Astroturf Soon To Be Illegal

Apparently, congressional Democrats are worried about polls calling them do-nothings. So they've decided to do something: Restrict political speech.

The amendment, pushed by Rep. Marty Meehan of Massachusetts, would require groups that organize such grassroots campaigns to register as "lobbyists" and file detailed quarterly reports on their donors and activities. The law would apply to any group that took in at least $100,000 in any given quarter for "paid communications campaigns" aimed at mobilizing the public....

But the First Amendment specifically prohibits Congress from abridging "the right of the people . . . to petition the Government for redress of grievances." The Supreme Court twice ruled in the 1950s that grassroots communication isn't "lobbying activity," and is fully protected by the First Amendment....The idea goes too far even for Sen. John McCain, who voted to strip a similar provision from a Senate lobbying reform bill last January.

Just a quick example of the kind of astroturf--"fake" grassroots--campaigns that would be covered under the law:

Oprah Winfrey operates a website dedicated to urging people to contact Congress to demand intervention in Darfur. If her Web master took in over $100,000 in revenue from Ms. Winfrey and similar clients in a single quarter, he might be forced to make disclosures under the law.

Thank God Congress is keeping us safe from the poisonous influence of money on politics. Sheesh.

More on congressional restrictions on political speech here and here.

Comments

Dan T. | May 14, 2007, 12:00pm | #

It's pretty unclear how this restricts political speech. What ideas are being suppressed?

Grotius | May 14, 2007, 12:06pm | #

...would require groups that organize such grassroots campaigns to register as "lobbyists" and file detailed quarterly reports on their donors and activities.

So, who is going to pay for the creation of all this paperwork?

Why does the government need to know this information?

Lamar | May 14, 2007, 12:07pm | #

Aren't these "anti-lobbying" laws just a facade for the party in power to abridge the activities of opposing groups? I know the GOP has George Soros in its sights, and the Dems have a whole roster of opposing lobbyists they'd like to put down.

Fluffy | May 14, 2007, 12:13pm | #

Dan -

If I engage in political activity without filling out the right forms, I am subject to criminal penalties.

fyodor | May 14, 2007, 12:17pm | #

What ideas are being suppressed?

Any who adherents might utilize money to express. Remember, Dan T, the 1st Amendment protects the expression of ideas.

Christopher Monnier | May 14, 2007, 12:18pm | #

> Why does the government need to know this information?

They [obviously] don't. But it's not about what information the government needs...it's about what information the public (via such groups) doesn't need. Making it that much more onerous for an activist group like DownsizeDC to sustain itself will prevent the information such groups have to offer us from reaching us.

Thank God we have the brave men and women of Congress to shelter us from all this information about how good or bad of a job they're doing. They know better than us about which information we should see.

joe | May 14, 2007, 12:18pm | #

"So, who is going to pay for the creation of all this paperwork?"

The people providing more than $100,000 in funding.

"Why does the government need to know this information?"

So it can be made public, and the voters can know that "Little Old Ladies Against Drunk Driving," who keep buy ads against a referendum to allow grocery stores to sell beer, is actually a group of liquor store owners seeking to protect their monopoly.

dhex | May 14, 2007, 12:21pm | #

joe, even you're not that fucking naive.

Fluffy | May 14, 2007, 12:22pm | #

I can't find the part in the 1st Amendment where it says that to be eligible to be part of the speech that can't be abridged or the assembly that can't be abridged, I have to provide details on all my speech and all my assembly for my neighbor to review.

The bottom line is that such a requirement would mean that if I and my associates got together and engaged in political speech and then went home and took no further action, we could be subject to arrest and to criminal penalties. Period.

joe | May 14, 2007, 12:22pm | #

Nothing to add, dhex?

Um, "smelly." You're smelly.

There, we're even.

Dave W. | May 14, 2007, 12:23pm | #

So it can be made public, and the voters can know that "Little Old Ladies Against Drunk Driving," who keep buy ads against a referendum to allow grocery stores to sell beer, is actually a group of liquor store owners seeking to protect their monopoly.

But wouldn't this law be bad for reason and HnR, joe. It seems like people might focus on who is contributing to Reason rather than what the Reason authors, like Katherine Mangu-Ward, are saying in substance. That would not be in the best interests of Reason's authors, or their contributors. It might even drive down contributions to Reason that would otherwise be made.

joe | May 14, 2007, 12:23pm | #

"The bottom line is that such a requirement would mean that if I and my associates got together and engaged in political speech and then went home and took no further action, we could be subject to arrest and to criminal penalties."

No, Fluffy, it doesn't. You'd have to also have to spend $100,000.

Grotius | May 14, 2007, 12:25pm | #

joe,

The people providing more than $100,000 in funding.

Great. More money wasted.


So it can be made public...

And what if I don't want my spending habits to be made public?

As for the publication of such information government disclosure laws aren't necessary for those to become public knowledge. That is what the press is for (in part).

Mo | May 14, 2007, 12:25pm | #

So joe, how is this not an abridgment of free speech?

Dick Allen | May 14, 2007, 12:25pm | #

"If a horse can't eat it, I don't want to play on it."

Fluffy | May 14, 2007, 12:26pm | #

Joe -

So if 500 of us got together in Vegas and listened to political speeches, we'd break the law.

That directly criminalizes both assembly and speech.

R C Dean | May 14, 2007, 12:27pm | #

Better that advocacy groups spend their resources feeding a bureaucracy, rather than actually, you know, advocating, eh, joe?

joe | May 14, 2007, 12:27pm | #

"I can't find the part in the 1st Amendment where it says that to be eligible to be part of the speech that can't be abridged or the assembly that can't be abridged, I have to provide details on all my speech and all my assembly for my neighbor to review."

I can't find the part that limits my ability to yell, "Fire!" in a crowded theater, either.

Or that part that says I, and my 250,000 closest friends, need to get a permit to "peacefully assemble" on the national mall "to petition the government for a refress of grievances."

AND YET, every Constitutional scholar in American history has acknowledged that both of those laws are perfectly in keeping with the First Amendment.

Christopher Monnier | May 14, 2007, 12:28pm | #

> No, Fluffy, it doesn't. You'd have to also have to spend $100,000.

No, joe, the group would have to take in $100,000. It doesn't matter if your group has 10 members or 100,000 members, and apparently also doesn't matter whether it spends the money or just takes it in.

Yogi | May 14, 2007, 12:29pm | #

Annie Savoy: Oh, where are you going?

Crash Davis: After 12 years in the minor leagues, I don't try out. Besides, uh, I don't believe in quantum physics when it comes to matters of the heart.

Annie Savoy: What do you believe in, then?

Crash Davis: Well, I believe in the soul, the cock, the pussy, the small of a woman's back, the hanging curve ball, high fiber, good scotch, that the novels of Susan Sontag are self-indulgent, overrated crap. I believe Lee Harvey Oswald acted alone. I believe there ought to be a constitutional amendment outlawing Astroturf and the designated hitter. I believe in the sweet spot, soft-core pornography, opening your presents Christmas morning rather than Christmas Eve and I believe in long, slow, deep, soft, wet kisses that last three days.

Yogi | May 14, 2007, 12:30pm | #

^^^^Possibly the greatest movie line ever.

Grotius | May 14, 2007, 12:31pm | #

joe,

I can't find the part that limits my ability to yell, "Fire!" in a crowded theater, either.

Since the core of the First Amendment's speech right concerns political speech your example is inapt.

Or that part that says I, and my 250,000 closest friends, need to get a permit to "peacefully assemble" on the national mall "to petition the government for a refress of grievances."

Such a permit cannot be content restrictive and I doubt it would ever require a census of the folks showing up. Furthermore, such a permit deals with the use of a public facility or forum and no such forum necessarily exists in this circumstance.

AND YET, every Constitutional scholar in American history has acknowledged that both of those laws are perfectly in keeping with the First Amendment.

Yep, and neither of them is on point.

joe | May 14, 2007, 12:32pm | #

"Great. More money wasted."

Some of us don't consider greater transparency in the political process to be a waste. You know, like those people who show up on every campaign finance threat to argue that the law should be limited to public disclosure.

"And what if I don't want my spending habits to be made public?"

You want to fund political acivity, but make sure no one finds out? You don't run a liquor store, do you?

"As for the publication of such information government disclosure laws aren't necessary for those to become public knowledge. That is what the press is for (in part)."

And the press is going to uncover who is behind "Little Old Ladies Against Drunk Driving," and who funds the, how, exactly, without public disclosure?

In case you haven't noticed, virtually every story about who is funding which candidates and groups is based on research into the FEC database.

Fluffy | May 14, 2007, 12:32pm | #

The Holmes decision where the "Fire" exception comes from is exceptionally poorly written.

It's only illegal to yell "Fire" in a crowded theatre if it isn't your theatre. That makes it run of the mill disorderly conduct. You have absolutely no free speech rights on anyone else's property. If you yell "Fire" in a crowded theatre and it is your theatre, you're not liable for the speech if people are injured - you're liable for not maintaining safe conditions for persons using your property.

Holmes was a big fat idiot. The case that famous quote comes from was also ludicrously wrongly decided. Debs should have tracked Holmes down and shot him in the face as a tyrant.

"Time, place and manner" restrictions on speech don't have as much to do with speech as they do with the ability of the federal government to own property and designate it for a particular use. I can't hold my demonstration on the floor of the House of Representatives because that public property is already in use. I can't hold it in the middle of I-95 because that property is already in use. But if I find public space somewhere that's not currently in use, you're damn right that I don't think the state has the power to force me to get a permit.

Grotius | May 14, 2007, 12:32pm | #

joe,

In other words just because you can point to examples where speech can be regulated doesn't mean that all examples of speech regulation are constitutional.

joe | May 14, 2007, 12:35pm | #

Grotius,

"Yep, and neither of them is on point."

Actually, they're both exactly on point - the point being that "but that law limits/put conditions on speech" does not demonstrate that the law violates the First Amendment.

I know, it's a small point, but one that, surprisingly, needs to be pointed out.

Grotius | May 14, 2007, 12:36pm | #

joe,

Some of us don't consider greater transparency in the political process to be a waste.

You'd have to demonstrate that this has something to do with transparency.

You want to fund political acivity, but make sure no one finds out?

Yeah, sort of like a secret ballot.

And the press is going to uncover who is behind "Little Old Ladies Against Drunk Driving," and who funds the, how, exactly, without public disclosure?

The same way it finds all sorts of things. There is always a paper trail.

In case you haven't noticed, virtually every story about who is funding which candidates and groups is based on research into the FEC database.

Yes, but the money that candidates take is quite different from this situation. I have no problem with candidate disclosures.

joe | May 14, 2007, 12:37pm | #

Fluffy,

"But if I find public space somewhere that's not currently in use, you're damn right that I don't think the state has the power to force me to get a permit."

Round up the posse and try to take over an empty public park for a demonstration some time.

Ironchef | May 14, 2007, 12:38pm | #

The daily trolls are providing the First Amendment equivalent of the "If you've nothing to hide, then you shouldn't mind being strip searched" argument.

Grotius | May 14, 2007, 12:38pm | #

joe,

Actually, they're both exactly on point...

No, they aren't for the reasons that I detailed.

Chucklehead | May 14, 2007, 12:39pm | #

Possibly the greatest movie line ever.

We're sorry, but in order to express an opinion, you need to fill out form QDH-003-A and have it vetted by the IRS.

creech | May 14, 2007, 12:39pm | #

Finally an issue that should have groups across the whole spectrum (or quadrants if you prefer) banding together to tell Congress to defeat this amendment. Do we really want to keep moving in the direction of having our "cartridge box" the only remaining protection of our individual rights?

Grotius | May 14, 2007, 12:39pm | #

joe,

Maybe you can address those reasons.

Christopher Monnier | May 14, 2007, 12:41pm | #

> Some of us don't consider greater transparency in the political process to be a waste.

I'm all for transparency, but not when the burden is on individuals. Everything the *government* does, should be 100% transparent. The burden should be on the government and/or Congresspersons to document everything they do, why they do it, and who paid for it.

An individual (or a group of individuals) can't legally force me to do anything I don't want. The government can. Therefore, I don't care how individuals or groups are funded...I can ultimately ignore them if I want. I care dearly about the "who, what, when, where, how, and why" the government does because their actions I cannot ignore--I MUST comply.

joe | May 14, 2007, 12:41pm | #

"In other words just because you can point to examples where speech can be regulated doesn't mean that all examples of speech regulation are constitutional."

Of course not. My claim is much more modest - that pointing to some examples where speech can be regulated means that some examples of regulating speech are constitutional.

"Yeah, sort of like a secret ballot."

And here we find ourselves balancing competing interests - is the benefit of keeping astroturfing secret greater than the benefit of allowing the public to know who is behind a political campaign.

"Yes, but the money that candidates take is quite different from this situation. I have no problem with candidate disclosures."

There is no difference in terms of the question asked - how the press would gain access to the information about who funds the political campaigns.

Grotius | May 14, 2007, 12:43pm | #

Christopher Monnier,

You basically hit the nail on the head. That is the primary and most important distinction between disclosure laws for politicians and disclosure laws for citizens.

Guy Montag | May 14, 2007, 12:43pm | #

Seems some on this board read the First Amendment in the same manner they read the Second.

joe | May 14, 2007, 12:44pm | #

Grotius,

"No, they aren't for the reasons that I detailed."

You're going to have to do better than "nuh uh." I told you why the examples are relevant, and what they are relevant to.

Grotius | May 14, 2007, 12:45pm | #

joe,

I did better than "nuh uh" (see above). Have a good one.

Guy Montag | May 14, 2007, 12:47pm | #

I sense that a 'fairness' doctrine revival is not far behind.

joe | May 14, 2007, 12:49pm | #

Christopher Monnier,

Since the private organizations/individuals in question are seeking to influence the government, and what it can force you to do, your distinction doesn't hold up.

I can agree with your argument if the "astroturf" groups were working to get people to buy more Rice Krispies, but the fact that they are working to get people to back some stance on how the government will regulate, tax, or otherwise impose on us makes these campaigns very relevant to the interest you agree with.

Dave W. | May 14, 2007, 12:50pm | #

The daily trolls are providing the First Amendment equivalent of the "If you've nothing to hide, then you shouldn't mind being strip searched" argument.

The "trolls" have the "First Amendment equivalent" of probable cause here, which makes it okay.

Timothy | May 14, 2007, 12:54pm | #

The MLB should've moved away from astroturf as soon as the more realistic faux grass systems became feasible. Now, I'm not saying there needs to be government intervention to make astroturf illegal, but it sure would be nice if they'd replace it with a better playing surface. Baseball simply isn't meant to be played on carpet.

Chucklehead | May 14, 2007, 12:55pm | #

Since the private organizations/individuals in question are seeking to influence the government, and what it can force you to do, your distinction doesn't hold up.

Are you reading the same First Amendment to the Constitution of the United States as I am?

Grotius | May 14, 2007, 12:56pm | #

Dave W.,

There is no First Amendment equivalent of "probable cause," particularly since we're discussing political speech here.

Grotius | May 14, 2007, 12:58pm | #

Chucklehead,

It is totally odd to think that in order to petition the government one must first register to do so.

Christopher Monnier | May 14, 2007, 12:59pm | #

> Since the private organizations/individuals in question are seeking to influence the government, and what it can force you to do, your distinction doesn't hold up...

Isn't "influencing the government" basically the same thing as "petitioning the government for a redress of grievances?"

Chucklehead | May 14, 2007, 1:00pm | #

Wouldn't registering with the government, in order to petition the government, also be a kind of petition?

Grotius | May 14, 2007, 1:02pm | #

Chucklehead,

I guess it would be a petition to be allowed to petition? ;)

Guy Montag | May 14, 2007, 1:03pm | #

Isn't "influencing the government" basically the same thing as "petitioning the government for a redress of grievances?"

It is exactly the same thing. Some people seem to think that word games to transfer your freedom to them is a perfectly acceptable method of oppression liberty empowerment.

Lamar | May 14, 2007, 1:05pm | #

There is no First Amendment equivalent of "probable cause," particularly since we're discussing political speech here.

Wouldn't that be the "compelling interest" test in strict scrutiny?

Biff | May 14, 2007, 1:08pm | #

Just to put this silly Grotius/joe dustup to bed, here's the recap:

Fluffy said: I can't find the part in the 1st Amendment where it says that to be eligible to be part of the speech that can't be abridged or the assembly that can't be abridged, I have to provide details on all my speech and all my assembly for my neighbor to review.

Joe (possibly) misinterpreted this to mean "Speech and assembly can never be restricted anytime, ever." He then provided examples of legal restrictions on speech and assembly.

Grotius misinterpreted that to mean "because some speech restrictions are legal, all speech restrictions are legal".

Today's lesson: if you find yourself interpreting someone else's statement in such a way that it is completely, utterly absurd, say to yourself, "maybe I'm not reading this correctly..."

Now all of you go kiss and make up.

Grotius | May 14, 2007, 1:11pm | #

Lamar,

Does it make much sense compare the limited power of the government to search, etc. a particular place, etc. with the speech right?

Grotius | May 14, 2007, 1:13pm | #

Biff,

I already put it do bed.

The main thrust of my comments were to detail why joe's examples are inapt.

Grotius | May 14, 2007, 1:14pm | #

Biff,

In other words, you are misinterpreting me.

Lamar | May 14, 2007, 1:14pm | #

Both are instances where the government may abuse overcome its constitutional limitations.

Biff | May 14, 2007, 1:15pm | #

I'm not in love with this proposed law. But since, as libertarians, we prefer greater disclosure, as opposed to restrictions on political donations, what exactly is the better alternative?

We have a First Amendment "right to lie", especially about politics. The antidote to that is transparency. How else do we get that?

Chucklehead | May 14, 2007, 1:15pm | #

Now all of you go kiss and make up.

Gimme some sugar!

Biff | May 14, 2007, 1:15pm | #

In other words, you are misinterpreting me.

So in addition to "nuh-uh", you also have "I know you are but what am I" in your arsenal. Good show.

Fluffy | May 14, 2007, 1:15pm | #

"And here we find ourselves balancing competing interests - is the benefit of keeping astroturfing secret greater than the benefit of allowing the public to know who is behind a political campaign."

Um - the benefit to whom?

Speech isn't free because it benefits someone. And it doesn't have to benefit anyone to be free. The question of benefit never arises.

The fact is that you're attempting to place an affirmative burden on the speaker or assembler to make it easy for others to know about their speech.

No member of the public has any right to know anything about my speech, my political activity, or my spending. The Congress has no right to place an affirmative burden on me to undertake some action to engage in political speech or assembly on my own property.

Once again this "balancing interests" crap as a legal theory only comes into play if we assume the Bill of Rights is a set of guidelines, to be abridged whenever the state thinks it has a good reason. It's crap law and always has been. If there is a conflict between a state power and an enumerated right, the state power loses. Always. No other reasonable reading of the Constitution is really possible. There would have been no point to passing the amendments that constitute the Bill of Rights if they weren't going to, you know, actually AMEND the Constitution and restrict the actual or implied powers listed in the original unamended text.

Grotius | May 14, 2007, 1:18pm | #

Biff,

Actually, I'm mostly trying to derail any further controversy. What are you trying to do?

Anyway, my comments on the issue of why joe's examples are inapt are quite substantive. You can read them if you like.

Dave W. | May 14, 2007, 1:21pm | #

Wouldn't that be the "compelling interest" test in strict scrutiny

I don't know since not only are we not talking about a "prior restraint" her, but moreover we are not talking about a "restraint" at all. Aren't there any lower standards of scrutiny for this lower lever of intrusiveness?

To answer Grotius: I only mentioned probably cause because I was going with Ironchef's "strip searching" analogy. If you ever read any history, you would know that that is why I put Ironchef's "First Amendment equivalent" phrasing in scare quotes.

Grotius | May 14, 2007, 1:23pm | #

Fluffy,

The thing of course is that the conversations at the Constitutional Convention were, well, at least officially, secret (at least until Madison's death).

joe | May 14, 2007, 1:24pm | #

Chucklehead,

"Are you reading the same First Amendment to the Constitution of the United States as I am?"

Yes, the one that has never been read to forbid laws requiring public disclosure. Yes, the one that requires food producers to list their ingredients and nutritional information. Yes, the one that requires a strict scrutiny test for laws that place restrictions on speech. Yes, we are reading that same First Amendment.

Chirstopher Monnier,

'Isn't "influencing the government" basically the same thing as "petitioning the government for a redress of grievances?"'

Yes, it is. And running for office is the same things as "speech." We require candidates for office to collect and release this information. While they are running for office, they are private citizens seeking to effect a vote in order to influence what the government does - just like astroturf groups.

Grotius,

"Does it make much sense compare the limited power of the government to search, etc. a particular place, etc. with the speech right?"

It makes sense to compare the limited power of the government to condition speech and assembly to the limited power of governemnt to carry out searches.

That's what I got out of Dave W.'s comment - that there are conditions (the "compelling interest" doctrine) under which speech and assembly can be conditioned, just as there are conditions under which government searches can be allowed.

Biff | May 14, 2007, 1:24pm | #

Anyway, my comments on the issue of why joe's examples are inapt are quite substantive. You can read them if you like.

Dude, I read them. They're substantive, and wholly irrelevant. Let me say this again: nobody is arguing that those examples prove that this astroturf law is A-OK.

Grotius | May 14, 2007, 1:25pm | #

Dave W.,

Oh yeas, I've told you many times, I've never read any history.

Grotius | May 14, 2007, 1:26pm | #

Biff,

They aren't "irrelevant." After all, joe was using those two examples as a means to defend the idea of these sorts of measures. So me stating why they are off point is perfectly relevant to the discussion at hand.

Enjoy your day.

Grotius | May 14, 2007, 1:28pm | #

Fluffy,

In other words, we have a long history secret political speech in the U.S. Indeed it is likely the case that secrecy in political speech is as important in keeping a society free as public speech is.

joe | May 14, 2007, 1:29pm | #

Fluffy,

"Um - the benefit to whom?"

To the voters. More transparent politics is a good thing. It allows us to make better decisions, just as more knowledge about products and their prices allows us to make better decisions as consumers.

"No member of the public has any right to know anything about my speech, my political activity, or my spending. The Congress has no right to place an affirmative burden on me to undertake some action to engage in political speech or assembly on my own property."

I disagree with these statements, as does the Supreme Court, and as did the individuals who wrote and ratified the Bill of Rights.

Chucklehead | May 14, 2007, 1:30pm | #

I've changed my mind. This is a good proposal. But the $100k threshold is a bit too high in my opinion. I think anyone that contributes ten bucks or more ought to register. My reasoning is that ten bucks will allow an individual or organization to purchase 24 first-class stamps, which could then be used to mail out letters or postcards urging people to contact their Representative or Senator about some issue. And since a dozen or so calls to said Representative or Senator is clearly lobbying, we ought to know who paid for those stamps.

Lamar | May 14, 2007, 1:32pm | #

Dave W.: I wish I had more time, but isn't there a super level of strict scrutiny for prior restraint?

Timothy | May 14, 2007, 1:33pm | #

Yes, joe, the founders were TOTALLY against anonymous political speech. As is evidenced by every document in the Federalist and Anti-Federalist papers being signed, dated, and sealed by the true author.

Timothy | May 14, 2007, 1:34pm | #

Lamar: Um, the supreme court has roundly rejected prior restraint.

joe | May 14, 2007, 1:34pm | #

Everyone else seems to both understand why, and how, those two examples are apt, Grotius.

Fluffy made an absolutist statement. I showed that the matter was not absolute, and gave two counter-examples. That is the extent of the point I made, and nothing you wrote refutes that limited point.

You're right, it refutes another point - that those examples demonstrate that this law is right - but I didn't make that point, nor provide those examples as evidence of that point.

I refuted Fluffy's absolutist point. He wrote that the First Amendment forbids the government from putting any restrictions on speech. He was wrong, and I provided two examples that proved he was wrong.

Nobody else is having any diffuculty getting this - you're just being stubborn, and playing dumb to avoid admitting that you read a point into my comment that wasn't there.

Just. Let. It. Go.

Grotius | May 14, 2007, 1:34pm | #

Dave W.,

If one goes by the limited Supreme Court decisions on the issue "prior restraint" is verboten except in some very particular circumstances, one example given being given as I recall the "time tables" of troop transports.

Grotius | May 14, 2007, 1:35pm | #

joe,

You and one other person isn't "everyone else."

Grotius | May 14, 2007, 1:36pm | #

joe,

Anyway, even if that were the case, since when did "majority opinion" here at Hit n' Run start to matter to you?

joe | May 14, 2007, 1:36pm | #

Timothy,

Nice straw man. Someday, you'll be big enough to argue against points made by actual people!

(I'll do you the favor of assuming you are deliberately being obtuse, rather than lacking the 8th-grade reading skills necessary to realize that I didn't claim the Founders were opposed to individuals engaging in anonymous political speech).

Grotius | May 14, 2007, 1:37pm | #

Er, the Dave W. comment was meant for Lamar.

R C Dean | May 14, 2007, 1:38pm | #

Yes, the one that has never been read to forbid laws requiring public disclosure.

That would be incorrect. The First Amendment has been read to prohibit "forced speech." See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Yes, the one that requires food producers to list their ingredients and nutritional information.

Rightly or wrongly, "commercial speech" is given less 1A protection than political speech. Since we are talking political speech here, pointing to laws that have passed muster under a lower standard doesn't really help.

Yes, the one that requires a strict scrutiny test for laws that place restrictions on speech. Yes, we are reading that same First Amendment.

And can you possibly believe that this law would pass a strict scrutiny test? What is the compelling public interest that can be served in no other way?

Grotius | May 14, 2007, 1:38pm | #

Timothy,

Nice observation. :)

joe | May 14, 2007, 1:38pm | #

Let it go, Grotius. You misread my statement. It's been explained to you several times. Even you get it at this point.

Just move on. You're not accomplishing anything, not making any point, not refuting any point, not shedding any light on anything.

You're just advertising the fact that you misread what I wrote. It's been cleared up.

Move. On.

Grotius | May 14, 2007, 1:40pm | #

R.C. Dean,

Since we are talking political speech here, pointing to laws that have passed muster under a lower standard doesn't really help.

Thanks for pointing that out more succinctly than I did.

Grotius | May 14, 2007, 1:41pm | #

joe,

I'm not the one bringing it up time and time again. You are. :)

Chucklehead | May 14, 2007, 1:42pm | #

Move. On.

Did Soros get you to type that?

Grotius | May 14, 2007, 1:43pm | #

Chucklehead,

Heh.

Biff | May 14, 2007, 1:45pm | #

I didn't claim the Founders were opposed to individuals engaging in anonymous political speech

It's not really clear what you were claiming, joe. You should probably clarify.

Anyway, truly anonymous speech should be legal, and the Founders wanted it that way. Astroturfing isn't anonymous speech, it's deliberately deceptive speech - a speaker trying to pretend he's someone he isn't. Saying you're "Publius" is different from saying you're "Republicans for Clean Air".

The law is a bad idea because it's overbroad and burdens non-astroturfing groups as well as astroturfing groups. Again, though, what's our better alternative?

crimethink | May 14, 2007, 1:47pm | #

joe,

I think what Grotius is saying is that there is a vast difference between the permissible restrictions on free speech you mention, and the proposed law restricting astroturfing.

A person who yells "Fire" in a movie theater is creating a clear and present danger to the public safety, so their behavior falls within the police power of the state. Gathering 250,000 people in a single location on public property is going to disrupt other people's ability to use it, so again the govt has a legitimate interest there as well.

Astroturfing does not threaten public safety or hog the use of public property. You haven't presented any such compelling interest that the govt has to regulate such speech. Also, there is the small fact that legitimate, non-astroturfing organizations will also be negatively impacted by this law, which I'm told is another consideration the courts take into account when dealing with 1st ammendment cases.

Grotius | May 14, 2007, 1:48pm | #

Timothy,

You know the Federalist Papers could be construed as a form of astroturfing (depending on how liberally one applies the term), since the term "federalism" probably more aptly applied to the so-called "anti-Federalists."

joe | May 14, 2007, 1:48pm | #

RC Dean,

"Public disclosure" and "Forced Speech" are not cotermimus. The 1st Amendment has been read to forbid SOME forced speech. It has never been read, as Chucklehead claimed, to forbid ALL "forced speech," such as public disclosure. If it had, there would be no food labelling laws. You made the Grotius error - reading my refutation of a statement asserting an absolute as if I, myself, was making an absolute statement.

"Rightly or wrongly, "commercial speech" is given less 1A protection than political speech. Since we are talking political speech here, pointing to laws that have passed muster under a lower standard doesn't really help."

OK, so you are acknowledging that the absolutist statement I refuted is, in fact, untrue in some cases. Good.

Now, are disclosure laws on political activity constitutional? The laws requiring the disclosure of donations to candidates have been repeatedly upheld.

"What is the compelling public interest that can be served in no other way?" Exactly the same one that is served by the similar requirements placed on the campaigns of candidates for office - the greater transparency created by public disclosure. You can find some really well-phrased expressions of this principle on old threads about McCain-Feingold, by libertarians opposed to donation limits and ad regulations.

Dave W. | May 14, 2007, 1:49pm | #

Dave W.: I wish I had more time, but isn't there a super level of strict scrutiny for prior restraint?

I don't know. Back at lawr skeel, I took as little Con Law as I could get away with, in favor or corporations and IP.

It is just that, intuitively, "compelling interest" and "strict scrutiny" seem overly tough for a law that is content neutral and mandates only disclosure-related things, rather than substance-related things.

Biff | May 14, 2007, 1:53pm | #

I refuted Fluffy's absolutist point. He wrote that the First Amendment forbids the government from putting any restrictions on speech.

I'm pretty sure he didn't.

Anyway, having failed to convince either Grotius or joe, I hereby retire from my brief stint as Hit & Run Hall Monitor. I want to spend more time with my family.

Grotius | May 14, 2007, 1:53pm | #

In other words, the Constitution created a far more centralized government than the federation then in place, yet supporters of the document called themselves federalists. Of course at this point it becomes an argument over word definition (a generally pointless endeavour).

crimethink | May 14, 2007, 1:55pm | #

Again, though, what's our better alternative?

Ever heard of caveat emptor?

If Little Old Ladies Against Drunk Driving is able to convince the citizenry to support anti-beer laws, does it matter who pays their bills?

joe | May 14, 2007, 1:56pm | #

crimethink,

I'm certainly open to the idea that this law is unduly burdensome one small political organizations. I can recognize this as a cost, to be weighed against the benefits of transparency.

I'm just objecting to the arguments that 1) there is no benefit to knowing who is behind an astroturf campaign and 2) this law must be unconstitutional because it involves speech and assembly.

As a matter of constitutional law, laws that restrict or condition speech CAN be constitutional, if they meet certain standards; as a matter of fact (although debateable), transparency does provide benefits to the political system.

Biff | May 14, 2007, 1:56pm | #

If Little Old Ladies Against Drunk Driving is able to convince the citizenry to support anti-beer laws, does it matter who pays their bills?

Obviously it does, otherwise nobody would bother with astroturfing in the first place.

John | May 14, 2007, 1:57pm | #

Constitutional issues aside, it is a question of who do you trust, the voters' ability to see through astroturfing and make a decision for themselves or politician's ability not to use this kind of thing as a way to harrass groups that oppose them. Being at heart a democrat, I trust the voters' judgement and the maketplace of ideas to work these kinds of things out. Politicians on the other hand will use this power to stomp on whoever happens to be out of power. Never was a bigger lie told than people claiming the "need to stop the corrupting influence of money in politics". Bullshit. This is all about using the corrupting influence of regulatory and police power to stile debate and intimidate dissenters. The people who support this ought to be ashamed of themselves.

crimethink | May 14, 2007, 1:57pm | #

I refuted Fluffy's absolutist point. He wrote that the First Amendment forbids the government from putting any restrictions on speech.

So, having shown that that absolute statement is false, now you can safely ignore Grotius' non-absolutist arguments?

Grotius | May 14, 2007, 1:57pm | #

crimethink,

The thing of course is that any good reporter could ask all sorts of pointed questions about the funding of such an organization and if they aren't forthcoming that fact alone can be seized on.

joe | May 14, 2007, 1:59pm | #

crimethink,

"If Little Old Ladies Against Drunk Driving is able to convince the citizenry to support anti-beer laws, does it matter who pays their bills?"

There is a reason why special interests pose as grassroots groups - because it's effective. Little Old Ladies Against Drunk Driving operates under that name because they know that the fraud involved in adopting that persona can influence the public.

Decisions made based on truth are better than decisions made based on fraud.

Chucklehead | May 14, 2007, 1:59pm | #

It has never been read, as Chucklehead claimed, to forbid ALL "forced speech," such as public disclosure.

Where did I claim this, exactly?

Besides, joe, I'm on your side now. Read my ten-dollar proposal. After all, if the law applies to the wealthy, it ought to apply to the poor as well. Or... are you advocating regulating political speech for some, but not for others based on some arbitrary dollar amount?

... That certainly doesn't seem egalitarian...

Lamar | May 14, 2007, 1:59pm | #

This is another example of our celebrity worshipping/ad hominem as an OK argument/wanna have a beer with the president society. We don't really examine the specific proposal as long as a sympathetic figure presents it.

Biff | May 14, 2007, 2:00pm | #

So, having shown that that absolute statement is false, now you can safely ignore Grotius' non-absolutist arguments?

Who are you talking to, and WTF are you talking about?

Grotius | May 14, 2007, 2:00pm | #

John,

we should also consider your comments in light of the current controversy over dismissals at the Justice Department.

crimethink | May 14, 2007, 2:02pm | #

I'm certainly open to the idea that this law is unduly burdensome one small political organizations. I can recognize this as a cost, to be weighed against the benefits of transparency.

joe, you sound awfully anxious to make your omelette. I wonder, would you support forcing Congresscritters to undergo public lie detector tests to ferret out their true motivations when proposing legislation?

That's transparency I could get behind.

joe | May 14, 2007, 2:02pm | #

crimethink,

I haven't ignored Grotius's non-absolutist arguments. I agreed with him that those cases do not prove that this law is legit (just refute one argument about why it cannot be legit), and have attempted several comments about transparency and public disclosure of funding already being accepted by the courts as legitimate governments interests.

Grotius | May 14, 2007, 2:04pm | #

crimethink,

Hey, thanks for visiting my blog BTW.

Grotius | May 14, 2007, 2:05pm | #

crimethink,

Do you have a blog?

crimethink | May 14, 2007, 2:06pm | #

Grotius, no blog for me.

I'm saving my ingenuity for the book... ;-)

John | May 14, 2007, 2:07pm | #

"we should also consider your comments in light of the current controversy over dismissals at the Justice Department."

I don't think so. US Attorneys are slithery political creatures who got their jobs at the pleasure of the President and because of their connections. If they don't want to toe the party line, whatever that is, then they need to find a new job. I didn't blame Clinton when he canned every one of them. I wouldn't blame any president for canning US attornies for sport or any reason they want. Politics is politics.

This case is about people and their ability to petition the government, not about some politically connected croney to keep his job after he pissed off the powers that be.

joe | May 14, 2007, 2:10pm | #

Chucklehead,

"Where did I claim this, exactly?"

At 12:55 PM.

Anyway, your ten-dollar proposal fails a cost-benefit analysis. Groups operating with a $10 budget have nothing to do with the problem of astroturfing; even if they did, they wouldn't be big enough to accomplish anything; and the resources and intrusiveness required to enforce a law on everyone that small would be prohibitive. You know, the "this regulation looks absurd if we change it to something absurd, so the original regulation is bad" isn'really very effective.

Grotius | May 14, 2007, 2:10pm | #

crimethink,

Well, I can't promise much ingenuity at my blog but it is interesting to a create a "little world" of one's own.

crimethink | May 14, 2007, 2:11pm | #

BTW, Grotius, I got the link to your blog from a thread on the Reason group at Big Facebook. You should check it out sometime if you haven't already.

joe | May 14, 2007, 2:11pm | #

crimethink,

"joe, you sound awfully anxious to make your omelette."

Could it possibly be that you could be assigning me a more absolutist position than I actually hold? It's been known to happen...

Grotius | May 14, 2007, 2:13pm | #

crimethink,

I am working on a very large piece on Strauss that I'll hopefully finish by the weekend and publish there. An absolutely fascinating intellect.

CFisher | May 14, 2007, 2:21pm | #

The law would apply to any group that took in at least $100,000 in any given quarter for "paid communications campaigns" aimed at mobilizing the public....

This is the problem with the bill: What exactly is a paid communications campaign? How will we define aimed at mobilizing the public?

If I run an organization that takes in donations for other purposes, but has a website, would I be guilty of running a paid communications campaign?

What if I was a watchdog group that reported on corporate and government issues, laws, scandals on its website? Am I now trying to mobilize the public?

If I report on a piece of legislation on my website that I find to be egregious and post a link on my website to a page where people can write their congresspeople a note on this, am I a paid public lobbyist or a concerned citizen? I can almost guarantee that the government will interpret me as a lobbyist, even I’m completely user supported and I’ll be subject to even more onerous costs and regulations because I chose to exercise my rights of free speech and encouraged others to do the same.

Whatever it's intent, it will be used as a silencing tactic. And it will silence the little guys in favor of corporate interests that can afford to pay the additional costs of complying with the regulations.

Grotius | May 14, 2007, 2:24pm | #

crimethink,

Anyway, hopefully the comment at Facebook was a positive one. :)

dhex | May 14, 2007, 2:32pm | #

"Nothing to add, dhex?"

not really!

you're in one of your moods, so we'll leave it at that.

Chucklehead | May 14, 2007, 2:34pm | #

At 12:55 PM.

Weird. I don't see a claim there, only a question.

crimethink | May 14, 2007, 2:36pm | #

Grotius,

Well, it was sort of neutral. It also contained a link to our old reactionary friend gaius' blog at declineandfallofwesterncivilization.blogspot.com (which I wrongly thought was a joke).

Christopher Monnier | May 14, 2007, 2:42pm | #

I don't think joe has sufficiently addressed my question of why the burden should be on individuals and non-government groups and not necessarily on the government. The reason "because they're trying to influence the government" isn't good enough for me. Interpreted as loosely as the commerce clause, we're essentially all trying to influence the government one way or another.

Why do we care who's funding the advertisements and other type of speech we see? Last time I checked, an advertisement can't confiscate your property at gunpoint. Yes, the ads are trying to ultimately influence the government, but so what...the rubber doesn't meet the road until the government actually does something.

And that's when we really need transparency--when the government is doing something (i.e. passing a law). Every law should have a transparency disclosure wherein each person or group that lobbied for and against the law is recorded, how much money was spent lobbying on the law, and who will benefit from the law.

Why waste effort on disclosing who paid for ads that *might* affect policy? Why not focus on actions by the government that actually *do* affect government policy?

Grotius | May 14, 2007, 2:44pm | #

crimethink,

Oh man, what a name for a blog.

Oh, and just to clarify (since I've been asked this a few times in "meatspace"), "ingenuus" is the Latin term for an individual, hmm, well born free. The Romans made a legal and cultural distinction between those born free and those who are manumitted; I'm of course taking some liberties with the former.

CFisher | May 14, 2007, 2:45pm | #

Or we could return to strict interpretation of the constitution, interpret the commerce clause narrowly, and eliminate the need for corporations to try and influence a small government that has no power to grant them favors.

Rex Rhino | May 14, 2007, 2:46pm | #

joe,

Can I get your full name and mailing address? I need to make sure your comments aren't part of some astroturffing campaign... your postings could easily be a fake identity created by an evil corporation. Since you are all for transparency and disclosure, you should be happy to give me that information.

In addition, please answer another question... what happens when I donate money to a grass roots campaign to increase auto safety standards... and because of "transparency" that you so love, the auto companies that I do work for decide they no longer need my services... that those services are better provided to someone more politically acceptable? I know you come from the leftist "All government legislation works 100% as planned and there are never negative consequences for a law" school of thought, but can't you see how these kinds of laws could be used to stifle political speech?

Guy Montag | May 14, 2007, 2:54pm | #

Rex Rhino,

If you keep accurate records, then beat yourself up in the office of your boss, with no witnesses, then you can have a safety campaign funded by your former employer.

Can even fore a club too.

Solyent soap can fit in there someplace . . .

Chucklehead | May 14, 2007, 2:58pm | #

Aww, it ate the rest of my question. :-(

I wanted to know, joe, why people that come together in order to urge their fellow citizens to contact their democratically-elected representatives need to be regulated if they happen to pull in a fat wad of cash?

And I still think my ten-dollar proposal is solid. Pshaw to your cost-benefit analysis. Since when does the federal government need to break even?

joe | May 14, 2007, 2:59pm | #

Christopher Monnier,

I support efforts to make the governemnt more transparent, too. Even more than astroturf groups. I don't think the minutes of these groups' board meetings need to be published for public review, for example.

Rex,

You have my full name and email address.

You know I'm not an astroturfer, because of the extremely limited distribution of my arguments.

"your postings could easily be a fake identity created by an evil corporation" Even if they were, my comments don't amount to enough of a campaign to actually matter. Hence, the cutoff in the bill.

"what happens when I donate money to a grass roots campaign to increase auto safety standards... and because of "transparency" that you so love, the auto companies that I do work for decide they no longer need my services"

You sue their asses for a civil rights violation, and win, thanks to laws supported by people like me, and opposed by people like you.

Wow, that was easy.

Seamus | May 14, 2007, 3:03pm | #

So it can be made public, and the voters can know that "Little Old Ladies Against Drunk Driving," who keep buy ads against a referendum to allow grocery stores to sell beer, is actually a group of liquor store owners seeking to protect their monopoly.

And also so that if a group of citizens want to pool their money, and that of like-minded people, to push for enactment of legislation that pisses off politicians, said politicians can arrange to have the paperwork of the citizens' group scrutinized in hopes of finding some technical violation of the law, so the leaders of the group can be fined and shut up. Or better still, so the intricacies of the law scare off the citizens' group from even getting started in the first place.

Christopher Monnier | May 14, 2007, 3:06pm | #

> I support efforts to make the governemnt more transparent, too.

But isn't this enough? Why must we violate the rights or individuals in order to achieve even greater transparency? And why draw the line where you've drawn it? Surely we could get a little more transparency if we DID require meeting minutes of board meetings...why not do this?

Perhaps you value transparency more than liberty? I believe individual liberty is supreme. We should scrounge for every bit of transparency we can get from within the government. Individual liberty trumps transparency, at least for me.

Chucklehead | May 14, 2007, 3:11pm | #

Y'know, if they call it the Federal Regulations Ensuring Egalitarian Speech Pertaining to Election Engineering Come Hell And Cresting Tides, it might pass.

Christopher Monnier | May 14, 2007, 3:16pm | #

(campaign commercial in 2008): "John Politician is a champion of free speech. In 2007 he supported the FREE SPEECH ACT to crack down on astro-turfing groups determined to deceive the American public. He's also committed to preserving America's liberty, as evidenced by his support of the USA PATRIOT act..."

highnumber | May 14, 2007, 3:16pm | #

Wow, that was easy.

What was easy? Posting that comment?

Frankly, joe, I would prefer the option of maintaining my privacy. Civil rights lawsuits sound like a pain in the ass, knowhutimean?

Paul Sherman | May 14, 2007, 3:30pm | #

For anyone interested, the Center for Competitive Politics has written extensively on grassroots lobbying disclosure (for links to lots of our previous stuff, including policy primers, op-eds, blog commentary, and the text of the Meehan proposal, go here: http://www.campaignfreedom.org/blog/id.237/blog_detail.asp).

For now I'd just like to make a few quick points.

Whatever its possible merits, grassroots lobbying disclosure is essentially a government database of citizen political activity. There's something distinctly Orwellian about that and we should be sure that the benefits outweigh the risks before we go supporting it. We can be certain that the risks of disclosure are real; for a recent example, see Sen. Kerry's grilling of Ambassador Sam Fox over the latter's donations to Swift Boat Vets. The potential benefits, on the other hand, are much less well-established.

The debate certainly isn’t furthered by the use of the term "Astroturf." This term may be more convenient than "grassroots lobbying," but it badly distorts the nature of the activity. Grassroots lobbying consists of nothing more than one group of private citizens contacting another group of private citizens and asking them to urge their legislators to vote for position X. The calls that a legislator receives as a result represent real people--not "fraudulent" people or "Astroturf" people--who were convinced by the argument they heard. This is true regardless of the speaker or the speaker's motives. It is true regardless of how well funded the speaker is; the speaker, after all, is convincing these people to call, not bribing them to do so.

CCP believes that private citizens, when exposed to such advocacy, are capable of weighing its merits and of making decisions that they believe are in their best interest. We believe they are capable of doing so without knowing the identity of the speaker, because the identity of the speaker does not bear on the merit of the argument.

Reaching a conclusion on the merits of an argument isn't always easy. Certainly it's more convenient to simply say: "I don't like Speaker X, so I will ignore his argument." But the First Amendment--and, accordingly, the protection enjoyed by anonymous speech--doesn't make exceptions for convenience; it makes exceptions for corruption. And there is nothing corrupt about asking people to contact their legislators, no matter who does the asking, who paid for it, or what they call themselves.

Again, for those who are interested in reading more about this (and other political speech issues), we invite you to stop by our website.

Sincerely,
Paul Sherman
Associate Director
Center for Competitive Politics

ChicagoTom | May 14, 2007, 3:37pm | #

You sue their asses for a civil rights violation, and win, thanks to laws supported by people like me, and opposed by people like you.


Frankly, joe, I would prefer the option of maintaining my privacy. Civil rights lawsuits sound like a pain in the ass, knowhutimean?

Hear Hear!!

I too support laws for civil rights violations, but that doesn't mean that people shouldn't be allowed to petition the government anonymously. Regardless of how much money their group might take in.

What a jackass-y mindset. Anonymity in speech is a right and very important for many people in order to be able engage politically and not face consequences which would otherwise keep them from advocating.

Dave W. | May 14, 2007, 3:56pm | #

Regardless of how much money their group might take in . . . Anonymity in speech is a right

I have always thought I should have the right to a pony. And the right to run people over iff they stay in the crosswalk too long. And other nice things. Rights = goooood.

Grotius | May 14, 2007, 4:02pm | #

ChicagoTom,

See, the numerous and manifest problems associated with this particular government program can be remedied with another government program. ;)

Biff | May 14, 2007, 4:14pm | #

We can be certain that the risks of disclosure are real; for a recent example, see Sen. Kerry's grilling of Ambassador Sam Fox over the latter's donations to Swift Boat Vets.

Oh, the horror!

The debate certainly isn’t furthered by the use of the term "Astroturf." This term may be more convenient than "grassroots lobbying," but it badly distorts the nature of the activity.

By "debate not furthered" of course you mean your side of the debate. Boo hoo.

You're being deliberately deceptive here. Nobody uses "astroturfing" as a synonym for all "grassroots lobbying", and you well know that. "Astroturfing" refers to fake grassroots campaigns where a few donors pour lots of money into organizations that pretend to be large-membership organizations (see the Parents Television Council), or more generally to campaigns which pretend to be representative of people which they are not (see the famous "Republicans for Clean Air"). By trying to conflate astroturfing (something any normal person can see as intentional deception) with grassroots lobbying (something everyone supports), you're just trying to mislead people yourself. I suppose that makes you a perfect spokesman for this particular cause.

the identity of the speaker does not bear on the merit of the argument

Please. If that were the case, none of your astroturfing buddies would bother pretending in the first place. They do it because it's misleading, and it works.

highnumber | May 14, 2007, 4:28pm | #

I think I have perfected my "Biff Translation Tool."

"I don't want to regulate all political speech. I just want to regulate the political speech I don't agree with."

Rex Rhino | May 14, 2007, 4:34pm | #

You sue their asses for a civil rights violation, and win, thanks to laws supported by people like me, and opposed by people like you.

Wow, that was easy.

Uh, where to begin?

First of all, they aren't going to come out and say "We aren't hiring you because you donated money to the wrong political campaign", the same way they would never come out and say "We won't hire you because you are an ethnic minority". You simply find that you are being passed up for those jobs. The company does a background check on you including viewing your political donations before even calling you for a consultation, and if you support political campaigns they don't like, you simply never get a phone call from them about a job. I wouldn't even know they haven't given me a job because they would simply not contact me in the first place.

Second of all, if you are a contractor, you never sue your clients... ever, for any reason. Period. End of story. Who the hell is going to do buisness with a contractor who might sue them? Even if a client did something crazy like refused to pay me in violation of our contract, I wouldn't sue them, I would eat the cost and just never do buisness with them again. But it would cause severe harm to my career to ever sue a client, no matter how justified.

If I somehow was unable to simply donate money to whoever I want via extra-legal means (as any corporation or nefarious interest with any resources will also be able to do), this kind of law would prevent me from donating to any political group. It has a horrible chilling effect on free speech and the political process. Everyone who wants a job will have to tow the company line politically.

Fortunatly, this kind of law isn't designed to prevent powerful financial interests from astroturfing (they can continue to do so illegally), but rather it is designed to destroy real grass-roots campaigning by groups who might not want to break the law.

Pain | May 14, 2007, 4:40pm | #

Biff,

Has it ever occured to you that some grassroots campaigns start as "astroturf" campaigns and then get popular support and become true grassroots orginizations. What's the difference between the two? At what point can you distinguish when one becomes the other?

Putting excessive regulations on speech is a fast way to make it so only rich people with an army of lawyers can even think about starting a grassroots campaign. Which is exactly what you seem to be railing against.

Fluffy | May 14, 2007, 4:41pm | #

Biff -

Your distinction between "astroturf" organizations and "genuine" grassroots organizations is crap.

"where a few donors pour lots of money into organizations that pretend to be large-membership organizations" - so what? How do they pretend to be anything? By the name they give themselves? If me and the two richest guys in America form a group called "Citizens for Fair Tax Law", well, guess what - we're citizens, and we're for fair tax law, so that makes the name anything but deceptive. If you're mad because you think the name implies hundreds of millions of members, too bad.

And Joe, you did not refute my absolutist position, at all. You have provided throughout this thread a handful of examples of wrongly decided cases. That's it. Debs Vs. United States? Wrongly decided. The longstanding exception to the 1st Amendment for obscenity? Wrongly decided every time. Prior restraint of commercial speech? Bad law.

Come the revolution, the persons responsible will get their just desserts. [I need a smiley icon. Can I get a smiley icon? Oh wait, I forgot: :-) ]

joe | May 14, 2007, 5:11pm | #

What Biff said.

The worst-case example the "Competitive Politics Institute" was able to come up with was...seriously, this is the one they picked to highlight...the fact that Congress and the public were able to figure out what sort of person was being nominated for an ambassadorship, and vote to defeat the nomination. Ohnoes!

Astroturf does NOT refer to grassroots political acivity, but to exactly the opposite - special interest political activity posing as grassroots activity.

And if the identity of the speaker didn't matter, why are CPI's clients - er, funders - er, members - paying so much to hide their identities?

joe | May 14, 2007, 5:12pm | #

Fluffy,

Yes, except for the past two centures of Constitutional Law, your argument about the Constitution is very strong.

R C Dean | May 14, 2007, 5:17pm | #

This is just another iteration of the argument over whether the right to free speech includes the right to spend money spreading your ideas.

The Supreme Court has ruled that there is a right to anonymity in making political speech - you cannot compel disclosure of the identity of the author of an anonymous pamphlet.

We are just arguing about whether the state can go ahead and compel disclosure of the identity of whoever paid for the anonymous pamphlet to be copied and mailed.

R C Dean | May 14, 2007, 5:18pm | #

Astroturf does NOT refer to grassroots political acivity, but to exactly the opposite - special interest political activity posing as grassroots activity.

How do you distinguish between the two? Is MoveOn Astroturf?

R C Dean | May 14, 2007, 5:19pm | #

Putting excessive regulations on speech is a fast way to make it so only rich people with an army of lawyers can even think about starting a grassroots campaign.

Which is, of course, exactly the reason our well-funded Political Masters love this kind of thing.

highnumber | May 14, 2007, 5:28pm | #

Astroturf does NOT refer to grassroots political acivity, but to exactly the opposite - special interest political activity posing as grassroots activity.

It's already been said, but...

Grassroots are "special interests," too, joe.
Speech wasn't meant to be as free when it becomes too organized?
Put up the sign from Animal Farm and be done with it then.

bigbigslacker | May 14, 2007, 5:32pm | #

joe, the kind of person being nominated for ambassador was the kind who wanted to know the truth about a narcissistic serial exaggerator who was running for president. I'm sure you would disagree with the particulars, but I think you see the point here. Would you heap the same scorn on a person who donated to Media Matters, Moveon, or (insert liberal activist group here)?

(what a stupid question!)

Fluffy | May 14, 2007, 5:40pm | #

Joe -

It should be obvious that in discussions of constitutional principle we can't be limited to existing case law and precedent. If that were the case, there would be no reason for any constitutional issues whatever to ever be adjudicated or disputed, and the body of precedent would never change.

The fact that different courts could rule in diametrically opposite ways in Plessy and Brown pretty much means that relying on precedent is a bad idea.

I have the raw text of the document on my side, since it quite plainly contains no exception for obscenity, no exception for advocating resistance to the draft, no exception for commercial speech, no exception for assembly if assembly requires the expenditure of funds, etc. On your side you have precedents that could be overturned at any moment. I bet the Washington DC government thought that they plenty of precedent that the 2nd Amendment was limited, too.

Paul Sherman | May 14, 2007, 5:42pm | #

Biff said:

Please. If that were the case [that "the identity of the speaker does not bear on the merit of the argument"], none of your astroturfing buddies would bother pretending in the first place. They do it because it's misleading, and it works.

It most certainly is the case. An idea does not become good or bad based on who proposes it; that's the very definition of the ad hominem fallacy. Rational advocates, who know that individuals are prone to those sorts of judgments, may want to conceal their identity, and the constitution gives them that right.

Obviously, they hope their argument will be adopted uncritically; every advocate hopes for that. But they certainly can't count on that, and through anonymity they can at least assure that if their argument is rejected, it is rejected on the merits and not because of bias against the speaker.

Will some people use the right of anonymous speech to forward selfish interests? Sure. And as federal power expands, we can expect even more to do so. But if you look at people using anonymous speech to seek rents through big government, and conclude that the problem is too much anonymous speech, I'd suggest you're missing both the real problem and the constitutional solution.

As for retaliation, Ambassador Fox was merely a current example. If you're unmoved by that example, I'd refer you to the Institute for Justices cases San Juan County v. No New Gas Tax (in which CCP submitted an amicus brief) and Sampson v. Dennis (information available here: http://www.ij.org/first_amendment/index.html). Both are cases where ordinary citizens were hauled into court because of campaign finance disclosure laws that (like grassroots lobbying disclosure) had nothing to do with preventing quid pro quo corruption.

Fluffy | May 14, 2007, 5:45pm | #

I also see no mechanism provided in the text of the 1st Amendment to distinguish between "real grassroots activity" and "special interest activity".

The term "special interest" has no real meaning here, since we're talking about rights that are possessed by individuals. One or two persons might have the most particular interests in the world, and their interests might in fact be completely opposed by the interest of the other 299 million Americans. That has nothing to do with their right to speak and assemble about that interest, even if it's just the two of them. Nothing at all.

Biff | May 14, 2007, 6:09pm | #

I think I have perfected my "Biff Translation Tool."

Which apparently is "pretend Biff said something he didn't actually say, and attack him for it."

"I don't want to regulate all political speech. I just want to regulate the political speech I don't agree with."

Having lurked here for a while, I usually respect your commentary, highnumber, but you're just being an asshole now. Get back to me when you're interested in an honest discussion.

Biff | May 14, 2007, 6:19pm | #

If me and the two richest guys in America form a group called "Citizens for Fair Tax Law", well, guess what - we're citizens, and we're for fair tax law, so that makes the name anything but deceptive.

What a well-chosen example. How about this or this?

Biff | May 14, 2007, 6:21pm | #

How do you distinguish between the two? Is MoveOn Astroturf?

You require disclosure and let voters decide for themselves. This is the approach libertarians are supposed to favor, instead of laws restricting donations. But maybe that was just an argument of convenience.

Biff | May 14, 2007, 6:31pm | #

An idea does not become good or bad based on who proposes it; that's the very definition of the ad hominem fallacy.

In the real world of political advertising, the identity of the speaker is part of the message. That's why it pays to pretend you are, for example, the "Consumer Coalition for Competition in Satellite Radio", as it makes voters think you are actually a pro-competition group that has researched an issue and evaluated it objectively.

Rational advocates, who know that individuals are prone to those sorts of judgments, may want to conceal their identity, and the constitution gives them that right.

Concealing your identity and faking your identity are two very different things. "Publius" vs. "Republicans for Clean Air", as I mentioned upthread.

Rex Rhino | May 14, 2007, 6:46pm | #

joe of course completly ignored my arguement where I described how making political funding public inevitably makes it possible for your employer (or potential employer) to retaliate for your political donations. Pretty much it eliminates the right to help fund political groups that disagree with your employer.

I, of course, ignored issues such as the police raiding the homes of people who donate to organization who want to reform drug laws... or people who donate to pro-choice groups being targeted for outright violence by pro-life extremists... Or people who support gay-rights organizations being kicked out of their church... or criminals targeting people who donate to anti-gun groups as homes they