You Are Now Free to Speak About Politics

Why do some people fear a less restricted debate?

As Democrats headed for what promised to be a midterm election fiasco of historic proportions, a pre-emptive excuse began to circulate: It was all the Supreme Court’s fault. In an August Washington Post column, Katrina vanden Heuvel, editor of The Nation, said Citizens United v. Federal Election Commission, the January decision in which the Court overturned restrictions on political speech by corporations, had created a “very alarming” situation in which democracy (not to mention Democrats) would be swept away by “a flood of corporate campaign cash” because “there is no way private citizens can match the resources available to corporations to make their voices heard.” In a radio address around the same time, President Barack Obama dreaded “a flood of attack ads run by shadowy groups with harmless-sounding names,” unleashed by a ruling that “allows big corporations to spend unlimited amounts of money to influence our elections.”

In September a front-page New York Times story seemed to confirm these antediluvian prophecies. The paper reported that “outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television.” The Times worried that “a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going.” It said “Democratic officials” believed “corporate interests, newly emboldened by regulatory changes,” were trying to “buy the election.” In short, the spending patterns seemed to be “a fulfillment of Democrats’ worst fears after the Supreme Court’s ruling in the Citizens United case.”

Except that, as the Times conceded in the next paragraph, “it is not clear…whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm.” Other factors—“notably, a political environment that favors Republicans”—might be at work. In fact, the spending cited in the story was mostly by rich individuals or by groups organized under Section 527 of the Internal Revenue Code, both of which were legal before Citizens United. 

An October story in The Washington Post likewise suggested that Citizens United helped explain the Republicans’ spending lead but was hazy as to how. “The outside group spending is primarily being driven by the political climate,” a campaign finance expert told the Post. “Organized groups are looking at great opportunity, and therefore there’s great interest to spend money to influence the election.”

When you get beyond the scaremongering about deluges of dollars, the practical consequences of Citizens United so far seem to be much less dramatic than its critics predicted. But how could they not be? “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation,” Justice John Paul Stevens warned in his dissent. “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” The New York Times said the “radical” and “disastrous” decision “strikes at the heart of democracy.” Rep. Alan Grayson (D-Fla.) said Citizens United was “the worst Supreme Court decision since Dred Scott,” because “it leads us all down the road to serfdom.”

President Obama managed to outdo them all, declaring that he “can’t think of anything more devastating to the public interest.” To Obama, apparently, the prospect of a less restricted political debate was more horrifying than an economic collapse, a military coup, or a nuclear war. Although it’s too early to predict exactly what will happen as a result of Citizens United, it seems safe to say that plenty of things are more harmful to the public interest. Among them are laws that seek to silence some so that others may be heard.

Everything Is Incorporated

The over-the-top reactions to Citizens United reflect a view of corporations as giant, soulless automatons that are fine for producing goods and services in a regulated environment but bound to wreak havoc if let loose in the halls of political power. That view obscures the fact that corporations, no matter how large or profit-driven, are by definition associations of individuals who have joined together for a common purpose. It also misleadingly suggests that behemoths such as Wal-Mart and Exxon Mobil are typical corporations, when in fact the vast majority of the 6 million or so corporations registered in the United States are small businesses or nonprofits.

“In 2010 almost everything is incorporated,” notes Allison Hayward, a former George Mason University law professor who recently became vice president of policy at the Center for Competitive Politics, which favors deregulation of political speech. “Anything you want to do as a group with other people—apart from the context where partnerships might work, like practicing law—you’re going to do through a corporate form of some kind.” Civil society, including churches, charitable organizations, and grassroots political groups of every interest and ideology, consists largely of corporations. 

For an illustration, one need look no further than the case the Supreme Court decided. Citizens United, founded by the conservative activist Floyd Brown in 1988, is not a huge corporation seeking subsidies or permission to pollute. It is a nonprofit, ideological organization with an annual budget of $12 million that wanted to run a documentary about Hillary Clinton on pay-per-view TV. It was forbidden to do so, under threat of fine and imprisonment, because a) Clinton was running for the Democratic presidential nomination, and b) the documentary made her look bad. The movie therefore violated the Bipartisan Campaign Reform Act of 2002, a.k.a. McCain-Feingold, which banned “electioneering communications,” defined as TV or radio ads sponsored by unions or corporations that mention a candidate for federal office within 30 days of a primary or 60 days of a general election.

Contrary to all the rhetoric about corporations drowning out the voice of the people, corporations are the voice of the people—people who pool their resources because they hate Hillary Clinton, love the rainforest, worry about the national debt, support gay marriage, think abortion is murder, oppose gun control, or even believe that corporations have too much influence on politics. McCain-Feingold told these groups they were not allowed to talk about their issues close to an election if the discussion happened to mention any politicians running for federal office.

The ban on electioneering communications was supposed to strengthen a pre-existing ban on spending by unions or corporations “in connection with” a federal election. That prohibition, originally imposed by Congress in 1947, was incorporated into the Federal Election Campaign Act (FECA) of 1971, which Congress amended in 1974 following the Watergate scandal to impose new restrictions on contributions and spending, require detailed recordkeeping and reporting by political committees, and create the Federal Election Commission (FEC) to oversee the new regulatory system.

In the 1976 case Buckley v. Valeo, the Supreme Court upheld FECA’s limits on campaign contributions (such as the ceiling on how much you can give a particular candidate during one election cycle) but overturned its limits on spending by candidates and independent spending by individuals and groups, which it said “place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.” The Court did not directly address the ban on election-related expenditures by unions and corporations. But to avoid unconstitutional vagueness, it ruled that the election-related speech covered by the law should be limited to “express advocacy”—messages explicitly advocating a candidate’s election or defeat. According to a footnote in the decision, that meant “communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’ ” This definition, as interpreted by lower courts and the FEC during the next two decades, gave rise to “issue ads,” the target of the McCain-Feingold ban on electioneering communications.

The Unbearable Cacophony

Issue ads, which became especially conspicuous in the mid-1990s, avoided express advocacy by eschewing the “magic words” that the Supreme Court had identified as forbidden. Many of them nevertheless managed to communicate an opinion about the merits of electing particular candidates. A 1997 report by the University of Pennsylvania’s Annenberg Public Policy Center estimated that political parties, labor unions, and interest groups spent about $150 million on issue ads during the 1996 campaign, compared to about $400 million in advertising by the candidates themselves.

Issue ads typically faulted candidates for taking the wrong positions in debates important to the sponsoring groups. The AFL-CIO would run radio ads noting that a given congressman “voted with Newt Gingrich to cut college loans, while giving tax breaks to the wealthy” and urging listeners to “tell him his priorities are wrong.” A radio ad sponsored by Americans for Limited Terms charged Sen. John Warner (R-Va.) with “defying the will of the people of Virginia and America” by opposing term limits. Handgun Control Inc. criticized members of Congress for voting against the federal “assault weapon” ban, while the American Legion’s Citizens Flag Alliance criticized them for voting against the Flag Protection Amendment.

“Parties and advocacy groups spent more than a third as much as did the candidates themselves communicating with the public during the 1996 election,” the Annenberg Center noted. “This is unprecedented, and represents an important change in the culture of campaigns. Candidates now share the election megaphone with a cacophony of other voices.”

Many politicians were not inclined to share, finding the cacophony unbearable. “This bill is about slowing the ad war,” Sen. Maria Cantwell (D-Wash.) said in 2002, explaining her support for McCain-Feingold. “It is about calling sham issue ads what they really are. It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves.” 

The provision covering electioneering communications was introduced by Sen. Paul Wellstone (D-Minn.), who argued that without it McCain-Feingold’s ban on “soft money” contributions to political parties (unregulated donations ostensibly earmarked for general party-building efforts) would be easily evaded. Sen. John McCain (R-Ariz.) and the bill’s other chief sponsor, Sen. Russell Feingold (D-Wis.), initially resisted the Wellstone amendment because they worried the provision would be overturned by the Supreme Court. President George W. Bush had similar concerns but signed the bill anyway.

At first the fears about McCain-Feingold’s legal vulnerability seemed overblown. In the 2003 case McConnell v. Federal Election Commission, the Supreme Court rejected a First Amendment challenge to the law, citing as precedent Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld a law preventing corporations from running ads in support of candidates for state office. According to Austin, such restrictions were justified by the need to guard against “the corrosive and distorting effects of immense aggregations of wealth” that “have little or no correlation to the public’s support for the corporation’s political ideas.”

But four years after McConnell, the Court ruled that the ban on electioneering communications was unconstitutional when applied to “genuine issue ads.” That case, FEC v. Wisconsin Right to Life, involved radio and TV spots in which an anti-abortion group encouraged voters to contact the state’s two senators and ask them to oppose filibusters of judicial nominations. The group wanted to continue airing the ads through the 2004 election but feared running afoul of McCain-Feingold. The case prompted the Court to narrow the reach of the ban on electioneering communications so that it applied only to express advocacy or its “functional equivalent,” meaning an ad “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

This new rule was narrower but vaguer than the one it replaced, which covered any ad mentioning a candidate close to an election. It was also vaguer than the much-ridiculed “magic words” definition, which the Court had adopted in Buckley to avoid ambiguity that would chill constitutionally protected speech. After Wisconsin Right to Life, interest groups had to guess whether the FEC would consider their messages the “functional equivalent” of express advocacy, based on a two-part, 11-factor balancing test developed by the commission to implement the new standard. If they guessed wrong, they could face fines or even prison.

‘That’s Pretty Incredible’

This was the legal environment Citizens United confronted in January 2008, when it released Hillary: The Movie. The group had planned to make the documentary available on pay-per-view cable and to promote it with TV ads. Wary of possible civil and criminal penalties, it asked a federal judge to declare that the First Amendment protected its right to distribute and advertise the movie, notwithstanding the ban on electioneering communications. Citizens United was literally asking for permission to speak freely. The court said no, agreeing with the FEC that Hillary: The Movie should be banned from TV during election season precisely because voters might consider it relevant.

Hillary: The Movie is not subtle. It depicts Clinton, whose picture is frequently accompanied by ominous background music, as a lying, conniving, vindictive, venal, scandal-plagued, power-hungry, Constitution-flouting “European socialist” unqualified to be president. “The movie, in essence, is a feature-length negative advertisement that urges viewers to vote against Senator Clinton for President,” Justice Anthony Kennedy wrote for the majority in Citizens United

Unlike Wisconsin Right to Life’s issue ads, the Court concluded, Hillary: The Movie was the functional equivalent of express advocacy. Because it was so one-sided and unrelentingly negative, the majority said, it was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The upshot was that Citizens United could not legally put Hillary: The Movie on TV while its subject was running for president, although it could have presented a more flattering (but not too flattering!) documentary about her without running afoul of the law. Furthermore, because both the ban on electioneering communications and the ban on express advocacy included an exemption for media corporations, a news outlet such as CNN or Fox News could have produced and presented Hillary: The Movie without fear of prosecution. This confusing state of affairs was hard to reconcile with a constitutional amendment that says “Congress shall make no law…abridging the freedom of speech.”

Confronted with these facts, the Court could have created a new loophole designed for speech resembling Hillary: The Movie. It could have said the ban on electioneering communications did not apply to full-length movies or that it did not cover pay-per-view TV. It could have declared Citizens United a media corporation. But any such solution would have raised new questions, compounding the uncertainty that encourages self-censorship. “The FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests,” Kennedy wrote in Citizens United. “If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question.…This is an unprecedented governmental intervention into the realm of speech.”

Yet the Obama administration had argued that Congress could go even further if it chose. During oral arguments in March 2009, Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart whether the Constitution would allow Congress to ban material like Hillary: The Movie not just on radio or TV but in other media as well, such as DVDs, the Internet, and books. Stewart said yes, noting that the ban on express advocacy was not limited to radio and TV. “That’s pretty incredible,” Alito replied. He then pressed Stewart to say whether a book containing express advocacy could be banned if it were published by a corporation (as books typically are). After much hemming and hawing, Stewart again said yes. He did note that the ban on express advocacy made an exception for media corporations such as book publishers, without committing himself on whether such an exception was constitutionally required.

Justice Antonin Scalia did a double take: “I’m a little disoriented here, Mr. Stewart. We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press? That’s what we’re interpreting here?”

The discussion of book bans was a turning point in the case. By exposing the breadth of the censorship power claimed by the government, it spurred the justices to schedule a highly unusual second round of oral arguments to consider whether Austin should be overturned. The ultimate result was a 5-to-4 decision that overturned the rule against express advocacy as well as the ban on electioneering communications.

‘Nobody Uses Books to Campaign’

During the second round of oral arguments in September 2009, then-Solicitor General Elena Kagan tried to avoid Malcolm Stewart’s mistake of claiming the power to ban books. “The government’s answer has changed,” she said to laughter when Justice Ruth Bader Ginsburg brought up the subject. Although the express advocacy ban “does cover full-length books,” Kagan said, “there would be a quite good as-applied challenge to any attempt to apply [it] in that context” because (as she explained during her Supreme Court confirmation hearings last summer) “nobody uses books in order to campaign”—a surprising assertion, given all the biographies, manifestos, and policy books that candidates and their supporters have produced over the years. Kagan added that the FEC so far had not tried to ban any books. That reassurance prompted Chief Justice John Roberts to object that “we don’t put our First Amendment rights in the hands of FEC bureaucrats.”

If books might be out of bounds, Roberts asked, “what about a pamphlet?” Kagan said “a pamphlet would be different,” since “a pamphlet is pretty classic electioneering.” This newly invented constitutional distinction between books and pamphlets raised new questions. “When does a pamphlet become a book?” asks former FEC Chairman Brad Smith, co-founder of the Center for Competitive Politics. “Is Thomas Paine’s Common Sense, which is about 50 pages, a pamphlet or a book? How could you decide?” During Kagan’s confirmation hearings in June, Sen. Orrin Hatch (R-Utah) asked her whether she really believed that “the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page.”

Kagan faced another problem in making her case to the Supreme Court. While the rationale for the donation limits upheld in Buckley was preventing official corruption, the rationale for the spending ban upheld in Austin was preventing corporations from using their “immense aggregations of wealth” to skew the political debate. But bans on corporate speech apply to small businesses and nonprofit organizations that are far from wealthy, while rich individuals are free to spend all the money they want on whatever messages they choose. Furthermore, the Court generally has looked askance at the notion that the government should try to keep the political debate properly balanced, given all the subjective judgments such a task requires. In a 1996 law review article, Kagan deemed it well established that “the government may not restrict the speech of some to enhance the speech of others.” She called this “the Buckley principle,” the reason why the Court had rejected spending limits in that case.

That understanding of First Amendment law helps explain why Kagan ditched Austin’s anti-distortion rationale in Citizens United, instead arguing that restrictions on corporate speech are necessary to protect dissenting shareholders and to prevent the corruption that might result if politicians feel grateful for helpful independent expenditures. This strategy caused Chief Justice Roberts to remark that “you are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted in the expenditure context.” The Court ultimately rejected both arguments, stating categorically that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” 

A ‘Marionette Congress’

That conclusion strikes critics of the decision as disingenuous or naive. “Corporations, particularly rogue corporations, are going to be able to use fear of expenditures to get incumbent congressmen to toe the line,” says Bob Edgar, a former Pennsylvania congressman who heads the pro-regulation group Common Cause. “A corporation could come in and say, ‘We didn’t like the way you voted on health care that first time around. If you don’t change your vote on public option or on single payer, we’re going to invest X number of dollars to make sure that we recycle you.’ ”

Although an explicit quid pro quo of this sort could be prosecuted as extortion, bribery, or honest services fraud, Edgar says “all they have to do is walk in and imply that they’re going to do it; the proof of illegality would be very difficult.” Brad Smith suggests a legislator could neutralize such threats and simultaneously score points with voters by going public: “What candidate is not going to want to come out and say, ‘These guys from Halliburton threatened me, but I stood up to them?’ ” Edgar laughs at the notion, saying, “You tell me how many congressmen would do that.”

Lawrence Lessig, the Harvard law professor who co-founded Change Congress in 2008 to reduce the influence of money in politics, likewise argues that Citizens United allows companies to get their way through subtle threats that will never be a matter of public record. “Nobody has to disclose a threat,” he says. “Nobody has to disclose this kind of indirect influence.” Lessig imagines such threats “creating this marionette Congress” where “the game becomes how to dance in the right way to make sure that the corporations are entering the campaign in the way you want them to.”

But which way is that? Given the public’s anxieties about excessive corporate influence, couldn’t favorable ads sponsored by big companies be a liability rather than an asset? Lessig has anticipated that objection. “Why not just allow anyone to speak, and measure a candidate by the company he keeps?” he wrote in The New Republic in March. “If Exxon is spending $10,000,000 to support a candidate, won’t the voters of the district recognize that…and vote against the candidate because of that fact alone? Yet it is here that the Court’s practical insight into the ways of politics is most strained. If Exxon wants candidate X to win, but recognizes that a $10,000,000 expenditure by it would be toxic for candidate X, then why wouldn’t [it] spend the $10,000,000 on candidate Y?” By this logic, corporations emboldened by Citizens United will get legislators to vote their way by threatening to run ads praising them and calling for their re-election.

There are several reasons to think Lessig’s fears are overwrought. First, reformers insisted that “sham issue ads” had made a joke out of the ban on independent expenditures by unions and corporations. According to the arguments they used to pass McCain-Feingold in 2002, we should be no worse off now than we were before the law took effect. 

Second, even before Citizens United, most states allowed unlimited corporate spending in state races. Lessig concedes “there’s no good evidence” public officials in those states are any more corrupt than public officials in states that restrict corporate spending, although he argues that the danger is more acute on Capitol Hill because there is more influence to peddle. 

Third, the data on campaign contributions do not suggest that corporations are eager to spend more money to influence politicians by influencing elections. Most businesses do not bother to make campaign contributions at all, and when they do they typically stay well below the legal limits. Even among Fortune 500 companies, only 60 percent have political action committees, and they usually do not pay PAC overhead from their general treasuries (as they are legally permitted to do), a practice that could effectively double the money available for donations.

“The bureaucratic Fortune 500 companies have very little interest in spending a lot more money” on political campaigns, says Brad Smith. “They’d much rather spend their money lobbying. They think it’s more effective. It doesn’t upset their customers. It doesn’t upset dissenting shareholders.” Smith thinks it’s more likely that smaller businesses, the ones that never had PACs, will now test the campaign-spending waters, on their own or through trade associations.

The recent controversy over Target’s $150,000 contribution to MN Forward, a Minnesota organization that favors tax and spending cuts, illustrates the risks that companies run by getting involved in elections, even indirectly. In August, Target’s CEO publicly apologized for the donation, which had provoked loud complaints from gay rights activists, customers, employees, and shareholders because MN Forward was running ads in support of a Republican gubernatorial candidate who opposes gay marriage.

Allison Hayward of the Center for Competitive Politics notes that unions do not have to worry about this sort of backlash. “I think unions will make much better use of Citizens United than corporations will,” she says. “Unions are political by nature. A union is an organization of people bound together to get something out of somebody else. There’s nobody to offend.” In fact, as Mother Jones reporter Suzy Khimm pointed out in June, unions were the first organizations to take advantage of Citizens United, running express advocacy ads during primary campaigns in Arkansas and Pennsylvania. In a listing of the biggest independent spenders compiled by the Center for Responsive Politics in September, unions were three of the top five; the other two were the anti-abortion Susan B. Anthony List and the Democratic Congressional Campaign Committee. 

The Deterrent Effect

Critics of Citizens United did not wait for the prophesied flood of corporate spending to materialize before proposing remedies to it. One idea is to expand public funding of political campaigns. Bob Edgar and Lawrence Lessig both support the Fair Elections Now Act, which would give taxpayer money to House and Senate candidates who collect a certain number of signatures and raise a certain amount of money in small contributions. Participating candidates would agree to spending limits, but participation would be voluntary, as required by Buckley. And unlike Arizona’s campaign finance system, which faces a First Amendment challenge that is now before the Supreme Court, the law would not give candidates additional money based on how much their opponents spend.

The idea is to let candidates run viable campaigns without depending on corporate support. As Lessig put it in a Web video recorded the day the Citizens United ruling was released, “We need a political system where people can trust that decisions Congress makes are decisions based on the merits, on what makes sense, or what the people in their district want, and not what the funders demand.”

The first thing to note about the Fair Elections Now Act as a response to independent spending is that it does nothing about independent spending. Businesses and interest groups would still be free to spend all they wanted on ads supporting or opposing candidates. “It doesn’t make any sense at all as a response to Citizens United,” says Hayward. Furthermore, the idea that Congress can restore taxpayers’ faith in it by forcing them to subsidize politicians they despise is counterintuitive, to say the least.

Hayward, who recently reviewed the relevant government reports and academic studies for a friend-of-the-court brief supporting the challenge to Arizona’s campaign subsidies, found little evidence that public funding provides measurable benefits. It “doesn’t necessarily make for better candidates or less corruption,” she says. “You don’t see any sort of payback in terms of better government or less partisanship or a more responsive legislature.” 

Smith has a deeper objection. “There should be essentially a judicial doctrine of separation of campaign and state, just like we have a doctrine of separation of church and state,” he says. “You fundamentally alter the relationship between the governed and the governors when you say to the ruling people, ‘You don’t have to go back to these folks to get your money. We’ll just keep supplying you in perpetuity, and you can vote yourself bigger subsidies to run your campaigns.’ ” 

While the Fair Elections Now Act was introduced before Citizens United, the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act was crafted by Sen. Charles Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) as a response to the ruling. Under the guise of transparency, the bill, which was approved by the House in June but narrowly blocked by Republicans in the Senate a month later, would deter speech through onerous regulatory requirements. The stand-by-your-ad statements mandated by the bill could consume half of a 30-second TV spot, while a requirement that nonprofit interest groups disclose even those donors who do not give money for ads could make people think twice before supporting political organizations. 

Perhaps the most outrageous aspect of the legislation (which Smith’s Center for Competitive Politics dubbed the Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections Act) is its bias in favor of organizations that tend to favor Democrats. The DISCLOSE Act would bar independent spending by corporations that have 20 percent or more foreign ownership but leave the speech of international labor unions unrestricted. It would censor companies with government contracts but not labor unions that represent public employees or nonprofits that receive government grants.

The bill’s backers did throw one traditionally Republican lobby a bone. To win approval in the House, they exempted the National Rifle Association from the new reporting requirements. When this loophole prompted a public outcry, it was expanded to include any national nonprofit organization with more than 500,000 members that is at least 10 years old. Thus a measure that was supposedly aimed at curbing the influence of powerful, well-established interest groups was skewed to favor powerful, well-established interest groups.

The bill’s supporters were transparent in at least one respect: They admitted their aim was to discourage speech they do not like. Schumer, upon unveiling the bill in April, said “the deterrent effect should not be underestimated.” Opposing an amendment that would have delayed the bill’s implementation until after this year’s elections (so the FEC would have time to issue regulations clarifying its requirements), Rep. Michael Capuano (D-Mass.) said he wanted people to worry about a fine or prison sentence when they dare to speak ill of politicians. “I hope it chills out all—not one side, all sides!” he said during a mark-up session in May. “I have no problem whatsoever keeping everybody out. If I could keep all outside entities out, I would.”

Trust Issues

If the DISCLOSE Act is revived and passed after the 2010 elections, it is likely to be overturned by the Supreme Court. Lessig cited that prospect as one reason to oppose what he viewed as a “puny” and “pathetic” response to Citizens United that “squandered” an important opportunity for reform. His favored solution would avoid the constitutional problem in a straightforward way: by changing the Constitution. In March, Lessig proposed the following constitutional amendment: “Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.” Since corporations are not citizens, he explains, this amendment would authorize Congress to reinstate the restrictions imposed by McCain-Feingold.

Lessig, who sees himself as a free speech champion, is remarkably cavalier about his amendment’s practical impact. When I suggest that it would allow Congress to prevent corporate-owned news outlets from discussing elections, he says, “The Free Press Clause should, if properly interpreted, create immunity for those entities from being regulated so long as they’re functioning in a press-like role.” But wouldn’t his amendment override the Free Press Clause? “That’s a good point,” he says, “and it might well be important to make sure that nothing is intended to weaken or to draw into question the immunity granted by the First Amendment to the press. But that’s certainly not my intent.”

Once enacted, of course, the amendment would have to be applied by the courts as written. Assuming there’s a media exemption, they would have to decide when an organization is serving a sufficiently “press-like role” to qualify for it. They would also have to decide when a “limit” on “campaign spending,” which is authorized by the amendment, is so low that it amounts to a “ban,” which is prohibited by the amendment. And depending on how they define “campaign spending,” the amendment could either allow sweeping restrictions on freedom of speech or return us to the situation before McCain-Feingold was enacted, when corporations could say what they wanted as long as they avoided the verboten “magic words.” In that case, the tremendous effort required to ratify a constitutional amendment would come to naught. “There are lots of ways to get this wrong,” Lessig concedes.

Although it is highly improbable that anything like Lessig’s half-baked amendment would ever be ratified, the impulse behind it is worth examining, because it is the impulse behind McCain-Feingold, the DISCLOSE Act, and every other effort to purify politics by curtailing the influence of “special interests.” Lessig says his aim is not to restrict speech but to “restore the integrity of Congress so that we can believe once again in this democracy.” He worries that “most people have a deeply skeptical view about Congress’s independence,” which discourages them from getting involved in the political process. He wants to “restore public trust in government” and “restore the people’s faith in our democracy.” You hear the same rhetoric from other reformers, whether Barack Obama or John McCain.

One problem with this rationale is that it justifies speech restrictions based on the public’s perception of corruption, whether or not the perception is accurate. In this respect it tracks the reasoning of Buckley, which said campaign finance regulations are justified by the need to prevent “the reality or appearance of corruption.” Lessig argues that to some extent the appearance is the reality. “If people believe money is buying results,” he says, “then whether money is buying results or not, that’s going to be enough to staunch the willingness of people to become engaged. I do think perception is a critical factor.” But the upshot is that people like Lessig help establish a legal basis for the restrictions they favor simply by talking about corruption all the time.

Another problem is that restoring public trust in government is not as uncontroversial a proposition as Lessig seems to think. He argues that his cause should attract support from across the political spectrum because everyone has an interest in a properly functioning democracy where citizens are confident that public officials are representing the interests of their constituents. But surely there is such a thing as too much faith in government, and people of different political persuasions are bound to draw that line in different places. Those who think government should be much smaller than it is may not want voters to have any more faith in it than they already do.

Consider how people with different views on this question react to poll numbers that show weak and waning faith in Congress: The same data Lessig sees as proof of a failing democracy are interpreted by others as evidence that voters are wising up. “There’s a problem with the basic idea that people should really trust their government,” says Smith. “Our country was founded on people not trusting their government.”

‘Forget the Voters’

In practice, restricting speech to prevent the appearance of corruption is hard to distinguish from restricting speech to prevent the wrong side from winning a debate. The “improper influence over a candidate’s position or an officeholder’s action” that the Supreme Court cited in Buckley as an appropriate target of campaign regulation very easily shades into an “improper influence” on people’s opinions, especially when it comes to independent expenditures. This was the Austin rationale that the Court rejected in Citizens United: the fear that corporations will use their wealth to “distort” the political debate.

Common Cause, for instance, says “balance on the political playing field” requires closing “the political spending gap between corporations and labor.” When Obama insists that “powerful interests must not be allowed to drown out the voices of ordinary citizens,” it’s clear he is worried about too much speech of the wrong sort. The support for restrictions on corporate speech, Hayward says, is driven largely by the conviction that “corporations are going to be advocating bad things, because corporations are at the root of environmental degradation, the financial meltdown, and all this. There’s a group of people who just know that corporations are on the other side; they’re bad.”

The flaw in this thinking is not just that big companies, despite their size and their commercial motives, may be right about things from time to time. And it’s not just that the groups resisting the agendas of big companies—groups that, depending on the issue, may be demanding regulation or defending the free market—are corporations too. The most important point people overlook when they insist on treating speech like a disastrous deluge is that advocacy has no impact unless it persuades people. As Obama emphasized toward the end of yet another jeremiad against Citizens United in September, “You can make sure that the tens of millions of dollars spent on misleading ads do not drown out your voice. Because no matter how many ads they run—no matter how many elections they try to buy—the power to determine the fate of this country doesn’t lie in their hands. It lies in yours.”

Less than a week after Citizens United, Rep. Donna Edwards (D-Md.) gave a speech on the floor of the House in which she explained why she was introducing a constitutional amendment aimed at reversing the decision. “If the [corporations don’t] like what this congresswoman is doing,” she said, “they’ll just forget the voters, buy TV ads, send robocalls, send a lot of mail, and beat her in November. A law won’t fix this; we have to fix it in the Constitution.” Can corporations really “forget the voters” when the whole point of their TV ads, robocalls, and direct mail is to convince voters that Congress would be a better institution without Donna Edwards?

This may be one of those occasions when the corporations are right. The last thing Congress needs is yet another legislator who equates her own electoral prospects with the fate of the republic, let alone one who wants to amend the Constitution so that it better serves her political career. But even when the arguments for requiring balance in political debate have a less self-interested tinge, there is no escaping the fact that we are discussing the merits of censorship, a debate the Framers thought they had settled. “What these guys are basically saying,” Smith observes, “is ‘we don’t like the First Amendment because we don’t like the speech of particular people.’ Essentially they’re pitting their wisdom against the wisdom of the Founders. The basic idea of the First Amendment was that this is the kind of thing we really don’t trust the government to do.” 

Senior Editor Jacob Sullum (jsullum@reason.com) is a nationally syndicated columnist.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Is there a better experiement or demonstration of unintneded consequences than plotting number of campaign finance laws against quality of candidates? Every few years, more campaign finance laws, and I would say worser and worser candidates.

  • cynical||

    I thought that was the intended consequence.

  • ||

    by the way, with technology (cookies) I would think I would see my name as a donor when I am on the site...maybe flashing with gold stars around it, and a little emoticon with a big wang waving about with a FREEDOM banner tied at the top. not that I need any recognition

  • ||

    I think it's pretty clear what Reason's stance on flashing text and images is....

  • ||

    And embedded videos.

  • carpet cleaning sacramento ca||

    Yup pretty clear indeed

  • ||

    Having actually run for office, the Texas State Legislature, I know firsthand what a pain in the ass campaign finance regulation can be. The paperwork alone can be enough to dissuade good people who might otherwise would have run for office. I'm not saying candidates should be allowed to bribe the electorate or receive contributions from the local Mob Boss, but some of these ristrictions are pretty unnecessary.

  • MNG||

    I think by public interest he meant the discernment of the public interest, the public discourse so to speak and his point was that having shadowy groups pump the media with misinformation is a great threat to that. Democracy is like capitalism in that both only work the way they are supposed to with an informed public.

  • Realist||

    Democracy is like capitalism in that both only work the way they are supposed to with an informed, intelligent public.

  • LarryA||

    1) If these groups are “shadowy” why do they have websites and make other efforts to tell people who they are? One of the main “evil corporations” targeted by Mc-F was the National Rifle Association. No shadows there.
    2) As soon as any group puts out “misinformation” (in the sense that their statements are incorrect) everybody else in the media has a target to shoot at, and absent Mc-F, plenty of ammo.
    3) The whole point of advertising, whether by candidates, campaigns, parties, or independent groups, is to inform the public. How can limiting the amount of information available enhance public knowledge?

  • ||

    "The whole point of advertising, whether by candidates, campaigns, parties, or independent groups, is to inform the public"

    Do you not watch tv? I'm pretty sure, at least judging by the last election, the whole point of advertising is to lie in the most blatant way possible while maintaining a single shred of truth that provides a veneer of honesty completely at odds with the reality of the ad. One could reasonably say that the entire purpose of advertising is to misinform and confuse as to the issues. But be my guest to equate advertising with truth.

  • Ray Pew||

    Do you not watch tv? I'm pretty sure, at least judging by the last election, the whole point of advertising is to lie in the most blatant way possible while maintaining a single shred of truth that provides a veneer of honesty completely at odds with the reality of the ad. One could reasonably say that the entire purpose of advertising is to misinform and confuse as to the issues. But be my guest to equate advertising with truth.

    Do you not watch TV? What you describe matches, to a T, every political debate and interview of elected officials. Shall we limit their speech as well, since we can't trust them to tell the truth or refrain from obfuscation?

  • Paul||

    Do you not watch tv?

    I watch tv, and yet I didn't see a single political ad this season. Not one. Not a single one. Ask me how I did that?

  • Mr. FIFY||

    Truth-in-advertising laws should be enforced when a politician makes promises on the campaign trail, then lies his/her ass off when they get in/get reelected.

    And make it *hurt*. At least five years, no parole, in the nastiest prison available.

  • Paul||

    If I were king of everything, as my one and only act I would hold an election, and everyone who showed up to run for office would get arrested.

  • Mr. FIFY||

    Better idea. Too bad we can't implement it.

  • JohnD||

    As opposed to non shadowy groups like unions? Moron!

  • MNG||

    "Citizens United, founded by the conservative activist Floyd Brown in 1988, is not a huge corporation seeking subsidies or permission to pollute."

    No, it's just likely funded by same.

  • 35N4P2BYY||

    [Citation Please]

  • Paul||

    And remember we already know, and I have Shrike to back me up on this, America's top-tier capitalists are all leftys...

  • ||

    Other than the Kochs, yep. Although if you're talking about Fortune 500 corporations (as an aggregate), you're not going to find a lot of bleeding heart liberals among them.

  • Paul||

  • JohnD||

    Unless you are talking about media corporations

  • ||

    Of course they dance right past the real reasons politicians are corrupt. They don't want to discuss the immense power that politicians have to barter for cash, because that would lead to suggestions that government shouldn't have all the power that it does; that's a place they just don't want to go.

    Then there's the plain fact that all that power tends to draw large numbers of corrupt parasitic scumbags. I doubt that many of them have to be pushed into taking a bribe (in whatever form it comes); pfah, most of them demand bribes. "Nice little business you've got here; be a shame if anything happened to it."

  • MNG||

    Good points. I've often thought the most compelling arguments to be made to leftists about keeping government small and less powerful is simply to point to their own rhetoric about the tremondous influence the wealthy inevitably have over government.

  • Dello||

    The problem is that the lefty answer is always "Hang the Rich!" instead of "Less Government Power!".

    It's simply a matter of having the right people in charge, you see...

  • prolefeed||

    Many politicians were not inclined to share, finding the cacophony unbearable. “This bill is about slowing the ad war,” Sen. Maria Cantwell (D-Wash.) said in 2002, explaining her support for McCain-Feingold.

    Yes, an incumbent wanting to cut down on ads for both sides, thus giving an incumbent with name recognition an advantage over their challenger, is not self-interested.

    It's all about protecting the public by telling the public to STFU.

  • MNG||

    But don't incumbents also have a significantly better ability to raise money for ads?

    Also, if one is for public financing (which I am not) that kind of undercuts the "incumbent protection" argument imo as they are essentially for institutionalizing funding for opponents...

  • sevo||

    MNG|11.9.10 @ 12:55PM|#
    "Also, if one is for public financing (which I am not) that kind of undercuts the "incumbent protection" argument imo as they are essentially for institutionalizing funding for opponents..."
    Are you claiming that 'public financing' would provide funding for the opposition to a greater degree than 'private financing'?

  • Mr. FIFY||

    NO public financing *unless*:

    Every candidate gets the same amount of money. And ALL candidates - write-ins, third-party, unaffiliated, whatever - get the SAME access to the media and - especially - debates.

    I can hear the wailing and gnashing from Team Red/Team Blue as I type.

  • ||

    ^This. That's why I voted for repealing public financing in Florida this past election; I'm sick of 3rd party candidates not named Charlie Crist getting screwed when it comes to media attention and the debates.

  • Goobs||

    The problem with public financing is that you have to have rules on who gets the financing. You can't give 100 Million to every guy who says he is running for congress. So you set standards. And those standards coincidentally protect incumbents and their runners up.

  • sevo||

    That's the reason for my question to MNG.

  • prolefeed||

    Hillary: The Movie is not subtle. It depicts Clinton, whose picture is frequently accompanied by ominous background music, as a lying, conniving, vindictive, venal, scandal-plagued, power-hungry, Constitution-flouting “European socialist” unqualified to be president.

    I thought truth was always a defense against accusations of slander.

  • Mr. FIFY||

    ^^^this^^^ is why liberals threw a hissy-fit over the Hillary movie.

  • prolefeed||

    Plus, those descriptions @12:49 seem to be requisite qualities to be elected, based on who actually gets in.

    Can someone at Reason please fix the fucking "reply to this" feature so I can actually reply to threaded comments? It's not working.

  • prolefeed||

    Having actually run for office, the Texas State Legislature, I know firsthand what a pain in the ass campaign finance regulation can be. The paperwork alone can be enough to dissuade good people who might otherwise would have run for office. I'm not saying candidates should be allowed to bribe the electorate or receive contributions from the local Mob Boss, but some of these ristrictions are pretty unnecessary.

    It should be illegal to take a bribe. But, the restrictions on speech intended to enforce that ban on bribes are blatantly unconstitutional, violating the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution.

    It should be up to the government to prove that a candidate has taken a bribe. The candidate should not be compelled to provide any evidence at all to help the government build their case. No mandatory disclosures of campaign contributions, or who gave them, or how the money was spent.

    Basically, the government is assuming candidates are criminals, and forcing them to provide proof upfront of their innocence, in violation of the principles of presumption of innocence, the burden of proof being on the accuser, of the right to speak unhindered, of the right to not furnish evidence that may be used against you, of the right to not turn over said evidence without a warrant based on probable cause, and on and on.

  • Goobs||

    I don't see a problem in forcing candidates to detail the names of every organization or person that funds them- regardless of the amount.

    And I don't see a problem with requiring that every organization giving to a candidate must list the people funding it. And if they take donations from another foundation, then that foundation must list the people funding it.

    In the end, transparency is important, and if you want to participate in candidate funding, you need to be willing to list your name. *shrug*

  • sevo||

    Disagreed. For exactly the same reason as the secret ballot; holding an unpopular opinion or supporting an unpopular candidate can be dangerous.
    I don't have to tell you who I vote for and I shouldn't have to tell you who I support.
    Read the candidates arguments. Take it or leave it.

  • ||

    Yeah, great. While you're at it maybe I should have been required to disclose the number of hairs on my nut-sack when I ran for the Texas Legislature back in 2004.

  • Dello||

    Speaking of the CU ruling, I still see lefty talk about it being a corporate takeover of government. So somebody help me here, in case I got it wrong.

    Corporations (and individuals) have always been able to spend an unlimited amount of money on BEHALF of a candidate or position, so long as said candidate didn't have any say about how it was spent (otherwise it would be considered a direct contribution, which DOES have limits). All the the CU ruling did is allow the already unlimited money to be spent within 30 days of the election, which was banned before the ruling.

    Am I close?

    Thanks

  • cynical||

    “The Free Press Clause should, if properly interpreted, create immunity for those entities from being regulated so long as they’re functioning in a press-like role.”

    Wow, yet another iteration of an idea that irritates me to no end: the idea that "freedom of the press" protects journalists, not printing presses. It's an idea that needs to die a horrific torture porn death.

    If they wrote the Bill of Rights today, they would write "freedom of the Internet" or "freedom of publishing". The press is a technology, or the specific implementation of the technology -- at the time of America's founding, it was a powerful tool for liberalizing society, as the internet is today. All "freedom of the press" means is that freedom of expression applies whether the medium is unaided voice, printed word, VHS tapes, electronic communications, radio waves, or anything else.

    The idea that "freedom of the press" is established to protect a certain self-important industry by granting them rights above and beyond those available to ordinary citizens is illiberal, elitist, morally repellant. Worse, it undermines the right by essentially stripping its full exercise from people whose published messages don't fall under what is commonly considered "journalism". And then journalists attempt to use it to grant themselves rights unrelated to expression and that could not be applied to the ordinary person -- the right to break laws in order to get their stories, etc. Right now establishment journalism is one of the greatest threats to freedom of the press.

  • Zeb||

    This is the point I keep trying to make to my dipshit friends who still think it was a bad decision.
    I don't understand why people are always talking about free speech in regards to this when "free press" is much more the issue. I think that the first amendment should be interpreted so that "speech" just means opening your mouth and talking and "press" means every other means available to communicate or broadcast information.

  • ||

    I made my own political ad once intended for the radio. I intended to use my own cash to put it on a local radio station. I was told I wasn't allowed to do this without all sorts of complicated disclosures that I didn't really understand. When I can't just spend $150 of my own money to buy 30 seconds of radio time in support of a candidate without jumping through hoops there is something very wrong with this system and there is no way you can claim we have free speech in this country.

  • ||

    Well no, and you can't own a nuclear weapon either. There's reasons why disclosures are needed that aren't entirely bad, nor would net freedom necessarily be increased by not having them.

  • ||

    Let me get this straight, me buying radio time in support of a candidate is equivalent in some way to my owning a nuclear weapon? (this aside from the fact that the "so you think people should be free to own nuclear weapons?" argument is bogus on its face in as much as anyone with the where with all - the inclination, capability, facilities, access to necessary materials and so on - to build such a weapon is not going to be deterred by any law against building or possessing them.)

  • JohnD||

    Michaela, that is the most moronic comparision I have ever heard. You do understand what hyperbole is, don't you?

  • RyanXXX||

    OK, why does Reason run a new article about how great the Kochtopus and Citizens United are EVERY SINGLE DAY???

    The Dems tried to use them as boogeymen as an election technique, and they failed. So it's not really a story anymore. At this point Reason just seems defensive about something.

  • Zeb||

    It is the cover story of the magazine, dipshit. And it continues to be an interesting story as a large number of people continue to willfully misunderstand both the ruling and the first amendment.

  • RyanXXX||

    There are bigger things going on. It's not really a story anymore. And it's getting boring as hell.

  • Paul||

    Bigger things than the first amendment?

  • Mr. FIFY||

    Sounds like Ryan is okay with government telling certain groups they can't release a movie about a political candidate... unless it's by Michael Moore.

  • sevo||

    RyanXXX|11.9.10 @ 1:55PM|#
    "OK, why does Reason run a new article about how great the Kochtopus and Citizens United are EVERY SINGLE DAY???"

    Probably because some people continue to see the issue as one of "kochtopus" against "others", rather than a constitutional matter.
    Ring a bell?

  • RyanXXX||

    I have no bell! Damn you!

  • ||

    Probably because David Koch sits on the board. It is unbelievable that anybody would possibly think that granting corporation the right to spend unlimited amounts of money to influence political campaigns is a good thing.

  • rakeed madolberschultz||

    True. Now, if individuals spend unlimited amounts of money, that's fine and no threat at all. But once it's several people working together legally, then shit is going to spiral out of control. Also, because I'm a progressive, I'm programmed to completely turn off my critical faculties after someone mentions the word "corporation".

  • JohnD||

    As opposed to unions? Fool!

  • Eric||

    Let's compare political influence through campaign ads versus lobbying.

    1) Money spent...
    Obama - "tens of millions of dollars" will be spent on campaign ads.

    Lee Hamilton, Director of the Center on Congress at Indiana University, former member of the U.S. House of Representatives for 34 years - "$3.5 billion was spent on lobbying the government in 2009."

    http://www.timesgazette.com/ma.....eID=175611

    Why are corporations and special interest groups spending billions more on influencing politics through lobbying the government than on lobbying the American people through campaign ads?
    Likely because they get a better bang for their buck.
    It is not government that should fear the manipulated ignorance of the American voter when comparing these dollar amounts on how politics is influence my money.
    It is the voter that should fear the manipulated ignorance of the government when corporations and special interest groups are so willing to throw around that kind of money.

    2) What is more ethical?
    Running anonymous campaign ads (every voter could easily ignore) to influence politics, or lobbying the government in anonymity to the voter?

    3) What is more "devastating to the public interest?"
    The entire point of lobbying is to promote the interest of something other than the public's. Even corporations that advocate for free markets, lobby primarily because free markets are better for their own interests.

    4) Who would lose the most if the money spent by corporations influencing politics shifted from going directly to politicians, and switched to going indirectly to the American voter?
    Obama and his cronies. Let's face it, we would all do the same in his position, because of selfish interest, not public interest.

    5) Who would gain the most if the money spent by corporations influencing politics shifted from going directly to politicians, and switched to going indirectly to the American voter?
    Dollar for dollar? The media.
    Political Influence? The voter.

    The public should demand optional anonymity for political ads because it removes the barriers on political influence that forced corporations and special interest groups into the the backdoor of politics.

  • ||

    Shit Sullum, you had to come up with an explanation so comprehensive that I felt compelled to send it to the girlfriend, and now we're fighting on instant messenger about it. Good going.

  • ||

    I envy you having a girlfriend that is willing to talk politics

  • Paul||

    The discussion of book bans was a turning point in the case. By exposing the breadth of the censorship power claimed by the government, it spurred the justices to schedule a highly unusual second round of oral arguments to consider whether Austin should be overturned.

    The disturbing thing is that it ever got this far. The more disturbing thing is that with these facts in hand, progressives still support just such restrictions on speech.

  • Paul||

    ‘We didn’t like the way you voted on health care that first time around. If you don’t change your vote on public option or on single payer, we’re going to invest X number of dollars to make sure that we recycle you.’ ”

    I wrote almost exactly that to one of my representatives after his "yes" vote on the TARP bailout.

  • Paul||

    although he argues that the danger is more acute on Capitol Hill because there is more influence to peddle.

    It's kind of fun to watch the intellectually-drunken Lessig stumble towards the answer to all of his problems...

  • ||

    Many fewer would be afraid of freer speech if the purpose of such speech was remotely valuable. Considering that most political advertising is twisted half-truths at best that impressively enough spread ignorance, it is not exactly impossible to imagine why some might not find the idea of even more such drivel appalling. If corporations were allowed to advertise as they thought best but were subject to strict disclosure laws, it could be much less of an issue.

    Freedom is not the issue, it is the abuses of freedom. If libertarians want to be taken remotely seriously, they should fit their views to a world remotely connected to this one instead of pretending to live in some fantasy land obviously distant from reality. The libertarian perspective is quite interesting but mostly as a thought experiment rather than a serious suggestion.

  • Paul||

    Many fewer would be afraid of freer speech if the purpose of such speech was remotely valuable.

    Define "valuable" speech.

  • Ray Pew||

    Many fewer would be afraid of freer speech if the purpose of such speech was remotely valuable.

    Value is subjective.

    Considering that most political advertising is twisted half-truths at best that impressively enough spread ignorance, it is not exactly impossible to imagine why some might not find the idea of even more such drivel appalling. If corporations were allowed to advertise as they thought best but were subject to strict disclosure laws, it could be much less of an issue.

    Why? As you state, much of political speech is half-truths, if not outright lies. This is true all the way up to the speech of sitting officials. Why is "anonymous" political speech somehow more damaging than the continuous outright lies that are perpetuated by those in the public eye? People are easily swayed by the fallacy of authority. Obama said X, so it must be true. Bush said Y, so it must be true.

    Freedom is not the issue, it is the abuses of freedom.

    So to protect freedom, we must limit it, huh?

    If libertarians want to be taken remotely seriously, they should fit their views to a world remotely connected to this one instead of pretending to live in some fantasy land obviously distant from reality. The libertarian perspective is quite interesting but mostly as a thought experiment rather than a serious suggestion.

    Why should I alter my view based on what I believe to be faulty reasoning? Consensus does not make truth. The argument that freedom of speech must be constrained in order to protect freedom of speech, no matter how accepted by the public, is piss poor reasoning.

  • Marian Kechlibar||

    Oh, the "abuses of freedom of speech"! Michaela, you sound like a Chavista.

    It is precisely the controversial speech ("not-so-valuable" in your view) that needs protection.

  • ||

    Many fewer would be afraid of freer speech if the purpose of such speech was remotely valuable. Considering that most political advertising is twisted half-truths at best that impressively enough spread ignorance, it is not exactly impossible to imagine why some might not find the idea of even more such drivel appalling. If corporations were allowed to advertise as they thought best but were subject to strict disclosure laws, it could be much less of an issue.

    Freedom is not the issue, it is the abuses of freedom. If libertarians want to be taken remotely seriously, they should fit their views to a world remotely connected to this one instead of pretending to live in some fantasy land obviously distant from reality. The libertarian perspective is quite interesting but mostly as a thought experiment rather than a serious suggestion.

  • 35N4P2BYY||

    So if the speech is determined by you or some such government organ to be either worthless or annoying it should be limited?

  • Monarch||

    The solution is simple, take the choice out of government. As Plato said a philosopher king would be able to run our system the most efficiently. Democracy simply slows down the rate of progress in a country.

  • ||

    "We the PEOPLE of the United States..."
    The rights granted in the US Constitution cover PEOPLE, not property! The USSC screwed the American people with thus ruling.

  • Paul||

    The right of the people, to speak with their unamplified voice in a public square of the government's choosing, shall not be infringed.

  • cynical||

    "Freedom of the press..."

    Are you suggesting printing presses aren't property?

  • ||

    Bilderberger influenceTO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT�..TO ALL THE COMMUNIST IN THE IG,FBI,CIA,AND U.S. Senators and the left wing media outlets�..Wake up america!!!! This goverment is the most corrupt we have had in years. The good old boy network is very much in charge.Mr. obama and pelosi are the puppet masters.How many of their good friends benefited by the agreement ” what a farce. All of the u.sSenators voted for this. I am ashamed to say I voted for the these corupted self serving politicians.With good reason they picked an out of towner to be president.All u.s departments need an overhaul. We need to rid ourselves of the puppet masters and the dept heads that bow down to obama and pelosi.I am sick of the lip service I have been getting from these dummies over violations, their friends are getting away with.in the goverment . Barack Hussein Obama , threatens friends and bows to Mmslim.
    INPEACH OBAMA ,GOD OPEN YOUR EYES.///For us there are only two possiblities: either we remain american or we come under the thumb of the communist Mmslim Barack Hussein OBAMA. This latter must not occur.//////// I love communist obama.will you ,thank you,the commander.ps aka red ink obama.//////// Repost this if you agree, IS communist obama ONE , Because of its secrecy and refusal to issue news releases, the Bilderberg group is frequently accused of political conspiracies. This outlook has been popular on both extremes of the ideological spectrum, even if they disagree on what the group wants to do. Left-wingers accuse the Bilderberg group of conspiring to impose capitalist domination,[21] while some right-wing groups such as the John Birch Society have accused the group of conspiring to impose a world government and planned economy.Obama's India trip really an Emergency Bilderberger Meeting ?THE COMMADER //////// .Is Barack Obama pushing forward dangerous policies that are bringing the United States closer to a socialist dictatorship. Are you even aware?

    2. What is the major proof of the Bilderberger influence over many of the world events in the last decade!

    3. Is it really true that the recent global financial collapse was engineered by the Bilderberg Group. Why was their 2010 annual meeting held in Greece?
    4. Bilderberger influence,president George W. Bush says he was "blindsided" by the financial crisis that shadowed his final months in office, but adds that the Democratic-controlled Congress shares some of the blame. -

    Now that the agenda for global government and a centralized world economic system is public and out in the open, the importance of the Bilderberg Group’s annual conference rests on grooming political candidates. The lion’s share of Bilderberg’s 2010 agenda has already been announced by its members weeks before – it will revolve around a potential military strike on Iran as well as the future collapse of the euro.The Bilderberger group, whose policies would pave the way for global communist conquest.

    ----- Bilderberg group in United States-------
    George W. Ball (1954, 1993),[13] Under Secretary of State 1961-1968, Ambassador to U.N. 1968
    Sandy Berger (1999),[14] National Security Advisor, 1997–2001
    Timothy Geithner(2009),[15] Treasury Secretary
    Lee H. Hamilton (1997),[1] former US Congressman
    Christian Herter,[16] (1961, 1963, 1964, 1966), 53rd United States Secretary of State
    Charles Douglas Jackson (1957, 1958, 1960),[17] Special Assistant to the President
    Joseph E. Johnson[18] (1954), President Carnegie Endowment for International Peace
    Henry Kissinger[19] (1957, 1964, 1966, 1971, 1973, 1974, 1977, 2008),[20] 56th United States Secretary of State
    Colin Powell (1997),[1] 65th United States Secretary of State
    Lawrence Summers,[15] Director of the National Economic Council
    Paul Volcker,[15] Chair of the President's Economic Recovery Advisory Board and Chairman of the Federal Reserve from 1979–1987
    Roger Altman (2009),[15] Deputy Treasury Secretary from 1993–1994, Founder and Chairman of Evercore Partners
    [edit] Presidents
    Bill Clinton (1991),[21][22] President 1993-2001
    Gerald Ford (1964, 1966),[4][23] President 1974-1977
    [edit] Senators
    John Edwards (2004),[24][25] Senator from North Carolina 1999-2005
    Chuck Hagel (1999, 2000),[26] Senator from Nebraska 1997-2009
    Sam Nunn (1996, 1997),[1] Senator from Georgia 1972-1997
    [edit] Governors
    Rick Perry (2007),[27] Governor of Texas 2000-current
    Mark Sanford (2008),[28] Governor of South Carolina , the United States closer to a socialist dictatorship. Are you even aware? === The Bilderberg Group, Bilderberg conference, or Bilderberg Club is an annual, unofficial, invitation-only conference of around 130 guests, most of whom are people of influence in the fields of politics, banking, business, the military and media. The conferences are closed to the public.== The Bilderberg Group in which he accuses them of manipulating the public "to install a world government that knows no borders and is not accountable to anyone but its own self."

    Repost this if you agree, THE END OF AMERICA.

  • Paul||

    I for one, missed The Commander!

  • Mr. FIFY||

    O Commander, my Commander!

  • ||

    "To Obama, apparently, the prospect of a less restricted political debate was more horrifying than an economic collapse, a military coup, or a nuclear war."

    Well, yes. Unlike the other 3, less restricted political debate is not an opportunity for him to markedly increase his power.

  • TwoFingers||

    OK, Pop Quiz time!

    A 'firewall' can be created between campaign contributions and candidates (as opposed to public funding). This would allow unrestricted free speech by individuals/organizations and tend to avoid “improper influence over a candidate’s position or an officeholder’s action”. Discuss.

    Extra credit: Do donors have a right to be known to the candidates?

  • jim||

    I doubt that many of them have to be pushed into taking a bribe (in whatever form it comes); pfah, most of them demand bribes.

  • ||

    THANK YOU TO ALL VETERANS , THE COMMANDER ------NOV.11 ,2010

  • tiffany jewellery||

    good topic

  • ||

    Contrary to all the rhetoric about corporations drowning out the voice of the people, corporations are the voice of the people

    One can but conclude that the author knows nothing, or nearly nothing about the functionality of corporations in modern America.

    That's right, it's "the voice of the people" encouraging corporations to move American jobs overseas (Tom Donoghue).

    Out in the reality-based universe, from which Mr. Sellum appears to have successfully detached himself decades ago, people who work for incorporated businesses have no say in how their employer spends money. Below the upper management, no one at Amazon, Chase, or Aetna has any say in how the corporation spends its lobbying money; nor in which political campaigns it chooses to invest.

    It's a cute rhetorical trick to conflate Merck, Wal-Mart and JP Morgan Chase with every one-horse PAC that filed incorporation papers from legalzoom.com. But it's intellectually dishonest and I'm sure Mr. Sellum knows as much.

    This discussion is based on the legal but logical absurdity of treating corporations as human beings, with associated "rights." If this legal fiction were abolished, the argument for allowing corporations like Merck or Wal-Mart to flood markets with campaign cash is abolished with it.

    I recently offended a friend by quoting Berke Breathed: "And I'd be a Libertarian if they weren't all a bunch of tax-dodging professional whiners."

    Actually, my definition would be expanded to include "who used the government to get a leg up financially, educationally and socially; and now wish to deny that same opportunity to everyone coming after them."

    Thanks.

    mp

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  • jdb79||

    I'm a year late to respond to Michael, but the fundamental economic illiteracy of the "don't move jobs overseas" argument is impressive.

    Yes, it would be lovely if corporations kept every job here in the United States, but I wonder if it would be equally lovely when the price of their products grew exponentially thanks to increased production costs? And would it be lovely when said company collapsed and left all of its workers--not just the ones who would be replaced by inexpensive foreign labor--unemployed because their competition produced similar products at far lower prices thanks to overseas factories and outsourcing?

    Really, how can you go to a Libertarian website and sneer at a defense of the First Amendment (collective speech is still speech, Michael) and not have a clue about why things happen out in the real world of business?

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