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The New York Times Endorses Restrictions on Political Speech
From today's lead editorial in The New York Times:
The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.
The court, which is scheduled to hear arguments on this issue on Wednesday, is rushing to decide a monumental question at breakneck speed and seems willing to throw established precedents and judicial modesty out the window....
If the court races to overturn federal and state laws, and its well-established precedents, to free up corporations to drown elections in money, it will be swinging for the fences. The American public will be the losers.
I'm guessing Times columnist and editorial board member Adam Cohen had a hand in drafting this, since it repeats his previous argument that the principle of judicial restraint requires the Court to adhere to its campaign finance precedents in tomorrow's rehearing of Citizens United v. FEC. In an article last week, I argued that it's actually the Court's fundamental responsibility to strike down those laws and precedents that run afoul of the First Amendment. Or as Steven R. Shapiro of the American Civil Liberties Union (which also favors striking down the offending campaign finance laws) told The Washington Post, "justices should think long and hard before overturning decisions.... But you can't have a system that says if you make a mistake, it must stand forever."
New World Dan|9.8.09 @ 4:38PM|#
As much as I'd like to believe in the magic of CFR, it doesn't really work. I'd rather have corporations out there spending directly. Especially if the one thing I approve of stands - requiring disclosure of who paid for the ad. I think there would be less unwanted influence if everyone were operating in the open instead of funneling things through PACs and ambiguously named orginizations.
Joe M|9.8.09 @ 4:42PM|#
We live in a patchwork society that is frayed beyond utility. This will be good if it happens, but hardly sufficient.
Rich|9.8.09 @ 4:47PM|#
requiring disclosure of who paid for the ad
How about requiring disclosure of who thought up the ad -- that is
-- contributed the *ideas*? Might help smoke out the grey
eminences.
|9.8.09 @ 4:48PM|#
If the floodgates open, money from big business could
overwhelm the electoral process, as well as the making of laws on
issues like tax policy and bank regulation
If the NYT endorses a candidate, isn't that a big business using
money to influence the electoral process?
Cal Lipigian|9.8.09 @ 4:52PM|#
as well as the making of laws on issues like tax policy and
bank regulation
Tax Policy and Bank Regulation written to favor the big money--that
would be different from the current system in what way?
|9.8.09 @ 4:54PM|#
Have to agree with the first comment. This notion that money = speech is pretty sick in my opinion. In the current political atmosphere, with our already mostly sold-out politicians, it is akin to letting you buy votes at $1 a piece. The guy with the most cash will always win. How fair is that?
|9.8.09 @ 4:55PM|#
Of course the NYT is a ok with a big corporation, like say GE,
buying a media entity, like say NBC, and using its money losing
news division and news channel to shill for whatever fits the
corporate agenda.
The NYT is of course a corporate entity itself. But somehow it is
okay for them to endorse candidates.
Barry Loberfeld|9.8.09 @ 4:58PM|#
From LIBERALISM:
HISTORY AND FUTURE:
A commitment to greater statism begets more such commitments, and
if what we may call the Ronald Dworkin generation pooh-poohed the
"silly proposition that true liberals must respect economic as well
as intellectual liberty," the Cass Sunstein generation repudiates
as even sillier the proposition that liberals cannot impose on the
free market of ideas the same doctrines and controls they impose on
the free market in widgets. (The esteemed professor has insisted
that speech, like commerce, must have its own "New Deal." With
Sunstein as thought control's FDR, who will be its LBJ?)
Tony\'s Third Nipple|9.8.09 @ 5:04PM|#
"The court, which is scheduled to hear arguments on this issue
on Wednesday, is rushing to decide a monumental question at
breakneck speed"
The court has stepped into the Obamacare debate???
|9.8.09 @ 5:04PM|#
Episiarch,
Of course not. What the hell is wrong with you? The Times
is the voice of the people!
|9.8.09 @ 5:05PM|#
I guess the Times believes corporations do not deserve rights. Well, "off with their rights!" I say.
The NYT|9.8.09 @ 5:05PM|#
"If the NYT endorses a candidate, isn't that a big business
using money to influence the electoral process?"
But we're special.
pin the tail on me|9.8.09 @ 5:07PM|#
If the NYT endorses a candidate, isn't that a big business
using money to influence the electoral process?
That's different. The NYT makes money, true, but it earns its money
by fulfilling the public service of publishing the truth that the
powers that be would not want you to hear. Therefore, we don't need
to worry about them influencing elections.
It's not like Walmart throwing around the money they save by
sending manufacturing jobs overseas so they can pay the workers
there half of what they would pay the workers here. We're talking
about people whose trade and training is spreading the truth, not
advancing their own greedy agenda.
Jimbo|9.8.09 @ 5:07PM|#
I say the NYT is right here! I say take the money out of the
equation!
Why don't we just dictate that the NYT and other papers print an
extra 10 or so pages of political ads every day. Space on those
adds will all be given to political candidates for free. Same with
TV and radio. So many minutes each hour will be donated to
political discourse for free.
I'll leave it to others to figure out how to allot all that free,
free, free media time. I'm the big idea guy I can't get bogged down
in details. The important thing is that by removing prices from
advertising you would end up with the same end goal as you would by
limiting spending.
Of course it wouldn't work and would be a real stupid idea, but
again it would be exactly like the system that the NYT is trying to
save.
I agree with NWD, let people spend what they want just make them
disclose it. I don't care how much NAMBLA poured into a campaign I
doubt they would win an election.
|9.8.09 @ 5:10PM|#
The root of the problem lies, of course, in the fact that campaign expenditures matter.
Cliché Bandit|9.8.09 @ 5:10PM|#
Who is going to engage the trolls? I don't have time
today.
If the SCOTUS actually deals a significant blow to the FEC I will
be surprised...Happy but surprised.
Don't count your chickens before they hatch
PR|9.8.09 @ 5:12PM|#
Isn't the NYTimes a corporation owned by a Mexican who has a monopoly on phone service in Mexico?
|9.8.09 @ 5:13PM|#
The NYT makes money, true, but it earns its money by
fulfilling the public service of publishing the truth that the
powers that be would not want you to hear. Therefore, we don't need
to worry about them influencing elections.
HAHAHAHAHAHAHAHAHAHA
Fucking gold.
Joe M|9.8.09 @ 5:15PM|#
Agreed. pin the tail, your trolling or troll-mocking abilities (whichever the case may be) are phenomenal.
|9.8.09 @ 5:17PM|#
pin the tail on me -
Your trolling efforts - FAIL.
Save your shekels and enroll in the Urkobold™ school of
trolling.
|9.8.09 @ 5:22PM|#
Congress shall make no law ... abridging the freedom of speech, or of the press;
ain't that fucking hard to understand.
|9.8.09 @ 5:33PM|#
The NYT makes money, true, but it earns its money by
fulfilling the public service of publishing the truth that the
powers that be would not want you to hear. Therefore, we don't need
to worry about them influencing elections.
No question, this is Performance Art.
money isn't speech, idiots.
If you think your right to free speech extends no farther than your
unaided voice, then you can take the position that the State can
ban you from spending money to spread your message.
If, however, you would like your message to go further than you can
shout, you're going to have to spend money.
|9.8.09 @ 5:35PM|#
I'm okay with requiring disclosure. Since we've allowed the
government to take on ridiculous and dangerous amounts of power, we
might as well know who is paying what to influence its [ab]use of
that power.
Ideally, we'd pare down federal power to something like its
constitutional limits, which would render moot the whole
debate.
hurlybuerhle|9.8.09 @ 5:38PM|#
@Pin the Tail: I was about to commend your subtle humor. Then it occurred to me it really isn't that hard to just copy and paste random quotes from Kos or TalkingPointsMemo.
Little Girl on the Playground|9.8.09 @ 5:40PM|#
How fair is that?
You're right, IT'S NOT FAIR!!!*
"Pin the tail on the Donkey,Donkey is the symbol of Democrats,the
Donkey is spouting liberal cliches just to mock them,if you take
him seriously by agreeing with him he's mocking you too"
Even I know life isn't FAIR.Man up Nancy.
t3knomanser|9.8.09 @ 5:46PM|#
I'm sorry, but corporations are not entitled to Constitutional protections. They are fictional persons invented as a legal abstraction. They have no right to contribute to a campaign, or even to expect protection from search and seizure. Citizens, not fictional persons, are given Constitutional protections.
t3knomanser|9.8.09 @ 5:47PM|#
Slight correction: SHOULD BE. My previous comment was about how
things should be. In a truly lassiez faire environment,
corporations wouldn't exist. Corporations are government
manipulation through the government recognition of a class of
fictional person.
//Stupid French and their crappy spelling
|9.8.09 @ 6:04PM|#
I'm sorry, but corporations, political parties, partnerships, professional organizations, clubs and unions are not entitled to Constitutional protections. They are fictional persons invented as a legal abstraction. They have no right to contribute to a campaign, or even to expect protection from search and seizure. Citizens, not fictional persons, are given Constitutional protections.
Is that where you were heading?
|9.8.09 @ 6:09PM|#
Full disclosure indeed! I won't employ anyone who contributes to causes I disagree with.
|9.8.09 @ 6:11PM|#
In a truly lassiez faire environment, corporations wouldn't
exist.
Sure they would. There a good way to raise capital, for people to
pool their resources, etc. They can be created entirely from
contract; no state charter needed.
Now, if you want to argue that you need state involvement to create
a limited liability corporation, I think first you need to
explain why limited liability for passive investors is an
artificial intervention by the state, but unlimited liability for
passive investors isn't.
Sulla|9.8.09 @ 6:15PM|#
Slight correction: SHOULD BE. My previous comment was about
how things should be. In a truly lassiez faire environment,
corporations wouldn't exist. Corporations are government
manipulation through the government recognition of a class of
fictional person.
//Stupid French and their crappy spelling
At a base level, a corporation is nothing more than a group of
people that get together on a joint project and are looking for a
way to make collective decisions. I've said it before, and I'll say
it again everytime we get a "corporations are evil" argument, but
as long as you live in a society where contracts are enforeced, you
will have something like a corporation. The only variables will be
how easy it is to set up a corporation (or its equivalent). If you
took any halfway decent corporate lawyer and put them into a
culture were corporations did not exist but contracts were
enforced, they could (with a lot of billable hourse) create an
analagous structure out of interconnected contracts to allow for
governance of the entity. That leaves 2 other main features of a
corporation: limited liability and juridical personhood. Limited
liability can be created in my hypothetical world by contractually
forcing anyone you do business with to refrain from going after the
assets of the individuals who own the entity and purchasing
liability insurance to protect against torts. Corporate personhood
is in most cases an acknowledgement of reality. If a group is
acting in a concerted fashion, almost like an individual, why not
treat it like one? It certainly is simpler to sue Acme, Inc. rather
than all of its shareholders. Perhaps a corporation should not have
all the same consititution protections as individuals (and the
don't, e.g., the Privileges and Immunities Clause), it doesn't make
sense to say that a group of individuals has none of the rights
that each member of that group has. At that point, you're just
quibbling about what rights are appropriate.
Let's be real, a corporate code is not a tool for the rich and
entrenched, they could afford to pay a lawyer for a good entity
structure. It is a tool for small business to have an efficient way
to organise.
Fluffy|9.8.09 @ 6:20PM|#
This notion that money = speech is pretty sick in my
opinion.
In that case, I assume you will have no problem if the Democrat
party and all Democrat candidates are required to conduct all
future elections without expending any money.
They can still speak and assemble, right?
Invisible Finger|9.8.09 @ 6:24PM|#
The NYT makes money, true, but it earns its money by
fulfilling the public service of publishing the truth that the
powers that be would not want you to hear.
For a second there I thought you were making a serious point!
Fluffy|9.8.09 @ 6:26PM|#
Limited liability can be created in my hypothetical world by
contractually forcing anyone you do business with to refrain from
going after the assets of the individuals who own the entity and
purchasing liability insurance to protect against torts.
You wouldn't even have to do that.
You would just need to design a debt instrument that allowed for
the instrument holder to receive a defined percentage of the
audited profits of an enterprise.
It would be impossible to pursue that debt holder for the unpaid
liabilities of the enterprise unless you wanted to change the law
to make anyone who lends money to an enterprise so liable as
well.
|9.8.09 @ 6:30PM|#
Interestingly, the right of association is just as protected
under the Constitution as the freedom of speech:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
ed|9.8.09 @ 6:51PM|#
"rushing to decide a monumental question at breakneck
speed"
But it was ok for the Dems to attempt to ram through a $1 trillion+
health care bill before August recess? One admires the Times'
consistent inconsistencies.
Item 6|9.8.09 @ 6:53PM|#
I can live with full disclosure. If a corporation gives X
dollars to a candidate, we should all know who did the giving. Any
candidate had better think hard about how much corporate or labor
money they receive, because the opposition will bludgeon them with
it.
The arguments that too mouch money will create a free-for-all
haven't thought this thru.
Suki|9.8.09 @ 7:02PM|#
I missed the term of president Perrot. He had the most money,
right?
Forgot what the spread was for Gore/Bush and Kerry/Bush.
The Angry Optimist|9.8.09 @ 7:19PM|#
Thank you to Fluffy and RC for doing their best to put to bed
this patently ridiculous notion that limited liability is
unavailable without the state.
And, you know what? This is my falsifiable issue on libertarianism.
If the corporation really could not exist without the state
allowing them too, then so be it. Corporations are massive engines
for wealth, and people need to get over it.
|9.8.09 @ 8:00PM|#
I'm sorry, but corporations are not entitled to
Constitutional protections. They are fictional persons invented as
a legal abstraction. They have no right to contribute to a
campaign, or even to expect protection from search and seizure.
Citizens, not fictional persons, are given Constitutional
protections.
Then you have no objection to a prohibition on any corporation,
including the New York Times Company (a New York corporation) from
spending money on any communication aimed at influence the outcome
of any election taking place within 60 days? (This would include,
of course, any communication that so much as mentions the name of a
candidate within that 60-day period.)
I really like the idea of forcing Pinch Sulzberger to grind out
copies of editorials on his HP OfficeJet printer, then walk around
Manhattan trying to get people to take them.
mark|9.8.09 @ 8:03PM|#
Forgot what the spread was for Gore/Bush and
Kerry/Bush.
FYI
And this is the percentage of dollars from sub-$200 donations in
the last 3 election cycles:
Bush: 16%
Gore: 20%
Bush: 31%
Kerry: 37%
McCain: 34%
Obama: 54%
Suki|9.8.09 @ 8:07PM|#
mark,
Of those elections, who was the candidate with the most money, not
just that segment?
For some reason I am not believing that the candidate with the most
total money always wins.
PETE|9.8.09 @ 8:28PM|#
What some seem to be saying is that in order to be logically consistent, if I don't think corporate money should be able to influence elections, then I am a hypocrite if I say it's okay for the NYT, or presumably any newspaper, to endorse a candidate?
Enyap|9.8.09 @ 9:22PM|#
"I missed the term of president Perrot. He had the most money,
right?"
Don't forget about the Libertarian Party ticket of Clark/Koch
sweeping the 1980 election either.
MJ|9.8.09 @ 11:16PM|#
PETE,
If you don't think corporations should be able to use their
resources to influence elections, why do you think the NYT
corporation should be allowed to influence elections through its
house newspaper?
I suppose you rationalize that with the idea that publishing a
newspaper is a specially protected form of speech which gives an
exemption. But that leads to the troubling fact that you give the
government an ill defined authority to define what organs of speech
are freer than others.
Rob|9.9.09 @ 12:20AM|#
Corporations aren't people, so the idea of them having free
speech strikes me a bit absurd. They're specifically designed to
separate people from personal culpability, so I don't see how
they're entitled to a voice.
Now if a CEO wants to go out of pocket to buy politicians via free
speech, go for it. But the idea that an amorphous entity
specifically shielded from accountability deserves "free speech" is
ludicrous.
MJ|9.9.09 @ 7:00AM|#
"But the idea that an amorphous entity specifically shielded
from accountability deserves "free speech" is ludicrous."
A corporation is not shielded from accountiblity. The owners of a
limited liability corporation have their non-corporate assets
shielded from the corporation's liabilities. The idea that the
owner's completely give up their civil rights with regards to their
corporate property is a fundamentally unjust notion.
Fluffy|9.9.09 @ 8:58AM|#
There's just no legitimate answer to the objection that the
law's attempt to create a "safe harbor" for so-called "media
companies" violates the First Amendment's protection of freedom of
the press.
Anyone who performs a press function becomes, by the act of doing
so, part of the press.
If commenting on political candidates is a press function [and the
law concedes that it is, and every last bit of jurisprudence we
have on the matter says that it is] then a corporation that
comments on a political candidate is tranformed, by the act of
doing so, into part of the press.
A law that attempts to define the candidate-related speech of
some corporations as protected commentary, but that of
other corporations as unprotected advocacy, is blatantly
unconstitutional and tyrannical. [Even leaving to one side the fact
that the entire concept of "unprotected advocacy" is absurd, since
all advocacy is also protected by the petitions clause.]
|9.9.09 @ 9:02AM|#
Sonny Perdue was outspent 10 to 1 by Roy Barnes in Georgia. Perdue's rat ad, which was probably aired more often as free news than paid advertising, overcame a $12 million media saturation onslaught. As Obama is finding out, the old say it enough line doesn't work so well when what you're saying is pure bullshit.
|9.9.09 @ 9:06AM|#
Cspan.org is going to have the arguments on tape around 11:30. Fluffy, I couldn't agree more. I'm looking forward to an afternoon of the MSM squealing like pigs.
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