is what is happening, people are buying influence, then why isn't the answer full disclosure?

If we know that Megacorp bought off politicians, isn't there an already existing method to resolve that: checks and balances, impeachment proceedings, regular elections, public outcry, etc.

If such impropriety exists, there are already ways to deal with it.

Why emasculate the First Amendment and prevent those, who are trying to legitimately be issue advoacates, in order to protect against something which already has a remedy?
posted by Seth at 10:44 AM on December 10, 2003

Spending money on issue advocacy is no different than standing on the court house steps and stumping.

This is your assertion which I think people disagree with. Is it really the same for me to have the right to pay someone else a million dollars to say something as it is for me to have the right to say it? You have to at least make an argument as to why this should be the case.
posted by callmejay at 10:48 AM on December 10, 2003

Oh, but it has a snark about Scalia, so nevermind, it's ok.
A man not fit for dog catcher should have never been appointed to ANY judgeship, so, yes, snarking such filth is a positive thing. BTW, wasn't your statement rather snarky itself? But that's OK since its you hmmm? Narcissist.

Oh, that's right, it isn't in there. That is judge-made law.

As is all of our law. Is that a problem? See, any law is subject to interpretation, even the Constitution, there's no avoiding it. Just because you disagree with an interpretation changes nothing. You would prefer $1,000, one vote?

I know, how about in order to enforce equality, we just eleminate political speech totally?
Now you show your true colors. Never question Dear Leader or face charges of treason.

Gee, Seth this wing nut trolling is kinda fun! Thanks for the style guide!
posted by nofundy at 10:53 AM on December 10, 2003

Do limits on campaign contributions emasculate the first amendment? That depends to the extent one accepts the equation of campaign contributions with "speech".

As a quick thought experiment, imagine : in the US of the year 2067, the top 1% of Americans control 99% of the wealth and make roughly 99% of the campaign contributions as well as providing the vast bulk of financing for politically oriented advertising of all sorts, for think tanks, for nonprofits with political agendas....they also control all but a tiny percent of the media and - despite loud protestations to the contrary - exert a significant control over news coverage.

My point, in the scenario above, is to show that there is really no clear cut line between the exercise of "Free Speech" rights by the most empowered in a democratic society, and oligarchic rule.
posted by troutfishing at 11:01 AM on December 10, 2003

If the knobs in charge are also the ones doing the investigations of impropriety then guess what? They'll never find anything wrong.

Or they'll just dismiss the charges out of hand. See Governor Gropinator's backpedal on his investigation into his own rampant groping of women for an example of what I mean.
posted by fenriq at 11:08 AM on December 10, 2003

One person, one vote?
Could you point me to the provision of the Constitution that provides that?

Gladly.

There's no such thing as constitutional law that's not "judge made" in the sense you're using it. Hell, the Supreme Court couldn't even review this law, let alone strike it down if it weren't for "judge-made law."

This is clearly the right decision. In democratic elections, there are clearly more interests as stake then the right to express yourself through unlimited monetary donations. Competing interests must be balanced, and McCain-Feingold does reasonably decent job of doing so.
posted by boltman at 11:12 AM on December 10, 2003

nofundy,
You take things to such preposterous extremes, that it is impossible to take you seriously.

Antonin Scalia... not fit for a dog catcher? How on earth do you expect anyone to take you seriously when you suggest such a thing? Is it possible that you believe such a claim? No rational person can harbor such a belief.

He received the highest rating of competency from the ABA and the FBI. He has sat, with respect, on the two most prestigious benches in our country. Taught at the most prestigious institutions. Even his political opponents (at least the ones who don't lack integrity) admit his intellectual acumen.

And yet, here you are, telling us that he isn't fit for dog catcther.

So is it a lack of integrity? Lack of reason? Evidence of someone who would damn common sense to try to make a political point?

Never question Dear Leader or face charges of treason.
What?

How in the hell do you turn this into a Bush thing? This is a constitutional theory question, and your overwhelming desire to hate on Bush causes you bring in such a ridiculous argument.

As if the whole "Poor Little Ol' Me, Mr. Protestor, Isn't Allowed to Protest" wasn't so completely ridiculous already, now you bring it in (along with an anti-Bush snark) to a discussion on consitutional interpretation.

That is completely pathetic.

If that is the kind of cliched irrationalism that one can expect from you in a discussion, then forgive me for not furthering this discussion with you.
posted by Seth at 11:17 AM on December 10, 2003

fenriq,
There are always elections.

Histroy has shown us, that we will throw the bums out.
posted by Seth at 11:18 AM on December 10, 2003

If your goal is to stop corruption (or "bribery" as you call it), then the answer is full disclosure.

Which would work if we were a nation full of attentive citizens who bothered to look up these contributions or listen when people tell us about them.

How about no disclosue? Completely anonymous donations. Support a candidate all you want, but if he/she finds out you're the donor, you lose the funds and perhaps incur other penalties.
posted by namespan at 11:25 AM on December 10, 2003

boltman,
no where in that amendment does it mention "one person, one vote."

It is completely judge-made law arising out of Baker v. Carr and Reynolds v. Sims.

And you are wrong that all law is judge made. We have a constitution; we have stautory law. Not all law is common law.

The "one person, one vote" concept was a completely judicially discovered principle with no basis in the constitution's borders which required states to apportioned their state governments (both houses) on a population basis. Thus, a state couldn't choose to have a house and a senate similar to the federal institutions, because the US Senate itself violates the "one person, one vote" doctrine." But it was a (much-maligned) judicially created principled that imposed by the Warren Court in those two cases.

The right to vote (which is expressly limited to only those who meet certain qualifications) does not create the right to have your vote count equally as someone else.

Taken to its logical consequence, "one person, one vote" would do away with the Electoral College and the Senate. Since that would be in direct conflict with the articulated constitutional principles, then it follows that "one person, one vote" cannot be in the Consitution.
posted by Seth at 11:28 AM on December 10, 2003

I will agree with Seth that, while I detest Scalia's judicial philosophy and he can sometimes display incredible intellectual dishonesty (as all of the more ideological Justices tend to), he is one smart cookie. Also, as a matter of pure style, he's the best opinion-writer on the court by far.
posted by boltman at 11:28 AM on December 10, 2003

it is a stretch (a loooong one) to say that a campaign contribution is a form of speach. i have not read the opinion, but my guess is that an individual could buy a billboard (tv time maybe? i dunno - its complicated) as an endorsement of a candidate.

i just don't buy the argument. (pun intended)
posted by bluno at 11:32 AM on December 10, 2003

The campaign finance reform law contains a prohibition against political advertisements by special interest groups in the weeks just before an election. It amazes me on how people in here can't see that this is an outrageous restriction of political speech. The proponents of this law are generally the same crowd that is screaming about John Ashcroft subpoenaing library records. You guys should be on Scalia's side here, but for reasons that I can't fathom, the left in this case apparently thinks government restriction of political activity is perfectly acceptable.
posted by Durwood at 11:33 AM on December 10, 2003

durwood - are individuals similarly restricted? or a group of individuals? i dunno.
posted by bluno at 11:37 AM on December 10, 2003

"One person, one vote" is a "much maligned" principle? Really? REALLY? By who?
posted by monju_bosatsu at 11:38 AM on December 10, 2003

What Durwood said.


It is amazing that the side which has been screaming about Ashcroft for three years now trying to limit people's liberty and privacy, now think restricting this liberty is a good thing.

So let me get this straight: no restriction on drug use, no governmental restriction on pornography, no restriction on the right to protest, no restrictions on civil liberty, but Yes to restricting political speech?

I am dumbfounded....


Maybe this is just a manifestation of the incompatability of unfettered liberty and the other "principle" of the Left: enforced equality.....
posted by Seth at 11:45 AM on December 10, 2003

Seth: In fact, none of the 14th amendment jurisprudence is self-evident from the language of the Constitution. It's almost impossible to read that amendment and divine any specific legal rules at all from its text. Yet, clearly, the framers of that amendment intended it to have some legal effect. So its rather odd to say that the principles that the Court has derived from it are merely "judge made law" and therefore not entitled to the same respect that would be given to a more clearly-written provision, like the first amendment. Baker v. Carr is interpreting the constitution just as much as Buckley v. Valeo or New York Times v. Sullivan does.

I do agree though that, as a legal matter, "one person one vote" is probably not the best way to conceptualize the legal principle at stake here. I was just pointing out that it makes no sense to try to distinguish "real" constitutional law from "judge made" constitutional law. Its all the same thing. So to credibly argue about the legal merits of this case, you have to argue from precedent, not just the broad principles that you believe the first amendment ought to embody.

Also, if I read your position correctly, I don't see how you can get around the problem that the very power of judicial review itself cannot be found anywhere in the text of the Constitution. Without Marbury v. Madison (perhaps the most famous example of "judicial activism" in history), the Supreme Court wouldn't even have the power to decide this case at all. Surely the Court cannot override the explicit wishes of Congress without some Constitutional grant of power to do so?
posted by boltman at 11:46 AM on December 10, 2003

monju:
The opinions which articulated that principle has been heavily critcized as an unprincipled decision. It isn't that critics have said "no, the principle is wrong in the abstract." But many critics have criticized the Warren Court's imposition of the doctrine upon the States when the principle itself conflicts with the text of the Constitution. The argument being that, there is no such principle in the Constitution, but states should be free to adopt it or reject it if they choose to. That is, states should have the right to choose to have a senate apporitioned in a manner similar to the federal Senate if they choose.

If you want names of who has criticized it:
Alexander Bickel
John Hart Ely
Henry Jaffe
Herbert Wechsler
Robert Bork

Those are 5 in which I have read the criticisms. That doesn't include the dissenting opinions of the judges in that case and the voluminous coverage in the law reviews at the time which decried the latest Warren Court creation.
posted by Seth at 11:50 AM on December 10, 2003

boltman,

I am fully aware of what you are arguing vis a vis constitutional interpretation.

My point, above, is that if you can't point to a specific constitutional principle, then the Court is on thin ice. I do no consider it "judge-made law" when the Court interprets a word to mean something when the definintion itself can be reasonably attached to the word.

Thus, I can see where freedom of speech can include spending money to express ones political views. The words can bear that interpretation.

However, the words of the Constitution cannot bear the interpretation of "one man, one vote." It is completely judge-made. In fact, the words of the consitution EXPLICITLY contradict such a definition. There is no way such a principle can exist when the Constitution already proscribes the method of the Senate which is explicitly NOT one person, one vote (that is, it isn't apportioned based on population).

Under our Senate (and our electoral college), a state like Wyoming is grossly OVER-represted.

So the principle cannot possibly exist in the constitution.

Hence, it is completely judge-made.
posted by Seth at 11:56 AM on December 10, 2003

The campaign finance reform law contains a prohibition against political advertisements by special interest groups in the weeks just before an election. It amazes me on how people in here can't see that this is an outrageous restriction of political speech.

I agree that that portion of the bill is alarming, and I have not idea how it is constitutional (actually, I do, but I don't like the reason: because the Court says it's a restriction of free speech that is OK because of public interest). It is bothersome that so many refuse to distinguish between the two seperate parts of the bill: campaign donation reform and censoring of impartial issues-related advertisements. You can have one without the other, and that's why this bill is dangerous.

Monju-
Do you know if this decision means that George Soros' upcoming Bush-creaming ad campaign will not be able to mention Bush by name?

Where I live, it will mostly help to rein in the right-wing anti-tax nutjobs who have set up a sort of alternative anti-government in Oregon. No skin off my back there, but he idea that people are now prohibited from certain forms of speech that criticize the government is abhorrent--and the last thing this country needs now.

I can't find a link, but NPR was just interviewing an ACLU attorney who said that this ruling means that they will not be able to run an ad campaign against the PATRIOT ACT during election season. Campaign finance "reform" is a lot like welfare "reform."
posted by Ignatius J. Reilly at 11:57 AM on December 10, 2003

Seth, I don't believe that a person's right to view pornography or to use drugs are equivalent to a person's right to engage in political activity or speech under our Constitution. I don't pretend to be a Libertarian, but I don't particularly want the government telling me or any other person, group, union or corporation when they can or cannot run advertisements for political candidates, or how much money can be spent supporting candidates. The Supreme Court has, in effect, held that the government no longer needs to present compelling reasons to place restrictions on political speech.
posted by Durwood at 12:01 PM on December 10, 2003

Maybe this is just a manifestation of the incompatability of unfettered liberty and the other "principle" of the Left: enforced equality.....

As long as we're going to interpret the text of the Constitution strictly, which I gather you would be wont to do, let's look at Section 1 of the Fourteenth Amendment.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

You'll notice that liberty, which you seem to protecting so dearly at the expense of equality, is part of and protected by the due process clause. Your own champion, Justice Scalia, suggests that any substantive due process is an oxymoron. Instead the Amendment means exactly what it says: no state shall deprive any person of liberty without due process of law. The Justice has made clear, as in the death penalty debates, that as long as due process is provided, any liberty might be abridged. Liberty, then, is a qualified right, not an absolute one.

On the other hand, let's take a peek at the equal protection clause. To contrast it with the due process clause, you'll notice that no state may deny to any person within its jurisdiction the equal protection of the laws. There is no qualifier in this clause. There is no provision that allows states to deny equal protection if sufficient process is given. Equal protection is an unqualified right, an absolute Constitutional good.

You may find the placement of equality above liberty repugnant, but your own methods of Constitutional interpretation inevitably lead us there. Do you still want to disallow judicial interpretation?

However, the words of the Constitution cannot bear the interpretation of "one man, one vote." It is completely judge-made. In fact, the words of the consitution EXPLICITLY contradict such a definition. There is no way such a principle can exist when the Constitution already proscribes the method of the Senate which is explicitly NOT one person, one vote (that is, it isn't apportioned based on population).

You're conflating the requirements of Article I and the Fourteenth Amendment. Certainly Article I allows, and in fact requires, the Senate to be apportioned by state, rather than by population. I'm sure you're aware of the historical basis of this compromise, with smaller states concerned they would have no voice in the legislature. The Fourteenth Amendment, on the other hand, was ratified more than a half century later, and applies only to the states and not to Congress. The Civil War and the behavior of the southern states in suppressing black suffrage clearly lead the drafters and ratifiers of the Fourteenth Amendment to conclude that the states, at least in the south, could not be trusted to protect the right to vote on their own. Equal representation is a natural and rational interpretation of the Equal protection clause, and in fact follows easily from the text.

No provision of the Constitution requires that Congress and the states be judged by the same standard, and political reality demonstrates that it would be nonsensical to do so.
posted by monju_bosatsu at 12:07 PM on December 10, 2003

namespan:

How about no disclosue? Completely anonymous donations. Support a candidate all you want, but if he/she finds out you're the donor, you lose the funds and perhaps incur other penalties.

Very interesting idea. My brother, who is a politcal science PhD candidate thought this was one of the most interesting proposed reforms. In theory it severs the link between donations and influence, so the more palatable link between idealogy of donor and recipient is what remains.

The counterargument to this is usually that it would be relatively easy for the system to link. No need to directly say "I was the one who donated this amount." Just an "understanding" reached between two gentlemen, perhaps.

Still... it might be a useful tool in combination with other potential reforms. For one thing, it *would* make it difficult for someone unconnected to an elected official to gain access solely by virtue of writing a check -- ie, in order to gain the implicit "understanding" I mentioned above, you already have to be conversing or otherwise connected. For another, there simply couldn't be any organized effort to keep track of donations -- were you to keep such records, you'd be hosed under the law if they were found. So while you might recall an understanding reached with a few individuals, after a bit, details might well begin to escape you as they merge into constituent donation soup....
posted by weston at 12:10 PM on December 10, 2003

Durwood,

I know. I wasn't trying to equivocate. I was merely pointing out how odd it is for people, who supported unfettered liberty, to be happy with this opinion.

I think you and I are coming at this issue from the exact same mindset.

I have an enormous amount of legal and philosophical problems with this opinion.
posted by Seth at 12:14 PM on December 10, 2003

Is this header linked to the right article? I did a "find" for Scalia and another for "bribery" and neither word was in the article.
posted by ilsa at 12:14 PM on December 10, 2003

seth: You take things to such preposterous extremes, that it is impossible to take you seriously.

Pot. Kettle. Blackness.
posted by bshort at 12:15 PM on December 10, 2003

Seth: You make alot of very valid and interesting points. I also think full disclosure is a good policy to pursue, but I worry about loopholes and backroom dealing would easily subvert such an idea.

I think the issue revolves around wether we want government or the free market to restrict political advocacy, either way someone is going to get left out on some level. The current state of affairs definitely favors those with money, lots and lots of money, but consistently ignores populist voices. If wealthy donors can afford to advertise for a candidate they can also use their financial influence to make sure populist advocates cannot. That, I think, is what is at issue.

Say we have a PAC that wants to ban the color blue. Say they have unlimited financial resources. Wouldn't the blitzkrieg of marketing they would unleash on the population drown out opposition? There needs to be a check and balance in every branch of government so where is the check and balance for financial power?
posted by elwoodwiles at 12:36 PM on December 10, 2003

The problem with elections is that they don't come fast enough. With Arnold in charge out here we have to wait until the next election to get rid of him for the moron he is. And in the interim he can cause more and more damage to the state's economy by his ham handed policies and attempts to shore up the losses.

And no, I don't have a solution but I can see the problem.

When a crook gets elected the only way to remove him is impeachment, a recall or waiting. All options suck.
posted by fenriq at 12:38 PM on December 10, 2003

nofundy,
You take things to such preposterous extremes, that it is impossible to take you seriously.

In response I simply repeat my earlier statement:
Gee, Seth this wing nut trolling is kinda fun! Thanks for the style guide!

Smooch!
posted by nofundy at 12:48 PM on December 10, 2003

He received the highest rating of competency from the ABA and the FBI.

like nofundy said - unfit for dogcatcher. the ABA - an association of rapacious litigators whose ethical and moral loyalty are available for open purchase by clientele. the FBI - the largest legal blackmail operation ever conceived, operated by a pervert and theif who padded his lifestyle with taxpayer dollars while creating the biggest, most successful propoganda lie ever swallowed whole by the american public - the "history" of the FBI. Seth - go away. you are atrociously ill-equipped to debate these matters with anyone here, you are drowning in the kool-aid.
posted by quonsar at 1:33 PM on December 10, 2003

I think that the most interesting idea in this thread is that of no disclosure, as proposed by namespan. It seems to perfectly meet everyone's concerns. You, the contributor, get to freely "speak" by donating your money as you wish. There's no buying of favors, since the candidates can't know who contributed.

It is interesting, really, that noone has directly addressed the question of whether or not contributions actually do buy influence. If money doesn't buy influence, then why would a company spend it on a candidate? The very existence of corporate political contributions is evidence that influence is obtained, otherwise it is literally wasted money, which is irresponsible to shareholders.

It would be interesting to see if a "no disclosure" policy would reduce corporate contributions. My bet is a definite yes.
posted by yesster at 1:33 PM on December 10, 2003

Not all of us lefties believe that restricting political speech is good, just as some of us lefties believe that the Second Amendment means that there should be few restrictions on firearms.

Bush outspent Gore by a large margin in 2000, yet Gore won the popular vote. So the side with more money isn't always guaranteed victory (although their chances increase if they own the right judges).

I don't believe that any government agency has a right to limit how my contributions to, say, Moveon.org are used. No one should limit what is expressed or when it is expressed.

Political speech should be inviolable, regardless of whether the speech is on behalf of the rich or the poor, the conservative or the liberal. I'm willing to let the NRA and the Bush re-election campaign and the RNC collect and spend however much they like to express their views, as long as I am given the same opportunities.

We liberals should organize and find better ways to raise money, instead of whining about how the other side spends more money putting out its message. As the progressive saying goes: "Early to bed, early to rise, work like hell and organize."
posted by Holden at 1:34 PM on December 10, 2003

The problem isn't that corporations/unions/interest groups are trying to buy public officials-- the problem is that public officials have the power to deliver the goods. We have FDR and his court to thank for a lot of this.
posted by trharlan at 1:56 PM on December 10, 2003

and before FDR, the corporations/unions/interest groups simply TOOK the goods. ah. the good old days.
posted by quonsar at 2:06 PM on December 10, 2003

Antonin Scalia... not fit for a dog catcher? How on earth do you expect anyone to take you seriously



no, Clarence Thomas is the unfit-for-dog-catcher guy

Scalia is the fit-for-a-nice-conflict-of-interest-investigation one

oh, wait, Thomas should be investigated, too

oh, and I mean "investigated" as in "not by John Ashcroft" investigated
heh.

Seth - go away
no fucking way. I'm all against censorship -- not to mention that Seth's way too funny
posted by matteo at 2:16 PM on December 10, 2003

No disclosure would be attractive if you could police it. But it strikes me as impossible to police. What's to stop the corporation from depositing a big anonymous donation, and then calling up the Senator and saying, "you know, we think you're a great friend to our industry and we just want you to know that we support your campaign 100%" (wink wink).

Also, just think of all the people in the corporation that would be in the know about who made a contribution to who, and imagine the difficulty of getting them all to keep quiet. It may even raise first amendment problems, if an uninterested party (say a former employee or a client) winds up making the contribution public and the gov't tries to punish them for it.
posted by boltman at 2:46 PM on December 10, 2003

It might be possible to encourage, but not ensure, anonymity through some kind of escrow system. For example, Vote Inc could donate $100,000,000 to this Bribery Escrow Agency, with instructions as to its disbursement among those politicians who may be favorable to its interests.

So nothing would stop the CEO of Vote Inc from telling Jed Republican that $10,000,000 of the $10,000,050 he received that month was from Vote Inc; but there is no actual proof of that. Vote Inc could show him a deposit slip, but it could very easily have gotten its Internal Forgery Department to whip one up.

The keys to this are: the BEA has to "munge" the money together, and issue it every so often (eg monthly); donors to the BEA have to receive no confirmation or acknowledgement from the BEA of their donation; and the BEA has to have the power to split up odd amounts that may constitute a coded message, eg Fred CEO says "Jed, if you accept my company's bid, I'm gonna send you a piece of pie through the BEA" and look, Jed gets $31415.93 the next month.
posted by aeschenkarnos at 5:04 PM on December 10, 2003

I think the "no disclosure" option is even more problematic as far as the First Amendment is concerned.
posted by trharlan at 5:22 PM on December 10, 2003

On another point, people are unequal. Therefore their contributions to the political process, be it money, persuasive argument, a network of cultists whose votes can be guaranteed, or influence over the voting mechanism by virtue of position (eg Supreme Court Judge) or involvement in the process (eg Diebold system administrator), are also unequal. The pursuit of equality in political influence seems futile and destructive.

The idea of one vote per "voting citizen" is an ideological presumption. Not that it's necessarily a wrong presumption; just that it has to be presumed, it isn't obvious. All democracies have had rules for who are voters and who are not: divisors have included age, citizenship by birth or fiat, geographical location, ethnicity, religion, gender, social class, wealth, etc.

Rules also exist to regulate the exercise of the voting privilege: some democracies have purely optional voting, others require a quorum of voters, others punish voters who did not vote, others reward voters who do vote.

The current US approach to voter selection and privilege exercise is just one of a wide range of possibilities. It can be changed, if enough of you have the will to do so.

One possibility is statistical voting: one in every x (x depends on the size of the jurisdiction; for US president x could be 10,000, for local dogcatcher x could be 10) voters is randomly selected to vote. If they can be found, that person must vote (noting that voting informally is an option, if the person had some reason to not want to vote). Because there are so few of them, it can be made very easy for them, eg electoral agents could visit each selected voter personally. The agency would announce only the results of the vote. Who voted is known only to the agency, to voters themselves, and to whoever they choose to tell about it. The actual vote itself could be done by computer, issuing the voter with a paper receipt and the agency keeping a copy of that receipt on file.
posted by aeschenkarnos at 5:27 PM on December 10, 2003

aeschenkarnos, that's interesting. Both weston and boltman did a good job of going over problems with the no disclosure idea, but I think your solution has more potential than weston's suggestions.

I just thought of something else, though: it also seems like it'd be an irresistable target for fraud/embezzlement. Jed Republican gives to Senator G.O. Peterson, Joe Bureaucrat funnels half into his swiss account. Even if Jed had some reason to suspect this, how would he report the problem?

Tough call. I wonder if these problems could be solved by modern crypto, with which I understand you can do all sorts of weird stuff.
posted by namespan at 5:31 PM on December 10, 2003

(Oh, and yesster... thanks for noticing my comment too!)
posted by namespan at 8:27 PM on December 10, 2003

It is interesting, really, that noone has directly addressed the question of whether or not contributions actually do buy influence. If money doesn't buy influence, then why would a company spend it on a candidate? The very existence of corporate political contributions is evidence that influence is obtained, otherwise it is literally wasted money, which is irresponsible to shareholders.

Well, not necessarily. If I own for Guns 'n' Bullets R Us, I might reasonably decide that it's in my best interests to donate to a fervently anti-gun-control senator even if that senator will never know that I was the one doing the donating and even if I have no expectation of special favors — I can still be confident that his pre-existing political goals coincide with my interests. I would have no problem justifying this to my shareholders.
posted by IshmaelGraves at 5:56 AM on December 11, 2003

One possibility is statistical voting: one in every x (x depends on the size of the jurisdiction; for US president x could be 10,000, for local dogcatcher x could be 10) voters is randomly selected to vote. If they can be found, that person must vote (noting that voting informally is an option, if the person had some reason to not want to vote).

While technically feasible, and if the statistical sampling is done well, possibly an accurate reflection of voter sentiment, this proposal is politically absurd. You would be denying the right to vote to the vast majority of the electorate.

Imagine also the possiblity of corruption. If the random selection mechanism is skewed just a bit, it might have a selective preference for one party over another, or one geographic locale over another, or one race over another. I think the far better solution is preference voting with instant runoffs and transparent audit trails.
posted by monju_bosatsu at 6:24 AM on December 11, 2003

One possibility is statistical voting

How about a different methodology? Instead of randomly selecting some voters who have to vote, why not let everyone who wants to vote do it and then randomly select an appropriate number of ballots to be counted?
posted by billsaysthis at 11:47 AM on December 11, 2003