Supreme Court Campaign Finance Opinion Issued
April 2, 2014 11:26 AM Subscribe

Today, the Supreme Court issued its 5-4 opinion in McCutcheon v FEC.

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government's efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.” Buckley, 424 U. S., at 14. The judgment of the District Court is reversed, and the case is remanded for further proceedings. It is so ordered.

The Supreme Court strikes down provisions of the Bipartisan Campaign Reform Act of 2002 ("BCRA") as an unjustified intrusion on First Amendment rights. The link also includes the concurrence of Justice Thomas and a dissent by Justice Breyer.

Here is the opinion the Supreme Court was reviewing.

Here is the transcript of the oral arguments.

Here is the primary opinion that the Court was grappling with as precedent, Buckley v. Valeo.

If you do not wish to read the opinion yourself and reach your own informed conclusions, here is an analysis from Lyle Denniston at SCOTUSblog.

posted by dios (251 comments total) 26 users marked this as a favorite

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posted by saulgoodman at 11:31 AM on April 2, 2014 [13 favorites]

This makes me cry in frustration. Why is this going on unchecked in this country? What can the people do?
posted by Riton at 11:32 AM on April 2, 2014 [5 favorites]

Riton: “This makes me cry in frustration. Why is this going on unchecked in this country? What can the people do?”

Well, that's obvious, right?
posted by koeselitz at 11:33 AM on April 2, 2014 [1 favorite]

Depends: how much money do the people have?
posted by 2bucksplus at 11:33 AM on April 2, 2014 [46 favorites]

The max I can give to a candidate is $2600. Prior to this decision, there was an "aggregate cap" of $48,600 for contributions to candidates. In other words, I was limited to contributing the max to ~18 candidates. Plaintiff wanted to give the max to 28 candidates and sued to strike the "aggregate cap."
posted by jpe at 11:34 AM on April 2, 2014 [4 favorites]

This makes me cry in frustration. Why is this going on unchecked in this country? What can the people do?

Amend the Constitution to limit freedom of speech?
posted by Jahaza at 11:34 AM on April 2, 2014 [10 favorites]

Why is this going on unchecked in this country?

Because we determined that we value political expression so much we passed the First Amendment to the Constitution to protect it.

What can the people do?

Repeal the First Amendment.
posted by dios at 11:35 AM on April 2, 2014 [8 favorites]

I'll just say it so I don't get arrested for sedition before the Great Purges of 2017.

Hail, Future King President. I pledge thee my allegiance.

Is it just me or did future elections just take on the legitimacy of professional wrestling?
posted by phoebus at 11:35 AM on April 2, 2014

Owwwwwwwww Scotus let's make it rain on these congress critters!
posted by srboisvert at 11:36 AM on April 2, 2014 [1 favorite]

What can the people do?

Public financing.
posted by mr_roboto at 11:36 AM on April 2, 2014 [13 favorites]

Riton: “What can the people do?”

dios: “Repeal the First Amendment.”

Pardon me, I'll just be over here rolling my eyes. Sheesh. I mean, I don't even really have a position here, but clearly repealing the First Amendment is a nonsensical suggestion. Not a single one of the original ten amendments in the Bill of Rights has been "repealed;" it's unprecedented, and furthermore unnecessary, unless you believe that it would be literally impossible to write an amendment that restricted campaign contributions without restricting any other kind of speech. And honestly if you believe that you probably have fairly sizeable cognitive difficulties and shouldn't be discussing this issue.
posted by koeselitz at 11:37 AM on April 2, 2014 [108 favorites]

Where in the constitution does it say that money is not only a form of speech, but is so synonymous with it that it can't be regulated at all?
posted by Green With You at 11:38 AM on April 2, 2014 [99 favorites]

I've been following Lessig's work on #rootstrikers since he started it, which is a big push for public financing. This case came up in the last few weeks as questions to him and it sounds like the way it went today, Lessig's nightmare scenario is coming true. Instead of most all political races being decided by about 48,000 people in the 1% of top income earners in this country that finance elections, it looks like this will skew it further to where he estimates about 10,000 well-off people will decide most races based on their financing ("Lesterland to Sheldon City").

I hope we someday get public financing of elections, but then I also hope we someday get single payer health insurance but I don't think either is going to happen in my lifetime.
posted by mathowie at 11:41 AM on April 2, 2014 [41 favorites]

unless you believe that it would be literally impossible to write an amendment that restricted campaign contributions without restricting any other kind of speech.

Fair enough. You could pass a subsequent constitutional amendment that effectively amends the First Amendment. But my point was simply you have to amend the constitution one way or the other because it is a constitutional principle.

And it would be great if you could discuss without making unnecessary personal insults like at the end of your comment. All you do is poison the discussion here with stuff like that.
posted by dios at 11:41 AM on April 2, 2014 [7 favorites]

If money is speech then where's my free money?
posted by ckape at 11:41 AM on April 2, 2014 [32 favorites]

Where in the constitution does it say that money is not only a form of speech, but is so synonymous with it that it can't be regulated at all?

Money can't yell fire in a crowded theater, it can only be used to pay someone to yell fire in a crowded theater.
posted by Brandon Blatcher at 11:42 AM on April 2, 2014 [12 favorites]

Next up, classifying taxes as a violation of the First Amendment! Wooo!
posted by aramaic at 11:42 AM on April 2, 2014 [25 favorites]

"Repeal the First Amendment" is a glib soundbite, not an actual rebuttal. The Roberts Court has made it explicit that money is perfectly acceptable for giving certain people (i.e., the rich) more freedom of speech than the average citizen:

The Supreme Court’s Ideology: More Money, Less Voting

In the past four years, under the leadership of Chief Justice John Roberts, the Supreme Court has made it far easier to buy an election and far harder to vote in one.

First came the Court’s 2010 decision in Citizens United v. FEC, which brought us the Super PAC era.

Then came the Court’s 2013 decision in Shelby County v. Holder, which gutted the centerpiece of the Voting Rights Act.

Now we have McCutcheon v. FEC, where the Court, in yet another controversial 5-4 opinion written by Roberts, struck down the limits on how much an individual can contribute to candidates, parties and political action committees. So instead of an individual donor being allowed to give $117,000 to campaigns, parties and PACs in an election cycle (the aggregate limit in 2012), they can now give up to $3.5 million, Andy Kroll of Mother Jones reports.

The Court’s conservative majority believes that the First Amendment gives wealthy donors and powerful corporations the carte blanche right to buy an election but that the Fifteenth Amendment does not give Americans the right to vote free of racial discrimination.

These are not unrelated issues—the same people, like the Koch brothers, who favor unlimited secret money in US elections are the ones funding the effort to make it harder for people to vote. The net effect is an attempt to concentrate the power of the top 1 percent in the political process and to drown out the voices and votes of everyone else.

posted by zombieflanders at 11:42 AM on April 2, 2014 [64 favorites]

Where in the constitution does it say....

In Buckley. And this case. Just like how reproductive freedom is in Roe and a right to gay marriage is in Windsor (sort of.....)
posted by jpe at 11:42 AM on April 2, 2014

Once again, the court has decided Worthington's Law is the law of the land.

More money == better than.
posted by fifteen schnitzengruben is my limit at 11:42 AM on April 2, 2014 [7 favorites]

Au revoir, America. it was nice knowing you.
posted by marienbad at 11:43 AM on April 2, 2014 [2 favorites]

The march of Banana Republican-ism continues apace.
posted by feloniousmonk at 11:45 AM on April 2, 2014

dios: “Fair enough. You could pass a subsequent constitutional amendment that effectively amends the First Amendment. But my point was simply you have to amend the constitution one way or the other because it is a constitutional principle.”

That's not what you said, though. And frankly I wish amending the Constitution were seen more often as a viable and often necessary alternative. Your comment had the opposite effect: making it seem like a wild option that breaks the Constitution as we know it.

“And it would be great if you could discuss without making unnecessary personal insults like at the end of your comment. All you do is poison the discussion here with stuff like that.”

I didn't insult you. And if anything is going to "poison the discussion," it's wild suggestions that people who don't like this decision must either put up and shut up or utterly annihilate the Constitutional protection of freedom of speech. That's a few inches away from saying that "people who don't like this decision hate freedom."

It'd be nice to discuss this without such implications.
posted by koeselitz at 11:45 AM on April 2, 2014 [56 favorites]

Where in the constitution does it say that money is not only a form of speech, but is so synonymous with it that it can't be regulated at all?
posted by Green With You at 1:38 PM on April 2

There are two links to Supreme Court opinions that answer the question you are asking and would help you better understand the issue. Contributions are protected First Amendment actions, but as with all First Amendment protections, they can only be regulated if a precise legal test is met. The majority did not say "it can't be regulated at all." What it said was this regulation did not pass constitutional muster based upon the established tests. I will note that the 4 dissenting justices did agreed (or at least conceded) that contributions were protected First Amendment expression. The dissent instead focused on the reasonableness of the restriction using the standards for restrictions on constitutionally protected political expression.
posted by dios at 11:46 AM on April 2, 2014 [1 favorite]

Money is speech. That's why bribery is legal!
posted by spaltavian at 11:46 AM on April 2, 2014 [16 favorites]

Supreme Court’s abomination: How McCutcheon decision will destroy American politics: "If the only way to avoid plutocracy would be to employ political processes that the plutocrats themselves will eventually buy lock, stock and barrel, then the only way to avoid being ruled by the Lords of Capital is to become one of them. This, in effect, is the contemporary GOP’s economic creed in a nutshell."
posted by scody at 11:48 AM on April 2, 2014 [14 favorites]

That's why bribery is legal!

Well, it is NOW.
posted by 1970s Antihero at 11:48 AM on April 2, 2014 [3 favorites]

If speech and money are interchangeable, can I pay my taxes in soliloquies?
posted by 0xFCAF at 11:49 AM on April 2, 2014 [56 favorites]

My daughter Veruca is going to be overjoyed. She's been insistent that I buy her a congressman before the day is out.
posted by DirtyOldTown at 11:51 AM on April 2, 2014 [32 favorites]

Money doesn't talk, it swears.
posted by entropicamericana at 11:52 AM on April 2, 2014 [1 favorite]

Was there ever any doubt? The Roberts Court is for sale to the highest bidder. There's a bought and paid for majority on the Court, of course they wouldn't see bribery when their own votes were sold long ago.
posted by T.D. Strange at 11:53 AM on April 2, 2014 [3 favorites]

unless you believe that it would be literally impossible to write an amendment that restricted campaign contributions without restricting any other kind of speech

Sure, you could write a constitutional amendment that limited formal campaign contributions and nothing else.

That probably wouldn't have much of an effect on elections, though. The best you can do without outright abolishing the first amendment is displace electoral activity from direct donations to advocacy or indirect activity in support of candidates or causes (ie, what superpacs do). Otherwise, people and groups will advocate in favor of candidates and causes that they like, and obviously rich people and organizations are better able to advocate than poor ones.

While Citizens United is certainly unpopular, it's important to remember that what the FEC was trying to do then (under the BCRA) was declare that it was illegal to release a (crazy, bad, silly) documentary critical of Hillary Clinton because it was too close to an election. The first-amendment implications of campaign finance laws aren't some crazy right-wing-plutocrat thing; they're very real.
posted by ROU_Xenophobe at 11:53 AM on April 2, 2014 [8 favorites]

Scotus is actually short for scrotums. Five out of six of the men voted for the majority, all three women voted against.
posted by dances_with_sneetches at 11:54 AM on April 2, 2014

So now that you can quantify how much free speech a person has, we should probably redistribute all of those speech units so that everyone's equally free, I guess.
posted by jason_steakums at 11:55 AM on April 2, 2014 [48 favorites]

The Roberts Court has made it explicit that money is perfectly acceptable for giving certain people (i.e., the rich) more freedom of speech than the average citizen

So what's the remedy? Not allowing anyone to have more effective political expression than another person? So we take away the microphone from political talk show hosts because they "give certain people more freedom of speech than the average citizen"? Or people who are really persuasive should be limited because they give more freedom of speech than the average of citizen? What about unions? A union has much more effective political effect when they speak then my 4 person law firm. Should the union not be permitted to engage politically?

Complaining about the effectiveness of how someone politically expresses themselves says nothing about the reasonableness of the restriction of the mode of expression.

That's a few inches away from saying that "people who don't like this decision hate freedom."

I didn't say that. You jumped down my throat from an implication I never said. Yet there are a lot of people here who are explicitly making ridiculously hyperbolic claims like "banana republic" and "annihilation of democracy" without even understanding the legal threads of this issue back to Buckley or the history of campaign funding. I don't see you jumping down their throats. No, instead you disagreed with a comment I made--which is not incorrect--and went straight for the insults right off the bath. That's not right.
posted by dios at 11:56 AM on April 2, 2014 [2 favorites]

From the opinion:

[Congress] may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.
posted by Riton at 11:57 AM on April 2, 2014

In 2012, 35% of all the money donated to state supreme court races came from 10 donors. Ten donors. 44% of all money spent in state supreme court races came from out-of-state. (Stats come from my notes of this report)

In 2009, the US Supreme Court in Caperton v. Massey Coal essentially believed that Massey Coal paid for the election of a lawyer named Benjamin to the West Virginia Supreme Court because Massey Coal did not believe it would win its pending appeal with the court as it was comprised prior to the election. The Massey Coal-funded campaign allowed candidate Benjamin to defeat the incumbent justice. Massey Coal won its appeal, after Benjamin was seated and refused to recuse himself from the case. SCOTUS found that Benjamin's participation in the case was a violation of the Due Process clause of the US, despite no finding of actual bias in his judgment in the case because "a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent" (This is all from memory, except the quote which is just a quote from the deicsion I have on my work desktop for reference)

With the McCutcheon decision, it's now going to be much more difficult to see when this is happening and it's going to happen ever more often.
posted by crush-onastick at 11:57 AM on April 2, 2014 [23 favorites]

My daughter Veruca is going to be overjoyed. She's been insistent that I buy her a congressman before the day is out.
Buy her a Republican. Anyone can afford a Democrat.
posted by dances_with_sneetches at 11:57 AM on April 2, 2014 [14 favorites]

The first-amendment implications of campaign finance laws aren't some crazy right-wing-plutocrat thing; they're very real.

This is very true. The ACLU has historically opposed campaign finance regulations as violative of the First Amendment, as have people like Bill Bradley, who isn't a "crazy right-wing plutocrat".
posted by dios at 11:59 AM on April 2, 2014 [6 favorites]

The bigger problem, to me, than plutocrats buying elections is that with this much leeway, nothing about the system will be able to change in the people's favor through normal democratic channels. Our system is designed to prevent political violence, because change is possible through rational deliberation and our electoral politics. If the system can no longer produce necessary change that benefits and protects people from the wild excesses of the super-wealthy, they will force us to use other means, and then use those means as evidence that democracy doesn't work, further curtailing civil rights and democracy. They will ossify systemic and formalized injustice to their own advantage, indifferent to the very ample historical evidence about what happens when you do that, and they will still have the gall to act surprised and outraged when we knock in their front doors.
posted by clockzero at 12:01 PM on April 2, 2014 [28 favorites]

I dunno. It seems to me that campaign finance laws were always a game of whack-a-mole anyway - Close off one method, and another one will open up.

The problem isn't so much that money equals speech - the problem is that we the people have so little of it in comparison.
posted by Pogo_Fuzzybutt at 12:02 PM on April 2, 2014 [5 favorites]

Following the Bush appointments, the court has consistently upheld the idea that money is unequivocally a form of speech.

Buckley v. Valeo is from 1976. Long before Bush. This has nothing to do with Bush.
posted by dios at 12:03 PM on April 2, 2014 [5 favorites]

Complaining about the effectiveness of how someone politically expresses themselves says nothing about the reasonableness of the restriction of the mode of expression.

And what I'm saying is that the Roberts Court has no problem allowing one form of political expression and free speech (voting) to be restricted amongst the proles, while they suddenly get hot and bothered when someone tries to do the same for our benevolent economic leaders.
posted by zombieflanders at 12:04 PM on April 2, 2014 [8 favorites]

Reading Alito and Scalia's contributions to Supreme Court arguments never fails to remind me that the Roberts Court is a sad, sad joke. All the obfuscation and misdirection and false outrage.

A fine selection, from p. 49-50 of the oral argument transcript:

GENERAL VERRILLI: So, again, I apologize for repeating myself, Justice Alito, but circumvention is not the only problem. The delivery of the -- the solicitation and receipt of these very large checks is a problem, a direct corruption problem, and none of the alternatives that the Appellant's have identified address that problem.

JUSTICE ALITO: I just don't understand that. You mean at the time when the person sends the money to this hypothetical joint fundraising committee there is a corruption problem immediately, even though -- what if they just took the money and they burned it? That would be a corruption problem there?

Yes! That is an idea that was definitely worth bringing up, because it could totally happen in real life. Far from any possibility of feeling remotely indebted to their top-dollar donors, or confirming that they will indeed introduce and vote for specific pieces of donor-friendly legislation as a token of gratitude for all that cash, at least a few of the candidates who will be receiving these outrageous sums are probably going to go ahead and burn it all, and... well, yeah, that about wraps it up. Move along, nothing to see here!

NB Alito is the same dude who had just accused Gen. Verrilli of using "wild hypotheticals that are not obviously plausible" to advance the Appellee's argument. The mind reels.
posted by divined by radio at 12:05 PM on April 2, 2014 [41 favorites]

The only solution is to constitutionally eliminate campaign financing. Completely ban it. All funding for registered parties has to come from the government, and no private contributions allowed at all.
posted by graymouser at 12:08 PM on April 2, 2014 [19 favorites]

While Citizens United is certainly unpopular, it's important to remember that what the FEC was trying to do then (under the BCRA) was declare that it was illegal to release a (crazy, bad, silly) documentary critical of Hillary Clinton because it was too close to an election. The first-amendment implications of campaign finance laws aren't some crazy right-wing-plutocrat thing; they're very real.

Amen. There is a real free-speech hazard to restricting political advocacy spending.

There are other ways to reform the role of money in politics. Public financing of campaigns is one. Strict enforcement of election law is another: require a rigorous separation between campaign spending, elected officials' staff and operating budgets, and politicians' personal finances. And audit the shit out of these.

Here's an idea that I haven't seen floated... What if all campaign donations were required to be anonymous? Donors could contribute to whichever politicians they view as supporting their interests, but politicians could not know who had donated to them. Revealing a donation would be probable cause for a bribery investigation...
posted by mr_roboto at 12:08 PM on April 2, 2014 [16 favorites]

All funding for registered parties has to come from the government, and no private contributions allowed at all.

Under this regime would I, as an individual, be allowed to purchase a television commercial advocating a political candidate? If so, you're solution is circumvented. If not, you have serious free speech problems.
posted by mr_roboto at 12:10 PM on April 2, 2014 [1 favorite]

Dios, thanks for the factual and informative comments. It's true that there's is a large part of knee-jerk reaction when seeing something like this. I'm reading through the documents and not a specialist of this.

However, there is definite data that money in American politics is seen unfavorably by the majority of people. It also most definitely at the least casts the shadow of the doubt on whether decisions are somehow "financially influenced".

That is the problem - and it's very clear that the First Amendment limits the leeway in what can be done to overcome this problem.

Also, it is to be noted that the vast majority of functioning democracies do not have this problem, or at least to a much lesser extent, without materially limiting political expression.
posted by Riton at 12:10 PM on April 2, 2014

I dunno. It seems to me that campaign finance laws were always a game of whack-a-mole anyway - Close off one method, and another one will open up.

Couldn't people already use Super PACs to get around this? I mean, you can't donate "directly" (wink-wink) but if you're swiftboating some left-wing pinko, you're pretty much accomplishing the same end on behalf of your candidate, right?
posted by Blazecock Pileon at 12:10 PM on April 2, 2014

dios: “So what's the remedy? Not allowing anyone to have more effective political expression than another person? So we take away the microphone from political talk show hosts because they "give certain people more freedom of speech than the average citizen"? Or people who are really persuasive should be limited because they give more freedom of speech than the average of citizen? What about unions? A union has much more effective political effect when they speak then my 4 person law firm. Should the union not be permitted to engage politically? ¶ Complaining about the effectiveness of how someone politically expresses themselves says nothing about the reasonableness of the restriction of the mode of expression.”

Isn't it clear that it's easy to make limitations on campaign contributions that don't impact any other form of speech? We already have many restrictions on the Freedom of Speech; Scalia himself has said that every right is restricted, it's only a question of how much and in what way. This is not a mysterious thing, is it?

me: “That's a few inches away from saying that ‘people who don't like this decision hate freedom.’”

dios: “I didn't say that. You jumped down my throat from an implication I never said. Yet there are a lot of people here who are explicitly making ridiculously hyperbolic claims like 'banana republic' and 'annihilation of democracy' without even understanding the legal threads of this issue back to Buckley or the history of campaign funding. I don't see you jumping down their throats. No, instead you disagreed with a comment I made--which is not incorrect--and went straight for the insults right off the bath. That's not right.”

Come on, man – you and I have been arguing on and off for a decade on this website. I know you're smarter than this. That's what I said: that I am well aware that you're not dumb enough to think that the only option to change this is to utterly abandon the freedom of speech. I know for a fact that you're intimately aware of the intricacies of the ways that rights are restricted, routinely, often quite carefully and correctly. So why pretend here that you don't see any way to limit campaign contributions without a fundamental restructuring of government that guts the Constitution of one of its founding principles?

And you'll note that nobody had made any hyperbolic claims when you said that. I guess this is turning into a squabble, and I'd rather not have that happen, so I'll try to let it go. It's just... your comment flew in the face of what I thought was an awesome and carefully-written post. And that bugged me.

So I'll try to kick this in another direction, then. As far as I can gather, you seem to believe that this was necessary if the freedom of speech, as we have it now, is to be preserved. So I want to ask you: what would be lost if an amendment were passed simply and clearly saying that campaign contributions were to be limited to a certain amount? You've implied above that such an amendment would be tantamount to either repealing the First Amendment or taking away freedom of speech from "persuasive people" or something like that. Why?
posted by koeselitz at 12:11 PM on April 2, 2014 [13 favorites]

All funding for registered parties has to come from the government, and no private contributions allowed at all.

Wouldn't this enable the loudest wingnuts?
posted by mullacc at 12:11 PM on April 2, 2014

I thought the rise of soft money contributions had basically negated the entire point of a provision like this in the first place. Yeah soft money can't official work the with candidate but in practice it seems like coordination happens all the time.
posted by vuron at 12:11 PM on April 2, 2014 [4 favorites]

My daughter Veruca is going to be overjoyed. She's been insistent that I buy her a congressman before the day is out.

"Daddy, I want a congressman. Get me one of those congressmen, I want one!"

"Veruca dear, you have many marvelous pets."

"All I've got at home is one Fed chairman and two lobbyists and five Supreme Court justices and six governors and a green parrot and a turtle, and a silly old faux-news network! I WANT a CONGRESSMAN!

"All right, pet. Daddy'll get you a congressman just as soon as he possibly can."

"But I don't want any old congressman! I want a *trained* congressman!"

"Very well. Mr. Roberts? How much do you want for one of these congressmen? Name your price."

~~"Oh they're not for sale. She can't have one."~~ "Let's speak privately, Mr. Koch."
posted by scody at 12:11 PM on April 2, 2014 [22 favorites]

CONSTITUTION GUARANTEES FREEDOM OF SPEECH NOT FREEDOM OF VOLUME!

Volume is for rich people. You?! You poor sod, go whisper in a corner, ya bum.
posted by symbioid at 12:11 PM on April 2, 2014 [13 favorites]

Campaign contributions really aren't the problem. They are disclosed. I would be fine with totally unlimited donations directly to campaigns if soft money was regulated effectively.

Openly funding a campaign is speech. Soft money is an investment.
posted by spaltavian at 12:13 PM on April 2, 2014 [1 favorite]

And the whole "Repeal the First Amendment" retort is just a stupid, empty-headed statement. We've had restrictions on speech from the very beginning of the founding of this country. There's nothing in particular that was stopping the Supreme Court from limiting financial contributions while preserving the First Amendment, given how many other qualifications exist on types of speech, and what entity is speaking, etc.
posted by Blazecock Pileon at 12:14 PM on April 2, 2014 [20 favorites]

Roberts Court continues assault on campaign finance law

This ruling could change things in a number of ways. On one hand, it could mean nothing more than that a few rich people would decide to contribute not to ten or twenty campaigns in a cycle, but to 30 or 40. That would certainly increase their influence, but not all that dramatically. On the other hand, it could also mean that a billionaire could max out to all 435 of a party’s House candidates and all 33 of its Senate candidates. Do you think that party’s officials might be particularly interested in what that donor had to say about policy?

Let’s put this in some context. Here are the Roberts Court’s major campaign finance rulings in the last few years:

* 2007: FEC v. Wisconsin Right to Life. The Court ruled that corporations could air ads discussing candidates in the weeks before election day.

* 2008: Davis v. FEC. The Court struck down the “Millionaires Amendment” to the McCain-Feingold campaign finance law, which raised the contribution limit for candidates facing self-financed opponents.

* 2010: Citizens United v. FEC. The Court ruled that corporations and unions can spend as much as they want on campaigns, giving birth to the super PAC.

* 2011: Arizona Free Enterprise Club’s FreedomClub PAC v. Bennett. The Court struck down Arizona’s public finance system, in which candidates who entered the system got matching funds if they were outspent by privately funded opponents.

Every time this Court has confronted a question of campaign finance, where there is a conflict between the freedom of wealthy donors to do as they wish on one hand and the integrity of the system on the other, it has sided with the wealthy donors. Every time.

The obvious end point of this progression is the law that limits the amount anyone can contribute directly to federal candidates and parties, currently $2,600 to a candidate and $32,400 to a party (these amounts rise with inflation). To be sure, it’s entirely possible that faced with a case challenging those limits, the Court could decide they’ve gone far enough in previous cases and the limits should stay in place. And they could have eliminated them in this case, but chose not too (Clarence Thomas wrote a concurrence indicating that he is ready to do away with those limits). But the five conservative justices haven’t yet met a campaign finance restriction they didn’t want to strike down.

posted by zombieflanders at 12:15 PM on April 2, 2014 [9 favorites]

I'm for state funded-only campaign, but I do not think it is possible under the US legal system.

You need to make the public money more appealing than the private money: the state needs to fund the elections at a higher level than private individuals can.
posted by mr_roboto at 12:15 PM on April 2, 2014 [1 favorite]

It's probably better if people leave off with the "repeal the First Amendment" thing. The central point there still stands: if we want this to change, we have to amend the Constitution. That's necessary at this point, I think.
posted by koeselitz at 12:16 PM on April 2, 2014 [1 favorite]

Disclosure isn't all that helpful, I'm afraid. Everyone knows about how much money Sheldon Adelson is offering, and everyone who gets money from him knows what he wants them to do in exchange for his money. It's not enough to assume that voters, regulators, or ethics committees will get both perfect information about what the money is doing and have a desire to do something in response to learning about the obvious quid-pro-quos inherent in the system.
posted by tonycpsu at 12:17 PM on April 2, 2014 [1 favorite]

GENERAL VERRILLI

I know this is part of a long tradition, but seeing the solicitor general referred to as "general" always makes my eyelid twitch.
posted by grouse at 12:20 PM on April 2, 2014 [1 favorite]

.
posted by ZenMasterThis at 12:20 PM on April 2, 2014

You say people "know" but they really don't because they aren't paying attention. They would, however, if there was a check signed by people objectionable in a media-friendly way directly to "$REPUBLICAN for America".
posted by spaltavian at 12:21 PM on April 2, 2014

I don't think its necessary at all. What is necessary is that SCOTUS show some goddamn nuance with the issue instead of bludgeoning it with the extremely convenient hammer of 'free speech' when the benefactors of the people who put them on the bench step into the court room. What else are we going to do away with because it interferes with a 'basic right' in the most extreme sense of the term? Its shortsighted.
posted by Slackermagee at 12:21 PM on April 2, 2014 [2 favorites]

Hypothetical: I, as a donor interested in a specific politician, set up a series of meetings and conversations with them. Nothing wrong with talking. On a specific date, say, 4/2/2014 - just one date out of the many that we've been talking - I send a specific sign that anyone eavesdropping wouldn't notice. Soon, their campaign receives a donation with the very specific amount of $104,214.

Yeah, you'd have to have a government agency collecting the donations, aggregating them, and distributing them to the campaigns so this couldn't be tracked...
posted by mr_roboto at 12:23 PM on April 2, 2014

Here's an idea that I haven't seen floated... What if all campaign donations were required to be anonymous? Donors could contribute to whichever politicians they view as supporting their interests, but politicians could not know who had donated to them. Revealing a donation would be probable cause for a bribery investigation...

This is, essentially, how it works in most jurisdictions with regard to judicial elections. Judges "don't know" who their contributors are because they are not allowed to solicit donations. And because they "don't know", there is no need to recuse to avoid the appearance of bias.

My use of quotes (and body language and tone of voice when I lecture on this topic) give away precisely what I feel about this as a means of insulating judges from the pressures of privately-funded campaigns to become or remain judges. As long as someone knows where the money is coming from, the judge (candidate) knows. You see it in guest lists to events. You learn it from who is in the rolodex of your campaign manager. In my experience, Hobby Lobby has greater plausibility in denying it knows it has invested in pharmaceutical companies who make contraceptives than a candidate does in saying she has no idea who her monetary supporters are.

There are good solutions for judicial campaigns. Meaningful disclosure; specific recusal/disqualification rules; written decisions in recusal/disqualification rulings which should be made by judges other than one at issue and which should be immediately reviewable by another panel are easy ones.

For other campaigns, I don't know.
posted by crush-onastick at 12:23 PM on April 2, 2014 [1 favorite]

No it's not, because the constitution did not assume that spending money was a form of speech anymore than it assumed the use of broadcast airwaves granted unqualified free speech rights to the broadcaster. This is just historically unprecedented revision of the English language and the basic legal concepts underpinning our system in the interest of political advantage for a favored class. This is the opposite of the direction anyone interested in democratizing political speech would go because it inherently privileges some of society's members over others, making it possible for money to control the entire course of the political discussion without any public control or influence over the process. It's appalling and offensive that anyone would attempt to justify this as an enhancement of our freedom of speech rights.

It's just a necessary legal formality to wrap the whole system up nice and tight with a big bow for the highest bidder. It's disgusting and completely counter to America's historically professed democratic and egalitarian ideals. Shameful and humiliating. Congratulations on another Pyrrhic victory.
posted by saulgoodman at 12:23 PM on April 2, 2014 [25 favorites]

Also, it is to be noted that the vast majority of functioning democracies do not have this problem, or at least to a much lesser extent, without materially limiting political expression

Last I checked, it was illegal in the UK for anyone to purchase a television or radio advertisement advocating on behalf of any political candidate, party, or cause. While that's admirably content-neutral, simply banning all political expression from the airwaves is clearly a material limit.

On googling, this seems to be the case in France, Belgium, and Ireland as well.
posted by ROU_Xenophobe at 12:25 PM on April 2, 2014 [3 favorites]

If the system can no longer produce necessary change that benefits and protects people from the wild excesses of the super-wealthy, they will force us to use other means, and then use those means as evidence that democracy doesn't work, further curtailing civil rights and democracy.

Right, except those "other means" are all going to be nipped in the bud by the surveillance state and the fact that your local police department probably has access to military-style weapons and vehicles.

There is no alternative now.

From the opinion:

[Congress] may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.

This is a tacit acceptance of the idea that NOT reducing the amount of money in politics may allow essentially unrestricted political participation of "some" and will erode the relative influence of those "others."

In other words: You don't have money? Too fucking bad.
posted by kgasmart at 12:25 PM on April 2, 2014 [6 favorites]

Wouldn't this enable the loudest wingnuts?

Seth Masket has a piece arguing that exactly this happened in AZ, but I don't recall the cite.
posted by ROU_Xenophobe at 12:25 PM on April 2, 2014

Perhaps part of the long term solution is teaching children critical thinking and responsible voting. It seems to me that the underlying problem is that campaign funds can make the difference between a win and a loss. It is a failure of the voter -- and possibly the press -- not a failure of the legal system.

This times 1000. Why is everybody totally fine with the idea that money spent should correlate so strongly with the result of the election? Every argument here seems to be "We have to make sure that the rich can't buy elections better than we can" (which I guess I agree with in principle), but isn't the core of the problem that elections are buyable at all?
posted by IAmUnaware at 12:29 PM on April 2, 2014 [8 favorites]

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government's efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.

"quid pro quo corruption" IANAL but an example of this is me giving Senator X some money in exchange for Senator X doing a specific thing, yes?

What kind of corruption is it if I give Senator X some money in exchange for Senator X being, at some point in time later, willing to do something I ask of him?

The first kind of corruption is bribery, the second kind is corrupt employment -- a public servant becomes financially dependent on a cohort of donors for his/her job. That sounds at least as insidious as bribery to me.

Why does the court restrict the government to preventing "quid pro quo corruption"?

I would totally vote for Senator X
posted by serif at 12:31 PM on April 2, 2014

How does that work? You focus more primary and secondary school resources on teaching civics, and suddenly we've solved the problem of the lizard brain reacting to the next Willie Horton or "Clean Coal" ad? The idea that we could simply teach people to be more resistant to propaganda goes against everything we know about how the mind works.
posted by tonycpsu at 12:33 PM on April 2, 2014 [7 favorites]

Somewhere between "people are idiots and must be protected" and some idealized idea that they can be independent lies reality. I'm just saying you need to try hard to teach civics to people. Americans are remarkably ignorant, quantifiably, about things like foreign affairs and who their politicians are. Teaching will not magically solve the problem, but it would be part of a solution.
posted by Bovine Love at 12:35 PM on April 2, 2014

In reading through the opinion and the dissent, I have rarely seen such a clear contrast between the progressives' and the conservatives' judicial philosophy.

The progressives is very results-oriented. That is, "Here is the result we want to progress toward. How do we interpret the constitution in a manner that gets us there?"

The conservatives place a much greater emphasis on the rule of law. "Whether we like it or not, this is what the constitution actually says. It is not our job to legislate. If the people think it needs to be changed, that's what the amendment process is for."
posted by Alaska Jack at 12:36 PM on April 2, 2014 [3 favorites]

Yeah, I'm all for that as a necessary but insufficient part of the solution.
posted by tonycpsu at 12:36 PM on April 2, 2014

This times 1000. Why is everybody totally fine with the idea that money spent should correlate so strongly with the result of the election?

Because it's been empirically shown again and again? It's not like folks enjoy that this is the case.
posted by Reasonably Everything Happens at 12:36 PM on April 2, 2014

Fair enough. You could pass a subsequent constitutional amendment that effectively amends the First Amendment. But my point was simply you have to amend the constitution one way or the other because it is a constitutional principle.

I quite agree. Let's take on the Second while we're at it.

No it's not, because the constitution did not assume that spending money was a form of speech anymore than it assumed the use of broadcast airwaves granted unqualified free speech rights to the broadcaster.

Now, now, I'm assured that Scalia, for one, is a strict constructionist capable of knowing the intentions and principles of the Framers at a couple centuries' distance; surely his Founding Fathers Ouija board told him otherwise. /hamburger

So what's the remedy? Not allowing anyone to have more effective political expression than another person? So we take away the microphone from political talk show hosts because they "give certain people more freedom of speech than the average citizen"?

If only there were some sort of Rule about giving Time in Equal amounts to electorally competitive parties or something.

This times 1000. Why is everybody totally fine with the idea that money spent should correlate so strongly with the result of the election? Every argument here seems to be "We have to make sure that the rich can't buy elections better than we can" (which I guess I agree with in principle), but isn't the core of the problem that elections are buyable at all?

Yes, all we have to do is elect people who will promote and fund this sort of thing in all of our schools oh wait I think I see a problem.
posted by kewb at 12:37 PM on April 2, 2014 [2 favorites]

FWIW, I interpreted koeselitz' comment in exactly the same way dios did. I didn't understand why the "cognitive difficulties" insult was necessary.
posted by Alaska Jack at 12:39 PM on April 2, 2014

Alaska Jack: The progressives is very results-oriented. That is, "Here is the result we want to progress toward. How do we interpret the constitution in a manner that gets us there?"

The conservatives place a much greater emphasis on the rule of law. "Whether we like it or not, this is what the constitution actually says. It is not our job to legislate. If the people think it needs to be changed, that's what the amendment process is for."

No, they actually just pick and choose when they go with literal reading of the law or more expansive interpretations. The conservatives are no less results-oriented, it's just that the results they wanted in this case were a lot easier to get to from literal interpretation of the laws than their ruling in, say, Shelby County v. Holder.
posted by tonycpsu at 12:40 PM on April 2, 2014 [15 favorites]

I'm convinced the Supreme Court is running a long-term experiment on how to turn an egalitarian democracy formed from the rejection of the existence and privileges of titled aristocracy back into a titled aristocracy.
posted by Eyebrows McGee at 12:40 PM on April 2, 2014 [25 favorites]

I am 100% for the "make every American immune to advertising" plan. When do we start?
posted by theodolite at 12:41 PM on April 2, 2014 [4 favorites]

The conservatives place a much greater emphasis on the rule of law.

These are the same justices that said "rule of law" meant that voter suppression is totally OK without once citing a single law, Constitutional or otherwise, that supported that. This decision falls along roughly the same lines, what with the whole thing about the First Amendment being unlimited when used by rich people, but don't you dare yell "fire" in a crowded theater.
posted by zombieflanders at 12:42 PM on April 2, 2014 [4 favorites]

Last I checked, it was illegal in the UK for anyone to purchase a television or radio advertisement advocating on behalf of any political candidate, party, or cause.

Does that work? In the US we've already discovered Fair and Balanced ways around such restrictions.

And those loopholes are why "we need to amend the First Amendment" isn't just extreme, it's insufficient. Make it illegal for much money to change hands, and all you do is shut the middle class out of the process; rich people can just buy political ads directly. Make it illegal to buy political ads, and you just shut the moderately rich out of the process; the ultra-rich can own news media. You can't break the control of money over politics unless you also heavily regulate what the news media can publish, and even at that point you've just replaced cash with incumbency as the new form of inequitable wealth.

It is a failure of the voter

A well-considered vote is a public good. If we thought "teach people right and they'll voluntarily create enough public goods" was a decent solution to the tragedy of the commons, we wouldn't need government in the first place.

I'm not sure what the analog of public taxation and funding is here, though. You can force someone to stop by the polls for an hour and vote, but how can you force them to spend far more time than that properly researching their choices first?
posted by roystgnr at 12:44 PM on April 2, 2014 [2 favorites]

tonycpsu: maybe they do, in other cases. But not in this one.

I'm encouraged by kewb's take, above ("Let's take on the Second while we're at it"). If progressives stopped trying to impose their beliefs by judicial fiat, and actually focussed on persuading others that their cause was just and that the constitution should be amended accordingly, I would consider that a gigantic step forward.
posted by Alaska Jack at 12:45 PM on April 2, 2014 [1 favorite]

zombieflanders: "the First Amendment being unlimited when used by rich people, but don't you dare yell "fire" in a crowded theater."

Dude, Mr. Moneybags is trying to watch the opera, shut up in the cheap seats or we'll have to close the balcony!
posted by Eyebrows McGee at 12:46 PM on April 2, 2014 [1 favorite]

zombieflanders: I'm not sure how to respond to that. By "voter suppression," do you mean that when one votes, the other voters have a right to ask that you simply demonstrate you are who you claim to be, and that you are entitled to vote in such-and-such an election? I have no problem whatsoever with this -- in fact, I've often thought that it's one of those rare issues that left and right could agree on, since every fraudulent vote cast disenfranchises someone else's legitimate vote.
posted by Alaska Jack at 12:51 PM on April 2, 2014

If progressives stopped trying to impose their beliefs by judicial fiat, and actually focussed on persuading others that their cause was just and that the constitution should be amended accordingly, I would consider that a gigantic step forward.

This discounts the massive pushes amongst progressives to amend laws via the usual channels, which is basically every major progressive cause since before WW2. Much of the progressive wins (and "wins") in the courts have been at the hands of challenges from conservatives being overturned or denied. But don't let that get in the way of another jab along the "liberals don't get shit done" narrative.
posted by zombieflanders at 12:51 PM on April 2, 2014 [7 favorites]

GENERAL VERRILLI

I know this is part of a long tradition, but seeing the solicitor general referred to as "general" always makes my eyelid twitch.

In Lois McMaster-Bujold's latest book, Cousin Ivan gets a new job and has to share an office with Count Lord Auditor Captain Miles Naismith Vorkosigan. Interstellar hijinks ensue!
posted by wenestvedt at 12:53 PM on April 2, 2014

Right, except those "other means" are all going to be nipped in the bud by the surveillance state and the fact that your local police department probably has access to military-style weapons and vehicles.

There is no alternative now.

I don't know if you wrote that as a specific reference to Thatcher/Reaganism, but I think the linkage is clear. We were in trouble the moment that national leaders explicitly adopted authoritarianism and accorded it ontological privilege over democracy.
posted by clockzero at 12:53 PM on April 2, 2014 [2 favorites]

Alaska Jack: If progressives stopped trying to impose their beliefs by judicial fiat

You just acknowledged the possibility that the Roberts court did the same thing in other cases, so forgive me if I take this bit of concern trolling with a grain of salt. I'd love it if people of all ideologies stopped trying to impose beliefs by judicial fiat, but I'll be damned if I'm going to watch the people who share my ideology stand idly by watching our entire democratic system crumble, while letting those who don't share it continue to wage an all-out assault on voting rights from all branches and at all levels of government.
posted by tonycpsu at 12:54 PM on April 2, 2014 [15 favorites]

unfettered free-market capitalism combined with the efficiency gains of computers and the internet drives ever increasing wealth disparity and economic inequity which inevitably corrupts and overrides democracy and slowly but surely leads to plutocracy - like frogs in a simmering bath of water the lizard people keep turning up the heat but the frogs keep saying, 'gee, is it getting warm in here or is it just me?' this pot of water is the only pot of water i know and when someone talks about alternatives to living in a simmering pot of water they must be crazy.
posted by j03 at 12:56 PM on April 2, 2014 [4 favorites]

By "voter suppression," do you mean that when one votes, the other voters have a right to ask that you simply demonstrate you are who you claim to be, and that you are entitled to vote in such-and-such an election? I have no problem whatsoever with this -- in fact, I've often thought that it's one of those rare issues that left and right could agree on, since every fraudulent vote cast disenfranchises someone else's legitimate vote.

Except that's not what's happening. Apart from the fact that voter fraud is less likely than UFO sightings, the solutions you discuss have never been applied equally. There's always an excessive fee, or the locations are always "coincidentally" hundreds of miles away from majority-minority communities, or require documentation that is generally harder for those demographics to obtain, or that it has nothing to do with ID at all but just wants to get rid of people even with valid ID voting in a manner of their choosing. And that's just when they don't just come out and say their laws are meant to help white people vote/conservatives win or suppress minorities' votes/make progressives lose, which happens to a shockingly high degree.

It also helped that the current Chief Justice was specifically tasked by Reagan and Bush I to destroy the Voting Rights Act, but at this point it seems clear that a lot of people don't think that matters.
posted by zombieflanders at 12:57 PM on April 2, 2014 [18 favorites]

I guess it would be uncouth to point out that Sandra Day O'Connor judicial activism'ed George W. Bush into the White House from the Supreme Court bench, but that was back before the principle of making sure all legitimate votes were counted became so important to the G.O.P.
posted by tonycpsu at 1:02 PM on April 2, 2014 [6 favorites]

jason_steakums: "So now that you can quantify how much free speech a person has, we should probably redistribute all of those speech units so that everyone's equally free, I guess."

Oh my, no, that would be socialism, my good sir, and we certainly can't have any of that around here.
posted by caution live frogs at 1:05 PM on April 2, 2014 [4 favorites]

It's always about imposing your will on other people.
posted by wuwei at 1:09 PM on April 2, 2014 [3 favorites]

I'd love it if people of all ideologies stopped trying to impose beliefs by judicial fiat

I'm guessing you're fine w/ judicial fiat when you agree with the outcome (eg, abortion rights; gay rights; etc).
posted by jpe at 1:09 PM on April 2, 2014

I'm fine with whatever mechanisms, judicial or otherwise, we use toward making "a more perfect union," it's willful use of those various mechanisms to impose the interests of a wealthy elite on others and ceate social disunion that I'm having trouble reconciling with the spirit of this whole endeavor.
posted by saulgoodman at 1:16 PM on April 2, 2014 [3 favorites]

Mavri - I honestly don't understand the linkage you are trying to make. From a liberal perspective, having the court strike down legislation is thoroughly unremarkable -- it is maybe the court's main reason for existence.

I would have no problem with a progressive trying to convince me that (e.g.) the First Amendment needed to be updated to reflect modern realities. To my mind, this is far more honest than trying to pretend it already means something that neatly fits with our preferred policies.
posted by Alaska Jack at 1:16 PM on April 2, 2014

What an efficient means of laundering cash!
posted by Fupped Duck at 1:17 PM on April 2, 2014 [1 favorite]

jpe -- you'd be guessing wrong, but let's stick to the subject matter here and not stray into guesses about what other commenters think about other things.
posted by Alaska Jack at 1:18 PM on April 2, 2014 [1 favorite]

So what's the remedy? Not allowing anyone to have more effective political expression than another person? So we take away the microphone from political talk show hosts because they "give certain people more freedom of speech than the average citizen"? Or people who are really persuasive should be limited because they give more freedom of speech than the average of citizen?

It is not exactly a wild hypothetical to imagine a perfectly reasonable legal regime under which there was a limitation on aggregate campaign contributions. It was the law, right here in America, until this afternoon. As far as I know, this legal situation did not generate any widespread sense that it would be constitutional to pass a law forbidding especially persuasive people from expressing their political beliefs. People understood that the two situations are quite different.
posted by escabeche at 1:18 PM on April 2, 2014 [10 favorites]

saulgoodman -- I disagree with you, but well said.
posted by Alaska Jack at 1:18 PM on April 2, 2014 [2 favorites]

I would have no problem with a progressive trying to convince me that (e.g.) the First Amendment needed to be updated to reflect modern realities. To my mind, this is far more honest than trying to pretend it already means something that neatly fits with our preferred policies.

Someone can just as easily say you're trying to pretend it doesn't. The Supreme Court wouldn't have much to do if interpretation of the Constitution was that simple.
posted by jason_steakums at 1:20 PM on April 2, 2014

What can the people do?

Public financing.

Are there many people in the U. S. Congress who have argued for public financing?

When I put "which congressman favor public election financing" into a google search box it returns a page that does not contain the names of any congressmen.
posted by bukvich at 1:20 PM on April 2, 2014

jason_steakums - that's true! Good point.
posted by Alaska Jack at 1:21 PM on April 2, 2014

I have to admit, while I think this Supreme Court would gleefully strike down virtually any good campaign-finance law, that I can't figure out why this particular restriction was what it was. Limiting contribution amounts to a single candidate makes sense. Limiting contribution amounts to X number of candidates, though? Why bother, other than just "money in politics is bad, but we can't get it out entirely"?
posted by Etrigan at 1:21 PM on April 2, 2014

From a liberal perspective, having the court strike down legislation is thoroughly unremarkable -- it is maybe the court's main reason for existence.

Which explains the widespread support among liberals for Hobby Lobby's case?

You keep on going to the liberal judicial activism well, but it's not their shtick, and arguably is less their preference than it is conservatives'.
posted by zombieflanders at 1:22 PM on April 2, 2014 [3 favorites]

Are there many people in the U. S. Congress who have argued for public financing?

My congressman, Mike Honda (who is an almost perfect liberal democrat) has tried to push bills which would implement public financing of elections among other things.
posted by Talez at 1:23 PM on April 2, 2014

zombieflanders -- your response confused me for a moment, when I realized that the fault was mine for not being clear. I meant liberal as opposed to progressive; not liberal as opposed to conservative. Sorry, didn't mean to confuse.
posted by Alaska Jack at 1:24 PM on April 2, 2014

All the campaigning I've done for liberal and progressive candidates has included concerns about Supreme Court nominees. This is why. I'm so discouraged about being American.
posted by theora55 at 1:26 PM on April 2, 2014 [1 favorite]

It's all a bit ridiculous that the whims of history that put the one tiebreaking vote on the bench in a single case that happened to come along amount to such huge policy ramifications. I mean, I get the spirit behind the idea of the Supreme Court being structured the way it is, but dear god, there has to be something better than a single Justice having so much sway. Damned if I know what a solution would look like, though.
posted by jason_steakums at 1:27 PM on April 2, 2014 [3 favorites]

I don’t care whether it came from Buckley or Buttafuoco or Jesus H. Murphy Tap Dancing Christ on a Cracker, the idea that campaign contributions equal free speech is simply and blatantly cuckoobananapants. I’ve read the relevant literature, and it’s very pretty mental contortionism, designed to rationalize what the people who wanted to do it, wanted to do. And the hole in the fabric of the republic just keeps getting a little bit wider.
posted by The Underpants Monster at 1:31 PM on April 2, 2014 [13 favorites]

I've always found it weird when liberals start to insist that money isn't speech. Carving out exceptions to speech for political campaigns seems theoretically possible, but it isn't really the system we've had, and are not likely to have. And either way, is there any doubt that money and power will find each other, the way money and power always do? As far as I'm concerned, getting money out of politics is utopian nonsense whose only purpose is as a campaign slogan.
posted by 2N2222 at 1:33 PM on April 2, 2014 [1 favorite]

I've always found it weird when liberals start to insist that money isn't speech.

It's because it only talks in a metaphorical sense.
posted by Talez at 1:34 PM on April 2, 2014

Money is something you give in exchange for something else. That's not the same thing as speech, and it's not too difficult to see, unless you're willfully blind.
posted by 1970s Antihero at 1:39 PM on April 2, 2014 [20 favorites]

A couple of thoughts: As a practical matter, I would imagine very few people are capable of donating say $2600 to a candidate. I hang out with programmers who sometimes make low six figures and between house, car, school, college savings etc. they would consider a donation of that size to *one* candidate to be a ridiculous luxury. So to the "common man/woman", reading this is about like reading that people are mad because they are not allowed to park more than one yacht in the marina. From there it's easy to see why a lot of people (including me) feel that you get your 1 vote = there's your speech. Equal to mine, not with a force multiplier you may have gotten through clawing your way into the 1%.

Also I would like to point out that "strict constructionist" is a made up term that makes no sense and defines nothing. Basically it's analogous to "Bible literalists" and means "once I've determined what *I* think the text means, and have personally discarded the many other reasonable interpretations so as to best suit my own prejudices and preconceptions, we need go no further". I hate when people say they are "strict constructionists". It implies some sort of neutrality or simplicity that isn't there.
posted by freecellwizard at 1:41 PM on April 2, 2014 [41 favorites]

jason_steakums -- I get where you're coming from. Here's another interesting one: It has come out that the federal prosecution of former Alaska Senator Ted Stevens was deeply unethical - essentially the prosecution withheld exculpatory evidence. His conviction was later overturned, but it led to him losing his election. Without that loss, the Republicans filibuster and we don't get Obamacare.

(And I say this as no fan of Stevens.)
posted by Alaska Jack at 1:45 PM on April 2, 2014

If dollars are free speech, what does that make bullets?
posted by valkane at 1:50 PM on April 2, 2014

The lamps are going out all over North America...
posted by The Card Cheat at 1:52 PM on April 2, 2014 [1 favorite]

It's because it only talks in a metaphorical sense.

Especially because it's in a metaphorical sense is why I think it's so weird when liberals insist money isn't speech. My money helps ensure my favorite pro choice politicians and causes have a place at the table, and extends my voice in that way. If I had the resources, I'd test the limits, too.

Just when liberals do it, or conservatives, too?

I don't expect much from conservatives. I'd say this was an example where McCain's instincts were characteristically poor. Not that the typical conservative is all that prinicpled on the matter. I think if they believed these cases put them at the disadvantage, they'd oppose them, too.
posted by 2N2222 at 1:55 PM on April 2, 2014

The only things that cheer me about this is that political spending is not hugely correlated with election outcomes, and that the model of getting small donations mean that each of those people are more likely to go out and vote because they've sunk some costs into the idea of their candidate winning.
posted by klangklangston at 1:57 PM on April 2, 2014 [3 favorites]

"[Congress] may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others."

This is an odd connection, but when I read this it reminded me of Steven's dissent in Adarand vs Pena--the part where he stated "The consistency that the Court espouses would disregard the difference between a 'No Trespassing' sign and a welcome mat." In that case the majority struck down race-based preferences on fifth Amendment grounds.

In this First Amendment case, I feel like the court is making the same mistake, but in reverse. In Adarand they looked at a welcome mat and saw a "keep out" sign and in McCutcheon they looked at a "keep out" sign and saw a "welcome mat."

Maybe that is the part of difference between the conservatives and the liberals on the court? Is there a word for this? It is like conversations I've had with my children.

Me: "Please go to bed, you need your rest for school tomorrow."

Kiddo: "Why don't you want me to finish this book I'm enjoying?"

Me: "I'm sure it is a good book, but you need to go to bed now."

Kiddo: "You are saying 'Stop reading that book. I don't want you reading that book.' What is wrong with it?"

Me: "I'm not saying anything about the book, I'm saying you need to go to bed. PLease go to bed."

Kiddo: "What do you have against this book?"

Me: (Sighs. Lifts child off couch, carries child to her room, removes book from child's hands, exits room, closes door to room.)
posted by Cassford at 2:00 PM on April 2, 2014 [2 favorites]

Alaska Jack: “I would have no problem with a progressive trying to convince me that (e.g.) the First Amendment needed to be updated to reflect modern realities. To my mind, this is far more honest than trying to pretend it already means something that neatly fits with our preferred policies.”

A couple of things:

First of all, as we've seen in this thread, terms like "liberal" and "progressive" (and "conservative") are almost utterly useless, as they reflect nebulous arrays of positions rather than actual parties and coalitions at this point. I mean – "progressives" were the first to push the Court in the direction of striking down legislation, but that was many, many decades ago, and "progressive" didn't mean the same thing that it does now. Even at that time, "progressive" as a term was already half a century old. More to the point, in the subsequent decades, it's clear that striking down legislation became just as much a tactic of the conservative Court. In short: it makes more sense to talk about specific positions and their costs and benefits, rather than in vaguely broad terms which seem to encompass groups which can't really be nailed down easily without a lot of intellectual footwork that I doubt we're going to do here.

Second: this is a much more complicated topic than you're making it. I said above that we might need a Constitutional Amendment; note that, as far as I can tell, there has never been a Constitutional Amendment that was claimed by its partisans to be actually changing the Constitution. Without exception, when people introduce Constitutional Amendments, they do so because they feel as though they're correcting an oversight in order to keep the Constitution within the spirit in which the Founders intended it. This is true stretching all the way back to the 11th Amendment, a hasty amendment with which I personally do not agree but which nonetheless was argued by many people, not least many of the Founders themselves, to be truly in the spirit of the original Constitution and merely a correction of a small error rather than a change in its overall project.

And third – perhaps more to the point: I think many people (nowadays Tea Partiers, although it's a perennial American pastime) tend to simplify the realities of the Founding era. Specifically, there is no sense in which the Founders intended the First Amendment to confer a right to the Freedom of Speech to be respected by the states. None of the first twelve amendments applied to the states in any way. The Bill of Rights (most of it, anyway) was only applied to state law by a process known as "incorporation" as a result of the application of "due process" to the states in the Fourteenth Amendment in the wake of the Civil War.

So, in other words – if we passed an amendment to the Constitution which allowed (for example) Arizona's campaign laws to stand, we would only be returning to the Founders' original vision of how the United States ought to work.
posted by koeselitz at 2:02 PM on April 2, 2014 [3 favorites]

as far as I can tell, there has never been a Constitutional Amendment that was claimed by its partisans to be actually changing the Constitution. Without exception, when people introduce Constitutional Amendments, they do so because they feel as though they're correcting an oversight in order to keep the Constitution within the spirit in which the Founders intended it.

Prohibition and direct election of Senators come to mind.
posted by Etrigan at 2:05 PM on April 2, 2014

"Hans, are we the baddies?"
posted by humboldt32 at 2:08 PM on April 2, 2014 [1 favorite]

Etrigan: “Prohibition and direct election of Senators come to mind.”

It's been a while since I've read the original literature, but I'm almost certain that in both cases proponents strongly made the argument that they were merely acting in the spirit of what the Founders originally intended.
posted by koeselitz at 2:11 PM on April 2, 2014

First came the Court’s 2010 decision in Citizens United v. FEC, which brought us the Super PAC era.

Then came the Court’s 2013 decision in Shelby County v. Holder, which gutted the centerpiece of the Voting Rights Act.

Now we have McCutcheon v. FEC, where the Court, in yet another controversial 5-4 opinion written by Roberts, struck down the limits on how much an individual can contribute to candidates, parties and political action committees.

It is crushingly sad to me that none of this would have happened if Gore had won in 2000. And we wouldn't have invaded Iraq either.

Fuck.
posted by Aizkolari at 2:12 PM on April 2, 2014 [4 favorites]

2N2222: “I've always found it weird when liberals start to insist that money isn't speech.”

Well, clearly you don't mean that money is speech, literally. Right? When the government taxes citizens, some more than others, on the basis of their income, it is not taking away their speech. I do not have a freedom of money; that doesn't even make much sense. The terms are not directly interchangeable, as far as I can tell.

What I think some of us mean when we say "money is speech" is that money is a way to purchase platforms for speech. It's a way to purchase newspaper ads, or airtime, or commercial slots, or news stations, or whole newspapers, etc. These, too, it should be noted, are not speech – not in those terms as the Constitution clearly means them when it guarantees citizens a right to the Freedom of Speech under federal law. The Constitution does not guarantee me a right to newspaper ads. It does not even guarantee me a right to have the ability to buy newspaper ads. If I want to run an ad in the New York Times that says "The New York Times is an idiotic rag," the New York Times advertising department has the freedom to tell me to stuff it. They aren't required to print anything I want them to print. There have been a few cases where courts have said that people might be guaranteed a right to purchase advertising from federal agencies no matter their message as long as it isn't vulgar – I vaguely remember Michelle Malkin running some subway ads some years ago – but that's not applying to private publishers, and it's not guaranteeing anyone a right to speech at all, really, so much as insisting on some kind of equality of ability to purchase advertising.

It's tough to riddle out, but I'm quite sure it isn't true that money is simply speech.
posted by koeselitz at 2:15 PM on April 2, 2014 [21 favorites]

This is a drop in the bucket of it being starkly clear that the US Constitution is outdated and broken, especially when held in comparison to modern state-of-the-art democracies.

Constitutional amendment is absolutely a great way to address the failure of the system, and I think people mostly dismiss the idea because congress&co are so dysfunctional right now they couldn't agree whether the sky was blue, let alone do their job, let alone contemplate constitutional amendments.

But why not start (among other things) gathering a head of steam for constitutional amendment? It's not impossible, and if it's plausible, then it's probably the smartest way forward.
posted by anonymisc at 2:24 PM on April 2, 2014 [1 favorite]

jason_steakums: So now that you can quantify how much free speech a person has, we should probably redistribute all of those speech units so that everyone's equally free, I guess.

Sure, if you're a dirty socialist.
posted by filthy light thief at 2:24 PM on April 2, 2014 [1 favorite]

Of course it's not. Speech meant exactly what it said on the tin: the literal act of talking to other people about your beliefs and opinions freely without fear of political sanction or retribution. It's the kind of thing that tends to be right at the top of the list of things you want after having just toppled an oppressive monarchy that routinely imprisoned and punished people for speaking out against it.
posted by saulgoodman at 2:25 PM on April 2, 2014 [1 favorite]

koeselitz: "What I think some of us mean when we say "money is speech" is that money is a way to purchase platforms for speech. "

Literal platforms in the form of soapboxes. Mine is very small, while the Koch Brother's pair towers over me.
posted by Big_B at 2:26 PM on April 2, 2014 [1 favorite]

What I think some of us mean when we say "money is speech" is that money is a way to purchase platforms for speech.

No, not exactly. The whole "money is speech" meme is silly and obfuscating and polarizing -- it's used by people who have an axe to grind, and I say this as one of those people grinding away at that particular axe. But if we're being honest, what Buckley v. Valeo and its progeny really stand for is the idea that political contributions (which are, yes, made with money) are a form of core political expression. So not "money is speech" but "the expenditure of one's own money to support a political cause or candidate is itself a political statement." That's not as pithy, and it doesn't permit anyone to bean Scalia with a sock full of nickels (for good or ill), but it's more accurate -- and it's pretty hard to argue with.

What that actually means, as a constitutional matter, is a separate issue, as Breyer's dissent quite forcefully points out here.
posted by The Bellman at 2:32 PM on April 2, 2014 [3 favorites]

"Money is speech" is a very dumb version of "voting with your dollars." Anyone can donate money to the cause or candidate('s SuperPAC) of their choice, and in that way, you are "speaking" with your money. Donate to the cause you like, and they can do more and get out their word more! You just paid for speech!

Except it's completely clear that there is no balance in who has money, and what that money can then indirectly buy.

Democracy gets weaker and weaker, but public relations firms rejoice.
posted by filthy light thief at 2:34 PM on April 2, 2014 [2 favorites]

Wow this is fast moving, so let me just grab a few strands as I was away for a couple hours.

I have seen now a couple comments about Bush, and the Roberts Court, etc. as if this is a recent theory being espoused. Again, it's not. It's one that the ACLU has advocated and was firmly established in the 70's. The absence of understanding this is causing people to make a lot of partisan comments that are inaccurate, both from a historical point of view and political point of view.

It was the law, right here in America, until this afternoon.

This is incorrect. Back in Teddy R's days, he got flack for accepting large amount of money from Ned Harriman for an ambassadorship. There was some dabbling with campaign finance reform beginning in 1900's, but the first major campaign reform was in 1971 with FECA. That was challenged and struck down in part by Buckley v. Valeo in 1976. From 1976 until the McCain/Feingold Act in 2002 that further CFR was passed. After that, there have been numerous other constitutional challenges and legislative attempts to pass CFR. But prior to McCain/Feingold, CFR was not "the law, right here in America, until this afternoon.

The reason why you are seeing so many Supreme Court opinions since 2002 on CFR? Because that is when the laws started to get passed that the Supreme Court is reviewing. It isn't like the Supreme Court decided to start chipping away at 200 year old law. From Buckley v. Valeo in '76 until '02 they had no occasion to consider the matter because there was no new law. Congress is driving these Supreme Court opinions because Congress is the one who is trying to legislate Buckley v. Valeo out of existence. Congress is being aggressive on CFR and that is driving the Court to have to confront these issues, not the other way around.

So to act as if this is (1) new, (2) unprecedented, or (3) being driven by an ideological court is historically inaccurate.

It's also politically inaccurate because there have been plenty of progressive/liberal opposition to CFR precisely because it impairs First Amendment rights. It's quite easy to find this. I get that today in the progressive blogosphere, the hyperpartisan position consists of complaints about Citizens United, the Koch Brothers and other grievances about rich people stealing the country (you see it here). But the modern partisan platform is not coextensive with liberalism, either philosophically or legally which has opposed CFR on the grounds it is a violation of individual rights and liberty.

Public financing.

Public financing has massive unintended consequences. Most importantly, public financing is basically nothing more than the incumbent entrenchment. When incumbents and challengers get the same amount of money and can only spend the same amount of money, incumbents win. Already incumbents win some ridiculous percentage like 85-90% of the time. This would make it even hire. One of the primary ways to defeat an incumbent is from an upswell in support that allows a primary to get out there and overcome the natural name-recognition that the incumbent has. I would consider that a worse fate than our current CFR system.

The reality is that the only problem that CFR is intended to address is corruption. There is no other problem. If politicians are corrupt, that's why we have impeachment, ethics investigations, and the most important tool of all: regularly held elections. Vote the crooks out. I don't think there is that much corruption. What I mean by that is the politician who represents $Rich_Suburb is probably a guy who is going to want to protect $Rich_Suburb's interests because the politician wants to be re-elected, even if the residents never give him a dime. $Rich_Resident's donation isn't getting favorable legislation when the representative was going to vote that way anyhow.

Bill Bradley said it best. Politicians want votes more than money, and the only thing money is good for is trying to get votes. Because politicians want to be elected and only votes count there. It is highly unlikely that the politician votes against the wishes and interests of their district just because someone gives them money because that money isn't going to get votes. If the politician does that, the politician is likely to get voted out. Then the process worked.

"Money is not speech."

I think many of you should consider that constitutionally that is not an accepted argument. None of the 4 dissenters took that position, nor did they do so in any of the CFR cases. It is a democratic principle that the most important form of expression is a political expression. And it is established constitutional jurisprudence that restrictions on who I can support (with money or otherwise) is an impairment of my ability to politically express myself. The only constitutional question is whether such an impairment is reasonable, as it can be (and the evil Roberts majority found some of those impairments reasonable today). Perhaps consider the argument these judges understand if you want to make a constitutional claim about whether the First Amendment protects political contributions or expenditures. Acting as if something is self-evident to you but all of these judges can't spot the obvious is perhaps some indication that you are considering different questions. And courts have consider the questions before it, not your personal political beliefs.
posted by dios at 2:34 PM on April 2, 2014 [15 favorites]

The Bellman: That's not as pithy, and it doesn't permit anyone to bean Scalia with a sock full of nickels (for good or ill), but it's more accurate -- and it's pretty hard to argue with.

Emphasis mine.

It's hard to argue with, until you look at distribution of money. Democracy, even indirect democracy, is better, because everyone has one vote. Even if you're aggregated into a larger group, you still only have one vote.

So the wealthy can have millions of votes, while the poor can have a couple, if they can afford that.
posted by filthy light thief at 2:36 PM on April 2, 2014 [2 favorites]

This is a drop in the bucket of it being starkly clear that the US Constitution is outdated and broken

The Supreme Court's inability to stem the corruption of money raises an interesting question. If the makers could not have foreseen the tyranny of kings being replaced with the more disastrous and sinister despotism of CEOs, corporations and one-percenters, if the Constitution is lacking of an immune system to deal with the disease of money now afflicting it, maybe parts of it are indeed outdated and broken. Can an amendment deal with a design problem that leaves the Constitution vulnerable to this kind of systemic corruption?
posted by Blazecock Pileon at 2:36 PM on April 2, 2014 [1 favorite]

What can the people do?

Not vote for Nader, put Gore in the White House, and at least Roberts isn't on the SC right now.

Fortunately, the two parties are exactly the same and it doesn't matter for whom you vote.
posted by professor plum with a rope at 2:36 PM on April 2, 2014 [3 favorites]

Not vote for Nader, put Gore in the White House, and at least Roberts isn't on the SC right now.

Except it's 2014, so looking back with tears in our eyes does nothing.
posted by filthy light thief at 2:37 PM on April 2, 2014 [3 favorites]

. If I want to run an ad in the New York Times that says "The New York Times is an idiotic rag," the New York Times advertising department has the freedom to tell me to stuff it

Constitutional rights apply as against the government. The NY Times isn't the government. If the gvt paased a law saying I couldn't buy ads, it would absolutely be unconstitutional.
posted by jpe at 2:40 PM on April 2, 2014 [1 favorite]

"Fortunately, the two parties are exactly the same and it doesn't matter for whom you vote."

Why do the plutocrats/oligarchs/one percenters want to spend more to ensure the GOP gets in then? Ha ha! roberts is in league with the far left! Drain the rich of their funds by making them think they are making a difference when there isn't a dime's worth!

Brilliant. Or silly.
posted by Cassford at 2:43 PM on April 2, 2014

Money is speech but it is also power, and a more immediately persuasive and useful form of power than a statement of someone's political position.
posted by Small Dollar at 2:43 PM on April 2, 2014

So to act as if this is ... being driven by an ideological court is historically inaccurate.

There really aren't enough ROTFLMAOs in the world to do this statement justice.
posted by goethean at 2:44 PM on April 2, 2014 [1 favorite]

Except it's 2014, so looking back with tears in our eyes does nothing.

True. I don't know if I'll ever stop being angry about that. But it does show the way forward: Put a Dem in the WH in 2016 and the Supreme Court almost certainly will swing back in the direction of sanity. Then re-litigate these cases.
posted by professor plum with a rope at 2:47 PM on April 2, 2014 [4 favorites]

But prior to McCain/Feingold, CFR was not "the law, right here in America, until this afternoon."

I don't think we're really disagreeing here, dios. Yes, 20 years ago the law was different, and 50 years ago it was even more different. All I'm saying is that it's not absurd to imagine a situation where aggregate campaign contributions were restricted -- that is, it is not as absurd as the situation where people are prevented from giving speeches because they're too persuasive. And we still, now, have a situation where campaign contributions to an individual candidate are restricted; I haven't read the opinions but my impression is that everyone except Thomas signed onto this, so it doesn't even seem particularly controversial.

Acting as if something is self-evident to you but all of these judges can't spot the obvious is perhaps some indication that you are considering different questions. And courts have consider the questions before it, not your personal political beliefs.

Exactly. If the legal question here weren't to some degree difficult, it wouldn't have gotten before the Court. But this says nothing about the question of whether the consequences of the decision will be good or bad. I think the people on MeFI who are pissed about this aren't making a legal argument, they're saying that every legal question apart from the most cut-and-dried presents us with a choice about how to interpret the Constitution, and that the consequences for the country of interpreting the Constitution in particular way are terrible. Which is a totally different question from the one before the Court, but a natural one for people to talk about today.
posted by escabeche at 2:48 PM on April 2, 2014 [5 favorites]

>So to act as if this is ... being driven by an ideological court is historically inaccurate.

There really aren't enough ROTFLMAOs in the world to do this statement justice.
posted by goethean at 4:44 PM on April 2

Did you bother to understand my point? Perhaps it was not clear, though I think contextually it is. Let me try again:

The Roberts Court did not unilaterally decide to challenge an established legal rule just out of the blue. They didn't pick the fight.

The reason why these cases are coming to the Court is because Congress is trying to change the Buckley v. Valeo law. McCutheon v. FEC does not exist because of Roberts. McCutcheon v. FEC exists because Congress decided to pass the BRCA, etc. The existence of the case is tied to Congressional action on CFR, not Court appointments.

I surely was not saying that the Court is not ideological in how they rule on these cases. My point was it did not matter what the ideology of the Court is, the challenges are happening because Congress is the one making laws that can be challenged.

If you find that claim debatable, perhaps explain why instead of offering content-free nonsense.
posted by dios at 2:51 PM on April 2, 2014 [1 favorite]

This would make it even hire.

It sure would.
posted by Ice Cream Socialist at 2:51 PM on April 2, 2014

Not vote for Nader, put Gore in the White House,

Gore actually won the election. It's not Nader voters, who were exercising their democratic right to vote for someone other than the two major parties, who are to blame for any of this.
posted by scody at 2:53 PM on April 2, 2014 [12 favorites]

This case came up in the last few weeks as questions to him and it sounds like the way it went today, Lessig's nightmare scenario is coming true. Instead of most all political races being decided by about 48,000 people in the 1% of top income earners in this country that finance elections, it looks like this will skew it further to where he estimates about 10,000 well-off people will decide most races based on their financing

How You, I, and Everyone Got the Top 1 Percent All Wrong

It's even more egregious than that. An amazing chart from economist Amir Sufi, based on the work of Emmanuel Saez and Gabriel Zucman, shows that when you look inside the 1 percent, you see clearly that most of them aren't growing their share of wealth at all. In fact, the gain in wealth share is all about the top 0.1 percent of the country. While nine-tenths of the top percentile hasn't seen much change at all since 1960, the 0.01 percent has essentially quadrupled its share of the country's wealth in half a century.

posted by the man of twists and turns at 2:53 PM on April 2, 2014 [3 favorites]

In its majestic equality, the law permits rich and poor alike to contribute millions of dollars to political campaigns.
posted by Cookiebastard at 2:59 PM on April 2, 2014 [45 favorites]

This is doubly destructive, because as the floodgates open and money pours into politics and corruption, all that money - hundreds of billions - is squandered wealth. Instead of my dollar paying someone to build a house and your dollar paying someone to build a car, my wealth annihilates your wealth, and we are both poorer for it, our society burdened instead with supporting a massive infestation of a parasite-class (such as political advertising agencies) that soak up productivity and squander it making unwanted obtrusive political advertisement, not creating wealth, not betterment, not schools, not services to raise the quality of living.

Every dollar diverted into politics lowers our society's standard of living.
posted by anonymisc at 3:00 PM on April 2, 2014 [17 favorites]

Five out of six of the men voted for the majority, all three women voted against.

Yeah, it's pretty much been the ladies holding down the last vestiges of the fort for awhile now. (Sorry Breyer, but you <3 the cops too much for my taste.)
posted by likeatoaster at 3:06 PM on April 2, 2014 [1 favorite]

Every dollar diverted into politics lowers our society's standard of living.

Yes, exactly.

The only silver lining I can see here is that the shouting is so loud that people are steadily tuning it out, leading to even louder shouting, in what I hope is a self-defeating cycle. TV advertising (because that's still primarily what it's about) is losing its effectiveness - there's only so many times you can take "Vote for A, because B kicks puppies". And then there's cord-cutting in its various forms - even years ago it was a rare occasional political ad that got past our DVR (thank you ReplayTV), and these days TV has lost my limited viewing altogether to Netflix etc.

If this titanic flood of dollars instead goes into organizing, voter identification, improving voting rates on each side ... well, I'm actually okay with that.

(And that's exactly why Republicans have relentlessly pursued Voter ID requirements. It's a coincidence, I'm sure, motivated only by the purest of hearts.)
posted by RedOrGreen at 3:14 PM on April 2, 2014

If politicians are corrupt, that's why we have impeachment,

Which depends upon the will of the legislature, at best an indirect representation of either justice or the popular will. Its history is not pleasant. The two times impeachment has been employed against Presidents, it has been for grossly political purposes. A number of visibly and obviously corrupt presidents, by contrast, have gone unimpeached. (I'm not talking about Nixon resigning before he could be impeached.)

ethics investigations,

See above.

and the most important tool of all: regularly held elections.

Which can be heavily influenced by things like voter ID laws, Voting Rights Acts being struck down in part or in toto, and, oh yes, money.

You seem to be arguing from the standpoint that the system is designed to work and demonstrates technical merits towards working. Actual history and the lived experiences of your interlocutors would seem to contradict many of your views.

Statements like this one -- I don't think there is that much corruption. -- rely on a similarly technocratic, rather unexamined definition of terms like "corruption."

And this: What I mean by that is the politician who represents $Rich_Suburb is probably a guy who is going to want to protect $Rich_Suburb's interests because the politician wants to be re-elected, even if the residents never give him a dime. $Rich_Resident's donation isn't getting favorable legislation when the representative was going to vote that way anyhow.

This is simply misaimed. People are worried about more than a local representative being elected, they are worried about the quite visible, empirically demonstrable influence of private money on election outcomes. Your just-so story, which quite tellingly has no actual candidate name in it, does not beat real statistics. Your technocratic complacency is unlikely to stifle real concerns about practical outcomes.
posted by kewb at 3:19 PM on April 2, 2014 [6 favorites]

What I don't understand is, the government controls the airwaves, and the airwaves make up a huge part of election expenditures. Why can't we do something there?
posted by ropeladder at 3:27 PM on April 2, 2014

escabeche: I think the people on MeFI who are pissed about this aren't making a legal argument, they're saying that every legal question apart from the most cut-and-dried presents us with a choice about how to interpret the Constitution, and that the consequences for the country of interpreting the Constitution in particular way are terrible. Which is a totally different question from the one before the Court, but a natural one for people to talk about today.

I'd certainly put myself in this category. Roberts used the umpire calling balls and strikes metaphor in his confirmation hearings, and my argument is not that there's anything improper about his strike zone for this particular pitch, but that his strike zone seems to expand or contract in correlation with his own sympathies for the teams involved. There's nothing improper about questioning the judgement of people who judge things for a living even if there's no evidence of a flaw in the legal reasoning. Once you get to the Supreme Court level, you can always work backwards from what outcome you want and cherry-pick what precedents you cite and how you interpret prior rulings.

In this sense, they're all "legislating from the bench", because ultimately their latitude for shaping policy is nearly unrestrained. No, they don't get to unilaterally begin the process of challenging a law, but there will always be outside forces willing to do that for them, so there's not much to that line of reasoning, either.

So yeah, the notion that some people are bringing politics into a purely legal discussion is nonsense. Every one of these justices has an ideology, and all of them are good enough at what they do to craft a legal case to fit how they want to shape our laws. With this in mind, it's totally sensible to focus on things like inconsistencies in how they rule between cases, or how restrained / expansive their jurisprudence is depending on how they feel toward the laws in question. We're not dealing with a deterministic machine that can analyze laws based on mathematical principles or anything.
posted by tonycpsu at 3:28 PM on April 2, 2014 [12 favorites]

What I don't understand is, the government controls the airwaves, and the airwaves make up a huge part of election expenditures. Why can't we do something there?

We used to have a Fairness Doctrine, but Reagan's FCC chair revoked it.
posted by kewb at 3:30 PM on April 2, 2014 [6 favorites]

kewb: it seems misplaced to disparage legal arguments as "technocratic." When we are discussing the law and the design of our system, that is the very essence of legal analysis. To discard such matters as if they are less than important than people's "lived experiences" or "practical outcomes" is fundamentally at odds with legal principles.

The Court has been clear that the only concern is quid pro quo corruption. If you think there is demonstrable evidence of quid pro quo corruption, then there are avenues to address that. But quid pro quo corruption requires a causal nexus between the money and the result. Not just a correlation. And that is what my analogy was intended to show. If I live in a district where the largest employer is a factory, and I want to keep my job, I will likely campaign to protect the factory because I want my constituents to be happy. If the factory owner contributes $2k to my campaign knowing that it is my platform to keep the factory open, there isn't a quid pro quo corruption because I was going to do that anyway. Nor is there a "corrupting influence" from that contribution because I was going to campaign on that platform anyhow.

My comment about not a lot of corruption comes from that. There isn't a lot of quid pro quo going on is my sense, though I could be wrong. My sense is that the overwhelming percentage of campaign funds go to people whose platform you support but whose platform would be that even if you did not support them. In that situation, there is no corruption. I highly doubt and haven't much evidence that there are elected officials who would otherwise vote for X but change to Y because of a large contribution. I just don't see it. But nevertheless the law as upheld by the Court today prevents such large contributions, the limited size of which are unlikely substantial enough to cause that quid pro quo corruption.

But again, if there is quid pro corruption--that is, it is demonstrable corruption instead of people's "fears" or "concerns"--we have the mechanisms to remedy that and CFR is not necessary.

Look, if your beef is that Sheldon Anderson or the Kock Brothers or Pick-Your-Bogeyman has a lot of money to support causes you don't like, there isn't a damn thing you or anyone can do about it as long as we have the First Amendment. You can limit contributions, but you cannot limit individual expenditures. Anderson can buy every billboard in this country and say "close the borders" and there isn't anything anyone can do about that without running afoul of his right to politically express him--which is a primary protection of the First Amendment. If you want to be able to stop political expression you don't like, then you aren't making a legal case or discussing any "practical outcome." You are engaged in a constitutionally unsupportable political fantasy.

But if we want to turn back to this opinion and the law, we are going to have to focus on what you characterize as "technocratic" analysis.
posted by dios at 3:39 PM on April 2, 2014 [4 favorites]

Let's maybe stay away from the rapey metaphors please?
posted by jessamyn (staff) at 3:53 PM on April 2, 2014

What if all campaign donations were required to be anonymous? Donors could contribute to whichever politicians they view as supporting their interests, but politicians could not know who had donated to them. Revealing a donation would be probable cause for a bribery investigation...

I'd back this. In practical terms, it means a lot less people would make donations, because it removes the campaigns' ability to offer "Special tiers" so people can feel like they're above those plebes who donated less, but I'm okay with that.
posted by corb at 3:55 PM on April 2, 2014 [1 favorite]

"it seems misplaced to disparage legal arguments as "technocratic." When we are discussing the law and the design of our system, that is the very essence of legal analysis. To discard such matters as if they are less than important than people's "lived experiences" or "practical outcomes" is fundamentally at odds with legal principles."

While I generally agree with your technocratic/structuralist view of the law, "lived experiences" and "practical outcomes" are what that structure serves — the point is not to have a pretty machine, but rather a machine that "makes" (or discerns) justice, and that justice is a lived experience and a practical outcome.

You're advancing a very narrow philosophy of law, one that's at odds with major chunks of American jurisprudence pretty much all the way back, and doing so as if it's the only reasonable way to view the law. It's not, and it's not even clear that it's the best way to view the law, or the one that provides the best outcomes.
posted by klangklangston at 3:57 PM on April 2, 2014 [8 favorites]

The First Amendment does not literally mention money. It would not have to be changed for campaign finance reform to take place.

The idea that money has anything to do with the First Amendment comes form a court’s interpretation of the First Amendment, and not from the words of the Amendment itself. It’s something they inferred from it. (Because rich, powerful people wanted it that way.)

Even with stare decisis, the SCOTUS is capable of overturning its own past decisions; Lawrence v. Texas, Loving v. Virginia, and Brown v. Board of Education are the cases that spring to mind without doing any looking-up. They wouldn’t have to change the Constitution to reverse their fanciful interpretation of the First Amendment and come back to the real world.
posted by The Underpants Monster at 4:01 PM on April 2, 2014 [6 favorites]

Awesome! Now I feel comfortable that the Supreme Court will back me on my new unlicensed 1.21 gigawatt FM transmitter.
posted by Flunkie at 4:04 PM on April 2, 2014 [3 favorites]

dios, the idea that legislators don't vote directly against their constituent's express wishes is completely laughable. A majority of people in my state favor decriminalizing marijuana, ceasing to use private prisons, and generally reduce penalties for nonviolent offenses. This is in one of the reddest of the red states and is true across the majority of districts.

The private prison lobby here is very strong and gives a lot of money to politicians, so somehow despite the popular support, it never happens. Same with our liquor laws. Corruption is endemic, but the Supreme Court has seen fit to declare that the government can only address specific instances of a specific type of corruption, but must ignore the systemic corruption. It makes about as much sense as the Supreme Court's rulings on standing to challenge illegal wiretapping.

Personally, I believe that there is a compelling government interest in preventing even the appearance of corruption, and limiting campaign finance is indeed the narrowest way to further that interest. It's too bad that the majority of the Court disagrees on the idea that preventing corruption is a compelling governmental interest.
posted by wierdo at 4:21 PM on April 2, 2014 [7 favorites]

"Officer I was just free speeching that scantily clad woman"

"Officer I was just free speeching that guy hanging out on the corner with small plastic bags"
posted by srboisvert at 4:22 PM on April 2, 2014 [3 favorites]

The American Government Is Open For Corruption
posted by homunculus at 4:24 PM on April 2, 2014 [2 favorites]

"this interest must be limited to a specific kind of corruption"

I would like a list of interesting kinds of corruption. And even more, a list of uninteresting kinds of corruption.
posted by IndigoJones at 4:52 PM on April 2, 2014

Freedom of Speech is NOT the Right to Efficacious Political Speech. It is simply the freedom to express your political views verbally. To bring your viewpoint to the marketplace of ideas. SCOTUS is conflating two ideas here.
posted by Benny Andajetz at 4:54 PM on April 2, 2014 [3 favorites]

I wonder how much each of the Justices paid to get nominated.
posted by Sys Rq at 4:55 PM on April 2, 2014 [1 favorite]

I would argue that this effectively an increase in a governance tax which redistributes resources from the wealthy to the media. Popular causes will always be cheaper to advertise because they have a more ready pool of volunteers and social channels of distribution. That a governor or a senator could be compromised for tens of thousands of dollars is an artifact of the artificially low prices for political influence that campaign finance reform has enforced. I hope that this brings the price of political influence more in line with the value. Of course if you reject markets or believe that the rich have absolute class solidarity, then what I said is complete horseshit.
posted by ethansr at 4:58 PM on April 2, 2014 [1 favorite]

(Isn't there a conflict of interest at play here?)
posted by Sys Rq at 4:58 PM on April 2, 2014

Gore actually won the election.

But this isn't telling the whole story. Nader campaigned in swing states, and people in swing states voted for Nader. Florida shouldn't have been as close as it was; Nader's ~100k votes in Florida siphoned away sufficiently many votes from Gore in Florida to set up the Supreme Court throwing the election to the loser. It's not just about getting more votes. It's about getting enough to overcome the right-wing attempts to steal elections.

Nader voters, who were exercising their democratic right to vote for someone other than the two major parties,

Of course they have that right. But someone asked, "what can be done?" I'm saying: Elections have consequences, and we need to change the constitution of the Supreme Court. We're still reaping the consequences of that 2000 election, and I hope that in the future people will be wide-eyed about the effects of de facto throwing states to the GOP in presidential elections.
posted by professor plum with a rope at 4:59 PM on April 2, 2014

What if all campaign donations were required to be anonymous? Donors could contribute to whichever politicians they view as supporting their interests, but politicians could not know who had donated to them. Revealing a donation would be probable cause for a bribery investigation…

This is an utter inversion of the principle at hand for many of us, though; it outlaws verbal expressions of support specifically in order to preserve monetary support.
posted by kewb at 5:03 PM on April 2, 2014 [1 favorite]

So not "money is speech" but "the expenditure of one's own money to support a political cause or candidate is itself a political statement."

In that same loose metaphorical sense, any act at all is potentially a political statement. This is just what's called disorganized thinking in clinical contexts, blurring the boundaries of linguistic categories so much they become meaningless.

The whole point of free speech protection is to free people from fear of being imprisoned and persecuted for expressing their honest opinions and to give them space to organize politically--the hope was partly to promote a broad range of views and to foster tolerance for dissent, bedrock principles of democracy.

But let's be honest with ourselves about what's really probably happening: Saudi, Chinese and Russian oligarchs own most of the capital in our economy now, and these newer authoritarian ideas are probably trickling down on us from them.
posted by saulgoodman at 5:06 PM on April 2, 2014 [5 favorites]

There is a protest action afoot to send the justices who voted in favor a NASCAR-inspired robe.
posted by EmpressCallipygos at 5:06 PM on April 2, 2014

Lawrence Lessig: Originalists Making It Up Again: McCutcheon and ‘Corruption’. The Supreme Court decision ending aggregate limits on political donations was made possible by a dangerous, narrow definition of "corruption" the Framers themselves wouldn't recognize.
posted by homunculus at 5:15 PM on April 2, 2014 [11 favorites]

To those arguing that political contributions are not speech: what if Congress passed a law providing that contributing money to Democrats is a criminal act? Would that be valid under the First Amendment?
posted by brain_drain at 5:47 PM on April 2, 2014

No, because it is not content neutral. Next time try straw, it holds up better.
posted by wierdo at 5:50 PM on April 2, 2014

The First Amendment does not literally mention money. It would not have to be changed for campaign finance reform to take place.

You sure you want to go there? The Constitution also does not literally mention abortion or a right to privacy.
posted by brain_drain at 5:52 PM on April 2, 2014

Furthermore, Congress clearly has taken the power to outlaw giving money to certain causes, even political ones whose connections to terrorism are tenuous.
posted by wierdo at 5:53 PM on April 2, 2014

weirdo: how can it have content if it's not speech? The "content-neutrality" standard presumes we're talking about expression.
posted by brain_drain at 5:53 PM on April 2, 2014

Electricity itself doesn't carry content, yet you wouldn't argue that the government can order the power shut off to a "liberal" newspaper? Or is electricity also speech?
posted by wierdo at 6:02 PM on April 2, 2014

To those arguing that political contributions are not speech: what if Congress passed a law providing that contributing money to Democrats is a criminal act?

Then it would have to be dealt with in the courts as the separate problem that it is?
posted by The Underpants Monster at 6:18 PM on April 2, 2014

I think they are picking for a good fight with the rest of us. I am so freakin sick of these ignorant hogs.
posted by tarantula at 6:26 PM on April 2, 2014

Ignorant hogs? I think big money is a problem in our political system but the Constitutional question is a great deal more complex than many people here seem willing to recognize. "I don't like the results if this is found to be Constitutional, therefore it cannot be Constitutional" is not an argument.
posted by Justinian at 6:33 PM on April 2, 2014

In his TED talk Lessig suggests that in "Lesterland" there are two elections, the first by the election funders, for which candidates must appease to reach the general elction. If our elected officials spend 30-40% of their time seeking money to remain in office and a good part of the rest of their time worrying about it, would that not help them to decide where to place their votes? And the money comes from an incredibly small number of people in our country, likely made smaller by Scotus today.

Lessig's suggestion is that even if there's not "quid pro quo," in a legal sense, that doesn't change the fact that to be elected in this country you need to make the Lesters happy first. And the Lesters do not represent all of us people.

Even if there is no quid pro quo, this, if true, is a curroption of our democracy because a small number of people have a ridiculously outsized impact on the people who can be elected and the votes that they cast.
posted by mapinduzi at 6:42 PM on April 2, 2014 [2 favorites]

It is crushingly sad to me that none of this would have happened if Gore had won in 2000. And we wouldn't have invaded Iraq either.

However, California would have been rendered uninhabitable after the Chinese-American war of 2007.
posted by cosmic.osmo at 6:43 PM on April 2, 2014

The American Government Is Open For Corruption

I knew before clicking that was Charlie Pierce.
I feel like a jaded Gandhi

First they Horrify you
Then they Terrify you
Then they Bore you
(They've already won)
posted by fullerine at 6:47 PM on April 2, 2014

The question is not 'is money speech' or even 'is a monetary campaign contribution a form of speech.' The question is 'is the act of giving money to a political campaign a speech act,' I'd venture.

The answer to all of those questions, I believe, is 'no, of course not, without doing violence to the concepts involved.' The reasoning behind those answers aren't necessarily the same, though, because the questions are different.

Protections on freedom of speech do not protect the speech itself (because that's a meaningless concept), they protect your right as a citizen to perform the act of publicly making that speech, the way I see it, at least.

It's important to be very clear about words and their meanings with this stuff if you want to get to the heart of it.
posted by stavrosthewonderchicken at 7:03 PM on April 2, 2014 [1 favorite]

stavros: Would you say that publishing a newspaper is protected? How about paying someone else to publish a newspaper?
posted by Justinian at 7:13 PM on April 2, 2014

What can the people do?

You could tax the billionaires to within an inch of the lives and maybe they would have a little less free cash to spread around. Of course the billionaires seem to be willing and successful in spending billions on politicians to prevent that ever happening.
posted by JackFlash at 7:23 PM on April 2, 2014 [2 favorites]

The Constitution also does not literally mention...a right to privacy.

I'm not sure what else you think "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" could possibly mean.
posted by one more dead town's last parade at 7:24 PM on April 2, 2014 [6 favorites]

stavros: Would you say that publishing a newspaper is protected? How about paying someone else to publish a newspaper?

My opinions don't really matter, I don't think, but for what it's worth, if what you mean is 'protected by freedom of speech protections' I would say yes and no, respectively.

But another important question to think about is the difference between 'is' and 'should'. I actually don't know enough about ostensible freedom of speech protections in America to talk with any authority about 'is', so I'm really answering those questions with my opinions about 'should'.
posted by stavrosthewonderchicken at 7:31 PM on April 2, 2014 [1 favorite]

Ok, I think that drawing a distinction between "publishing a newspaper" and "paying for a newspaper to be published" is extremely fraught with peril.
posted by Justinian at 7:33 PM on April 2, 2014 [1 favorite]

"The Constitution also does not literally mention...a right to privacy."

Because for the Founders, "privacy" would be a giggle-inducing derivative of "privy," or "shitter."
posted by klangklangston at 7:35 PM on April 2, 2014 [2 favorites]

Ok, I think that drawing a distinction between "publishing a newspaper" and "paying for a newspaper to be published" is extremely fraught with peril.

Most definitely. All of this stuff is. Which makes it fun (and frustrating) to talk about.

But as I get older I increasingly try and focus on the fundamental philosophical questions to figure out, for myself, where I stand, mostly because trying to translate ethical understandings into real-world change is... well, I'm starting to think it might be a losing battle.
posted by stavrosthewonderchicken at 7:40 PM on April 2, 2014 [1 favorite]

Here's a 'guide' to gaming the campaign finance system, pulled from Justice Breyer's dissenting opinion. It does a pretty good job of illustrating what this decision actually changes.
posted by polymath at 7:45 PM on April 2, 2014 [2 favorites]

There was some dabbling with campaign finance reform beginning in 1900's, but the first major campaign reform was in 1971 with FECA.

You're forgetting the Montana state law, the Corrupt Practices Act of 1912, which the Supreme Court struck down in the American Tradition Partnership v. Bullock case. That was a case where the Roberts Court struck down a law approximately a century old--states rights, stare decisis, and precedent be damned!
posted by jonp72 at 7:48 PM on April 2, 2014 [1 favorite]

No one has a right to pay someone else (someone who might be susceptible to economic coercion and exploitation and so might not truly be acting freely) to express political opinions on their behalf.

No one has a right to use their money to discourage people from expressing their own political opinions or independently making up their own minds about political issues. To think otherwise is anti-democratic to its core.

Spending money is not always a political speech act, and even when it's a political act, it's still not a political speech act. The protected part of speech has traditionally been understood to be the content of the speech, not the medium or forum the speech is delivered in, or even the political intent behind it.

To this day, no one has a right to demand the New York times or any other major outlet publish their political opinions, and to confer such rights only to individuals with the biggest bank accounts in effect assures unequal protection under the law, with the speech rights of media owners being enhanced disproportionately by legal protections that disproportionately benefit owners of broadcast monopolies.

Among other things, the original point was more to protect potentially vulnerable people from political persecution and to give them tools to organize political oppositions to the state, if necessary--not to give the wealthy a big leg up in making and defining the political realities for the rest of us.

We traditionally valued (at least on paper) a wide diversity of opinions in the public discourse as a good and an end in itself. The only way to get more diversity is to level the political speech playing field for all comers, not to tip the field completely toward the players with the most money at the start, because we already know those players have at least one interest in common that might potentially cause them to have major ideological blind spots that would therefore bring down the quality of our democratic discourse.
posted by saulgoodman at 8:10 PM on April 2, 2014 [12 favorites]

It is interesting how states have pretty much free reign to conduct elections as they see fit, with a few exceptions related to discrimination, except when it comes to campaign finance. Will they next strike down the laws preventing people from electioneering near polling places?
posted by wierdo at 8:13 PM on April 2, 2014

The Constitution also does not literally mention...a right to privacy.

I'm not sure what else you think "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" could possibly mean.

Do you think the fourth amendment gives a right to privacy that prevents restrictions on contraception? Because no one else in the world does. Even the judges who found such a right to privacy to exist relied on a "penumbra" surrounding several portions of the constitution. To be clear, I'm not arguing that this right is invalid. I'm just cautioning that the "it's not literally in the constitution" argument can be used for good or for evil.
posted by brain_drain at 8:14 PM on April 2, 2014

Electricity itself doesn't carry content, yet you wouldn't argue that the government can order the power shut off to a "liberal" newspaper? Or is electricity also speech?

That's a decent argument, and of course electricity isn't speech. But that's different because supplying a utility is a business activity and not political. Choosing to give money to one candidate or another is a political act. I view it as a sufficiently expressive act to qualify for first amendment protection, and even the liberal SCt judges share that view (going back to Buckley). That said, I think today's decision was wrong because the restrictions that were invalidated were totally reasonable -- though that's a separate question from whether the 1Am applies at all (I think it does).
posted by brain_drain at 8:19 PM on April 2, 2014

Do you think the fourth amendment gives a right to privacy that prevents restrictions on contraception? Because no one else in the world does.

I'm not sure why you're arguing against something I have never said.

Even the judges who found such a right to privacy to exist relied on a "penumbra" surrounding several portions of the constitution. To be clear, I'm not arguing that this right is invalid. I'm just cautioning that the "it's not literally in the constitution" argument can be used for good or for evil.

You explicitly have the right to security in your person, house, papers, and effects, per the text of the Constitution; this is your right to privacy. The idea that the right to privacy in U.S. law was invented in the last century is fantastical.
posted by one more dead town's last parade at 8:21 PM on April 2, 2014 [2 favorites]

brain_drain, it's not really different at all. Money and electricity are both means by which speech can be effected. Using the logic of the current line of CFR cases, the FCC should not be able to prevent someone from operating a television station on any damn frequency they like, as long as they're doing it for political purposes. A TV station is, obviously, as much a means of speech as is money.

But they can, because the regulations apply equally to all. Free speech zones are good enough for the plebes, but not for those with money, apparently.
posted by wierdo at 8:29 PM on April 2, 2014

Perhaps I was not clear. There are cases finding a right to privacy that goes beyond the 4th amendment's limits on searches and seizures. These cases cover the right to contraception, abortion, etc. The constitution does not expressly provide these rights. Courts have inferred them from other constitutional provisions. And that's fine. My point is that arguing "it's not literally in the constitution" is inconsistent with rulings supported by many who support campaign finance reform.
posted by brain_drain at 8:30 PM on April 2, 2014

I've heard the "doesn't explicitly say 'privacy' because to the Founders that meant 'related to the shitter'" theory before, but are you sure about it? It sounds kind of iffy to me. And upon looking it up in the OED, "privacy" in the current sense dates back well before the Founders. In fact the OED doesn't even give a specific "related to the shitter" definition for it at all.

Incidentally, the funniest would-be "related to the shitter" pre-Founders OED cite for "privacy":

"Vespasian during his Privacie, Led such a Life, as was Exemplary."
posted by Flunkie at 8:36 PM on April 2, 2014 [3 favorites]

You explicitly have the right to security in your person, house, papers, and effects, per the text of the Constitution; this is your right to privacy. The idea that the right to privacy in U.S. law was invented in the last century is fantastical.

You've described search and seizure. In one of those annoying turns of phrase, the expression "the right to privacy" doesn't mean your protections against search and seizure, even though the words themselves would certainly make you think it does.

The right to privacy is a generalized right to be left alone that goes far beyond that. It's a statement that there are some things that governments simply have no legitimate business legislating about, such as whether or not married couples use contraception.

And it is, indeed, nowhere found in the text of the constitution.
posted by ROU_Xenophobe at 8:41 PM on April 2, 2014

Or perhaps "I was married with the utmost privacy."
posted by Flunkie at 8:44 PM on April 2, 2014

It's a statement that there are some things that governments simply have no legitimate business legislating about, such as whether or not married couples use contraception.

You're describing a seizure of one's effects (and arguably, one's person) without a compelling government interest, something which isn't "nowhere found in the text."
posted by one more dead town's last parade at 8:45 PM on April 2, 2014

The very Supreme Court justices who built the foundation for the right to privacy disagree with you. See, e.g., Griswold v Connecticut's references to "penumbra" and "emanations" of the right to privacy (in the contraception context) from other constitutional provisions. To take another example, a woman's right to choose is no more explicit in the constitution than the notion that "expression" includes political contributions. You can't be a literalist when you like it and apply looser interpretation when you don't.
posted by brain_drain at 9:05 PM on April 2, 2014

"Where enough money calls the tune, the general public will not be heard." - BREYER, J., dissenting
posted by josephtate at 9:07 PM on April 2, 2014 [3 favorites]

Well the next shutdown should be all kinds of fun with even more money to primary Republicans from the right should they not toe the line.
posted by jason_steakums at 9:18 PM on April 2, 2014 [1 favorite]

I understand how keeping people from spending money on political commercials is limiting speech. But how is keeping someone from giving money to a candidate limiting speech? That makes no sense.
posted by professor plum with a rope at 9:19 PM on April 2, 2014 [1 favorite]

Because for the Founders, "privacy" would be a giggle-inducing derivative of "privy," or "shitter."

This gives "privy council" a whole new meaning.
posted by cosmic.osmo at 9:23 PM on April 2, 2014

You can't be a literalist when you like it and apply looser interpretation when you don't.

Again, you really like disagreeing with things I'm not saying.
posted by one more dead town's last parade at 9:30 PM on April 2, 2014

Incidentally, we've long banned buying people's votes outright, which the current uncorrected precedent must presumably find unconstitutional. Or maybe we should ban indirect methods of vote buying that stop short of the ballot box. Standing political parties and partisan media campaigns introduce a lot of potential for cronyism and implicit quid pro quo. Political parties were not even expected to exist, let alone to become an entrenched part of our political process, at the time the words in the constitution were drafted. I mean, if you want to get all originalist on it, the current state of affairs--the party system itself--is likely a corruption of the original intent.

brain_drain: The reason a woman's right to privacy is implicit in the sense of Roe v. Wade ultimately does come down to the "secure in your persons" stuff I think. How could you possibly effectively police and enforce laws against abortion without forcing people to report regularly to the state about their private sexual behaviors and their pregnancy status, in some cases with mandatory vaginal probes, or else desperate women might just secretly use one of the myriad (more dangerous) folk remedies that induce miscarriage, as desperate women have for millenia. Miscarriages are so common, the abortions would just amount to a little statistical noise in the mix.
posted by saulgoodman at 9:32 PM on April 2, 2014 [1 favorite]

Political parties were not even expected to exist, let alone to become an entrenched part of our political process, at the time the words in the constitution were drafted.

Mass democracy wasn't expected to exist.

brain_drain: The reason a woman's right to privacy is implicit in the sense of Roe v. Wade ultimately does come down to the "secure in your persons" stuff I think.

No. Just plain, flat, no. Even the people writing the decisions didn't say that. You can read Griswold yourself; it's freely available. Probably even, completely for free, with commentary that will explain when it's using legal language that might not mean what it appears to mean.

How could you possibly effectively police and enforce laws against abortion without forcing people to report regularly to the state about their private sexual behaviors

You can't possibly be serious. Abortion was, for reals, prohibited across the US for a long time, and at no point did the proscriptions require women to report for fertility checks or to report their sexual activity. And the proscriptions against abortion were effective enough to kill a few thousand women every year.

You don't need to make stuff up or ponder curiously what the rationales for Griswold or Roe are or conjure up gedankenexperiments from The Handmaid's Tale, or wonder whether the decisions rest solely on the search and seizure clause of the fourth amendment. You could, instead, take the clearly insane step of reading the decisions yourself, at which point you will learn otherwise.
posted by ROU_Xenophobe at 10:07 PM on April 2, 2014 [1 favorite]

This gives "privy council" a whole new meaning.

Not really so new. Pity the poor Groom of the Stool.
posted by mr_roboto at 10:19 PM on April 2, 2014

In that same loose metaphorical sense, any act at all is potentially a political statement.

Exactly. Parades, rallies, art exhibits, graffiti, hacktivism, killing someone you disagree with, all of these are political statements. And because of the First Amendment, these acts can't be made illegal without a compelling reason, usually "the act violates someone else's rights more egregiously than preventing the act would violate your own." Murder obviously falls under this category, but graffiti seems like more of a gray area -- for instance, I imagine some people would support Banksy's art becoming publically protected even if it was on someone else's building, presumably with the owner being compensated for the appropriation (kind of like eminent domain).

The question is, given that some people have a lot more money than others, should their ability to pay for political speech be restricted? It clearly restricts their own right to free speech -- after all, imagine setting the cap so low that you couldn't even pay for a full-page newspaper ad. So, is there someone else whose rights are being violated even worse by allowing large political donations? Maybe so, if you consider the donations to be bribes, but that isn't direct violation; it's more like paying politicians in the hopes that they'll violate their constituents' rights in your favor, once they take office. And that's still an unproven assumption, since I suspect that most political spending is more like "support candidates who already agree with me" than "bribe candidates into agreeing with me."
posted by Rangi at 10:20 PM on April 2, 2014

No one has a right to pay someone else (someone who might be susceptible to economic coercion and exploitation and so might not truly be acting freely) to express political opinions on their behalf.

To this day, no one has a right to demand the New York times or any other major outlet publish their political opinions...

Yes they do, and yes they do. The "someone else" is free to decline the money, and the New York Times is free to refuse the demand, but there's no law saying one can't make the offer. Buying ads in newspapers or radio stations or TV broadcasts, or renting venues for political rallies, or paying to have billboards printed and kept up, are all instances of paying other people to express your speech.
posted by Rangi at 10:26 PM on April 2, 2014

Charles G. Koch: I'm Fighting to Restore a Free Society [WARNING: NEWSCORP]
posted by goethean at 5:48 AM on April 3, 2014

No. Just plain, flat, no. Even the people writing the decisions didn't say that.

Well, maybe it wasn't an explicit part of the legal reasoning in Roe, but regardless, it's true as a practical matter. The government would have to intrude on people's private lives much more invasively to implement serious antiabortion legal policies; anticipating and acknowledging that should be part of the legal reasoning. It's what makes the issue more a personal, private issue than some others, and considering sex and pregnancy a special case where issues of privacy may weigh more heavily definitely was in play in the arguments in Roe, but let's not get into an abortion derail.
posted by saulgoodman at 6:05 AM on April 3, 2014

Yes they do, and yes they do. The "someone else" is free to decline the money,

You could mount the same defense for vote buying. But the fact is, people are not always at equal liberty to decline money.
posted by saulgoodman at 6:09 AM on April 3, 2014 [1 favorite]

The government would have to intrude on people's private lives much more invasively to implement serious antiabortion legal policies

Except in real life, where they did have serious antiabortion legal policies that did no such thing.
posted by ROU_Xenophobe at 6:39 AM on April 3, 2014

Instead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents.

As opposed to that libertarian icon, Josef Stalin, that gave the Koch family so much of the foundation for its fortune...
posted by jonp72 at 10:09 AM on April 3, 2014 [3 favorites]

Instead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents.

I like how "buying elections" becomes "free and open debate."
posted by scody at 10:36 AM on April 3, 2014 [4 favorites]

Except in real life, where they did have serious antiabortion legal policies that did no such thing.

Like I said, any effective legal policy banning abortion would have to be unconstitutionally intrusive, IMO, as historically, even during the few times such bans have existed, it's estimated actual abortion rates were even higher than today. There are accounts of abortion methods used all the way back to antiquity, and for most of history, they've been uncontroversial, though more dangerous for the women involved than modern medicalized abortions. But more importantly, most of these methods are indistinguishable from ordinary miscarriages, and those are so common, how could you ever hope to distinguish natural miscarriages from induced ones, or even to know a miscarriage of any kind occurred without snooping into parts of our lives where the law shouldn't be going?

D'oh. So much for not fueling an abortion derail.
posted by saulgoodman at 1:07 PM on April 3, 2014

Koch wrote: More than 200 years ago, Thomas Jefferson warned that this could happen. "The natural progress of things," Jefferson wrote, "is for liberty to yield and government to gain ground."

Jefferson also wrote: "I hope we shall crush… in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country."
posted by kewb at 2:54 PM on April 3, 2014 [11 favorites]

Campaign finance as free speech would be if David Koch bought a chunk of air time, sat in front of a TV camera, and said, "I'm David Koch, and I support [Candidate X], [Party Y], and [Legislation Z] because [Reasons A, B, and C]," followed by an announcer saying "[Candidate X] and [Party Y] do not endorse this message."
posted by The Underpants Monster at 6:15 PM on April 3, 2014

I'm very late to the party here, but I think a large part of our problems and disagreements on this matter stem from conflating several rather different things under the term "political speech".

Iwould argue that there is a difference between:

1) Person X proclaiming their political position, their favored candidate, etc.

And

2) Person X hiring an actor and writing team to produce an advertisement that most effectively promotes thier political position, favored candidate, etc.

And

3) Person X giving a politician money oustentibly for the purpose of the politician doing 2.

I would suspect that most of us would agree that 1 should be essentially unlimited. If the Koch brothers want to get on TV and tell us all why they think taxation is theft, or that we should all vote for Republicans, or whatever I'd say that's entirely their right and restricting that would be a clear and very wrong violation of the priniple of free speech.

Two seems a lot less clear cut, though still enough like free speech that I'd suspect most of us are rather wary of infringing there, and would argue that infringements in that area, if they are to exist at all, must be limited and painstakingly justified.

But three seems not even remotely like speech to me and to many other people. Moreover, it brings us smack into the territory of appearance of impropriety and corruption.

To my mind the conservative wing of the Court moved the goalposts. Rather than holding that we should generally be trying to avoid impropriety and corruptive activity, the Court argued that the law must prove one very specific, and incredibly rare, type of corruption. That the same conservative branch didn't hold voter impediment bills to that same sort of rigorous test gives us even more the appearance that they are seeking a rather disturbing outcome.

Arguing that case three is not only political speech, but also political speech as pure and deserving of absolute protection as one seems to be another example of moving goalposts.
posted by sotonohito at 7:16 AM on April 4, 2014 [5 favorites]

Except in real life, where they did have serious antiabortion legal policies that did no such thing.

Intervening in private medical decisions is an invasive intrusion on privacy.
posted by spaltavian at 7:25 AM on April 4, 2014 [2 favorites]

Want to cut the rich’s influence? Take away their money!

There is one glaring problem with my plan, of course, which is that Congress is already captured by wealthy interests, and is not inclined to tax them. But all I’m saying is that would-be campaign finance reformers ought to give up on their lost cause and shift their energies toward confiscation and redistribution.

posted by tonycpsu at 7:49 AM on April 4, 2014 [2 favorites]

When the government taxes citizens, some more than others, on the basis of their income, it is not taking away their speech.

I would LOVE to see a class action lawsuit based on this very concept. I suspect it would get libertarians so hot they would need fainting couches.
posted by gern at 9:13 AM on April 4, 2014 [1 favorite]

Arguing that case three is not only political speech, but also political speech as pure and deserving of absolute protection as one seems to be another example of moving goalposts.
posted by sotonohito 3 ½ hours ago

Except, that is not at all what happened. Read the opinion.

Arguing that case three is not only political speech

All 9 justices agree that contributions are political expression protected by the First Amendment. That's not a conclusion only the majority arrived at. They all agreed. Same is in Buckley v. Valeo and other opinions the Supreme Court.

but also political speech as pure and deserving of absolute protection

The majority of the Court did not say contributions are "deserving of absolute protection." Nowhere in the opinion is that stated. That is a fiction.

It is very clear in the opinion that all 9 justices agreed that contributions are political expression deserving of constitutional protection under the First Amendment. It is equally clear that all 9 justices agreed that the protection is not absolute, but can be restricted when the restriction is narrowly tailored and is the least restrictive means to achieve a compelling governmental interest. The only split is over how that test applied in this circumstance.

So they all 9 agreed it is protected by the First Amendment and they all 9 agreed it is not absolute and can be limited. Your claim is completely inconsistent with what the Court said.

***
I don't understand why people are still wrestling with this issue of whether campaign contributions constitute political expression that is protected by the First Amendment. I linked to Buckley v. Valeo and the opinion this case. You can read the opinions and have any confusion cleared up. That is, after all, the purpose of these opinions: to explain the court's reasoning. There have been several attempts at explaining it here in this thread, but people still seem to think that the issue is whether money is coextensive with speaking. That isn't the issue at all. I don't understand how many more times this point needs to be explained, although if some effort was made to actually understand what the Court is saying, it would go along way towards answering a lot of the objections here.
posted by dios at 10:57 AM on April 4, 2014

I am not confused.
I have read the opnions.
I understand the opinions.
The opinions do not need to be explained further to me.
I believe the opinions to be ill-considered in comparison to the other options available to the Court when interpreting the law as written.
That is an issue I am concerned with, which I believe to be both important and germane.
posted by The Underpants Monster at 11:34 AM on April 4, 2014 [1 favorite]

Underpants Monster, you previously argued "The First Amendment does not literally mention money. It would not have to be changed for campaign finance reform to take place." I question how someone who has read the opinions and understands the issues would not understand that the matter does not turn on "money" as you are claiming but political expression. The Court in Buckley goes on for pages and pages about contributions, conduct, speech, and expression explaining this matter. It is very clearly laid out. If you understand the Court's reasoning, you wouldn't be responding with the comment I just quoted because it is not a response to the legal matter before the Court.

The First Amendment protects political expression. Indeed, it is the most fundamental of protections in the context of a democracy. Limiting the number of campaigns to whom one can contribute limits the quantity of political expression and therefore runs afoul of the First Amendment and a mountain of jurisprudence. The only legal question is the application of strict scrutiny to particular factual scenarios.

To think that you have landed upon an option for interpreting the First Amendment that somehow evaded all of the Justices, all of these attorneys arguing before the Court, and most of academia is the height of hubris. Maybe in your perfect world you would create a system differently, but that's not really the point.
posted by dios at 1:07 PM on April 4, 2014

Limiting the number of campaigns to whom one can contribute limits the quantity of political expression and therefore runs afoul of the First Amendment and a mountain of jurisprudence.

Limiting the location of protesters to specifically approved "free speech zones" limits the quantity of political expression...but seems to get a pass from the court.

There are a vast number of ways making "political statements" is limited and regulated, as you would quickly learn if you attempted to engage in political protest simply however you saw fit.

To think that you have landed upon an option for interpreting the First Amendment that somehow evaded all of the Justices, all of these attorneys arguing before the Court, and most of academia is the height of hubris.

No one here thinks that the other possibilities simply "evaded" the Court; many of us seem to think that the Court saw several possible interpretations and chose the one they preferred, discarding the rest, while many of us preferred options that the Supreme Court seems to have discarded. That is not hubris; that is a difference of opinion.

It seems odd to me that you would post this FPP and then disagree so vehemently with so many posters about the scope of the ensuing discussion and seek to limit that discussion to very narrow terms. If you want a nuanced discussion of the specific questions (and only those questions) which seem to interest you, or if you simply wish to educate the masses regarding this decision, in either case I think a more appropriate avenue would be for you to Get Your Own Blog.
posted by mstokes650 at 1:33 PM on April 4, 2014 [6 favorites]

mstoke650: I'm not trying to limit the scope of the discussion. I am expressing frustration that people are asking questions or making arguments that are inconsistent with the posted materials. In other words, RTFA. It would be as if there was a post made about a particular writer's efforts to understand how gravity effects objects at extreme temperatures and a bunch of people responded by claiming that the objects were reacting not because of gravity but because of some Aristotelian notion of an object moving towards its natural place. Newtonian gravity is established in science and is not questioned (as far as I know), so firing off comments ignorant of that fact can be frustrating, no? That political contributions constitute political expression that is protected by the First Amendment is about as constitutionally established as a matter can be. It literally is not questioned. The only issue here is whether the government's First Amendment restriction passes the appropriate test to be justified.

That is evident from RTFA. So when you come in here and see people bemoaning "how can they say money is speech, money isn't speech" those border on being off-topic comments. At the very least, they are topics which are without a doubt ignorant of or answered by reading the link. Or when you see people talk about how the Court found that contributions can never be limited or have absolute protection or other such absolute claims, it is clear they never read or understood the ruling they are criticizing. And if it happened a couple times before--as happened here--any misunderstanding is corrected, that's fine. But to see people still making flatly nonsense claims is why I responded (see my comment to sonihito).

This isn't about--how you frame it--"the Court saw several possible interpretations and chose the one they preferred, discarding the rest, while many of us preferred options that the Supreme Court seems to have discarded." No, the Court did not see a possible interpretation where political contributions are not protected by the First Amendment. That was never a "possible interpretation." It simply isn't. The matter is established (and understandably so). Breyer's dissent repeatedly calls contributions constitutionally protected, and he goes on at length at the importance of the constitutional protection of political expression. The options that were considered was (1) whether there was a compelling governmental interest to limit the number of potential people to whom contributions can be made in a cycle, and if so, what is the breadth and application of that interest; (2) whether such a limitation was the least restrictive means to advance that interest; (3) whether such a limitation was narrowly tailored to advance that interest; and (4) whether strict scrutiny or "closely drawn" test applies. All of the criticisms that act as if it is ludicrous to consider contributions as protected under the First Amendment (or, more ignorant yet, "money is speech") are signs of hubris because those making those claims are acting as if these poor idiots on the Court cannot see a self-evident fact. Trying to cloak that behind "difference of opinion" is inadequate. That only works when you have two reasonable opinions in conflict.
posted by dios at 3:25 PM on April 4, 2014

dios: That is evident from RTFA. So when you come in here and see people bemoaning "how can they say money is speech, money isn't speech" those border on being off-topic comments.

Supreme Court justices have the unique power to transmute ideology into law. Because of this, no conversation about whether their ideology unduly influences how they rule on the cases before them is off topic.

The fact that money and speech are in many ways treated equally under the law is not based on some fundamental measurable force of the universe, it's based on case law, built on top of more case law, built on top of still more case law, all the way down until you get to the original interpretations of the Constitution. When you consider that each finding in that pyramid can be built on cherry-picked precedents, novel interpretations of the law, and simply making shit up (there's really nothing other than norms and public shame that keep them from doing any or all of these things) it's totally right to question not only the outcome of this case, but of the entire sequence of cases that led to the decision in McCutcheon or any other case that comes before the court.

I happen to agree with you to a point, in that, given the prior cases in this arena and the tradition of stare decisis, it would have been quite difficult to rule on this case in a way that preserved the restrictions of the BCRA. To do would have further entrenched the inconsistencies between that law and Buckley, among others in a way that would probably be unsustainable without SCOTUS eventually overturning its own prior rulings. But the court does indeed overrule itself from time to time, and it's totally legitimate to consider whether cases like Buckley that liken money to speech were correctly decided, or should be overruled.

I therefore find your attempts to shout down anyone who dares to talk about this ruling as if it were anything other than the result of mathematical equation built on top of measurable data to be quite insidious. Supreme Court justices are human beings who sometimes make bad decisions that are nonetheless not provably wrong from a legal perspective, and I think we can have that discussion in the same thread while legal eagles like yourself prefer to argue the Xs and Os of legal tradecraft.
posted by tonycpsu at 3:58 PM on April 4, 2014 [2 favorites]

@dios:

I don't pretend to argue or understand the law as written, but I argue merely that from a standpoint of right and wrong granting the payment of cash to a politician for the ostensible purpose of said politician advertising themselves the same status and level of protection that we grant a person expressing their own political opinion is not a good thing.

I argue that the three sorts of political expression I outlined earlier (personal speech, paying others to speak on your behalf, and paying politicians so that politicians can pay others to speak on their behalf) are three different things or at least three things between which meaningful differences can be drawn. That to restrict the third is not to invalidate or weaken the first.

If, as you so vociferously argue, the current state of the law in the USA is that cash payments to politicians are considered political speech of the most urgently protected sort then I argue that the law in the USA is wrong and should be changed. The upper classes should not be permitted to simply buy politicians.

As for the Court, I note only that the conservative wing, which in this case argued that political expression (in the form of wads of cash given to politicians), must be protected in the broadest ways possible on the grounds that political expression (in the form of wads of cash given to politicians) is sacrosanct, but they are not always so interested in protecting political expression.

The same conservative wing is not at all protective of political expression (in the form of black and poor people voting), or political expression (in the form of dirty hippies wanting to protest outside of "Free Speech Zones"). In fact, from my standpoint, it appears that the conservative wing of the court is not actually motivated by a desire to protect political expression (in general), but rather by a motive to protect the elites. if their motive had been the protection of political expression (in general) it seems to me that they would not have voted to deny poor/black people the right to vote or dirty hippies the right to protest.

Heck, in USA v Apel Scalia went out of his way to deride the concept that the First Amendment might apply to political expression (in the form of dirty hippies protesting). His derision of the First vanishes completely when it applies to political expression (in the form of wads of cash given to politicians).

If the conservative wing of the court had consistently argued for the broadest possible interpretation of political expression and the maximal protection for that broadest possible interpretation I'd still disagree with the decision that money is speech. But at least I could agree that they were being consistent. Instead I see the conservative wing mostly united against political expression, except for those instances where that term can be stretched to cover the wealthy buying political favors.
posted by sotonohito at 4:50 PM on April 4, 2014

dios: "I am expressing frustration that people are asking questions or making arguments that are inconsistent with the posted materials. In other words, RTFA."

Supreme Court precedent is pretty complicated, and understanding it requires more than just reading a single opinion. You can't expect people to understand the full import of the Supreme Court precedent regarding money in terms of political speech before commenting in a thread like this.

"The matter is established (and understandably so). Breyer's dissent repeatedly calls contributions constitutionally protected, and he goes on at length at the importance of the constitutional protection of political expression.

He goes on at length about the importance of political expression, and he assumes that money is a kind of political expression; but why does he assume that? That seems like a valid question. It might be a question answered by an in-depth perusal of Supreme Court precedent - in fact I don't doubt that it is - but it's still a question that people here have a right to ask, and it's understandable that they will. You have to meet people where they are, not where you'd like them to be.
posted by koeselitz at 5:26 PM on April 4, 2014 [2 favorites]

That political contributions constitute political expression that is protected by the First Amendment is about as constitutionally established as a matter can be. It literally is not questioned.

It's questioned by me, and that's all I give a good goddamn about.

The law is an ass.
posted by stavrosthewonderchicken at 7:56 PM on April 4, 2014 [1 favorite]

It might be a question answered by an in-depth perusal of Supreme Court precedent - in fact I don't doubt that it is - but it's still a question that people here have a right to ask, and it's understandable that they will. You have to meet people where they are, not where you'd like them to be.

The thing is, dio isn't answering them with case law; he's answering with a mishmash of case law and really questionable, or at least not universally shared assumptions about "how politicians act." A lot of his argument has been based on his vocal presumption that money is less effective an influence on politicians than constituent demands, and, inversely, that elections are determined much more by the wishes of voters rather than by campaign spending.

There's an obvious problem in the second part, since campaign spending is often designed to shift voters' wishes. Going by the "rational incentives" assumptions dio seems to be using, political advertising must have some power to convince or it would be bizarre that ever-increasing amounts of money are spent on it and not on other methods of campaigning. And then there's the even more problematic assumption of equal and transparent access to information on the party of all politicians and all voters, and many more problems.
posted by kewb at 4:27 AM on April 5, 2014

It's interesting how any and all pushback on this ruling is characterized by some as being ignorant. Some of us disagree with the majority that preventing the appearance of corruption is in fact a compelling governmental interest for which no more narrowly tailored restriction on speech has been proposed.

And yes, in my mind there seems to be an inconsistency among certain members of the court in their application of strict scrutiny that appears to be results oriented. For some reason when the beneficiary of the law in question is of means, they manage to find that there is a less restrictive means even when no party in the case has argued such, they decide that the governmental interest is not compelling, or whatever. But somehow when the beneficiary is an alleged criminal or one of the poors, Congress can very nearly do no wrong.

And that's just when they inconsistently apply strict scrutiny rather than just deciding that strict scrutiny is not the appropriate standard because the rights of the poors aren't fundamental enough to deserve it.

Hilariously enough, it's very similar to the particular issue at hand here. Much like the justices are blind to the corruption and/or the appearance of corruption that everyone not involved in politics finds plainly obvious, judges and members of the bar are blind to the Supreme Court's blatantly results-oriented legal reasoning of late even though it is plainly obvious to the layperson.
posted by wierdo at 8:57 PM on April 5, 2014 [4 favorites]

The Roberts Court Just Endorsed Many Of Nixon’s Most Corrupt Campaign Finance Schemes
posted by the man of twists and turns at 10:21 PM on April 14, 2014

Tom Levenson: John Roberts and the Color of Money
posted by zombieflanders at 7:50 AM on April 16, 2014

Political TV advertising in the USA: scofflaw broadcasters hide the dark money of political influence
posted by homunculus at 11:20 AM on May 2, 2014

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