Free Speech Defeat

The Supremes have upheld key parts of the terrible "Bipartisan Campaign Reform Act," including the soft money ban and restrictions on political ads just prior to elections.

Opinion here.

Reason's Brian Doherty looked at the case here.

Comments

[Jason Ligon]

rst:

Doesn't the fact that legislators write laws mean that speech pertaining to one's preference of legislator right before an election is the most important speech you can protect?

Money donated for the purpose of purchasing air time for a candidate's message has to be a speech issue. If you told me that Kweisi Mfume could talk about reparations on a podium but that he should be prohibited from purchasing broadcast time for the same message, I would raise an eyebrow. If he then runs for office, the same eyebrow would be raised. Indeed, the policy would be even more striking in its unfairness. The uncommon message can't be advertised by law.

A candidate that can't collect money can't compete with a well known incumbent or party golden boy. Campaign finance reform is nothing more than a way to protect party honchos' ability to select the next president without having anyone else be heard from.

[Jean Bart]

A lot of people are bitching here about the overreach of the judges, but aren't the judges merely looking at law created by a popularly elected body? Its not as if the US Supreme Court decided one day to tackle this issue; it was sent to them by the US Congress and POTUS. If one is to ladelling out blame to the Supreme Court, then one should also ladel out to the other branches of government as well.

[Steve in CA]

OK, rst, I'll bite -- If judicial review is so bad, who should decide if Congress is doing something unconstitutional?

[rst]

right before an election is the most important speech you can protect?

To be clear, I do not agree with the ad decision. I think candidates should be able to come to fisticuffs right up until the polls close.

If you told me that Kweisi Mfume could talk about reparations on a podium but that he should be prohibited from purchasing broadcast time for the same message, I would raise an eyebrow. If he then runs for office, the same eyebrow would be raised.

Mfume can get up and soapbox on any network that will sell him airtime. When he runs for office, he can continue to buy airtime from whatever network will sell it to him. My concern is not in the airtime that he buys - there is no reasonable concern over corruption there - but the airtime that is bought for him. Nothing is free, and the price of goods and services for the contributors who elect officials are kickbacks and favorable legislation. We nudge, wink, and bitch about it, but the cause is the fact that we allow this minority to endebt the candidate in the first place.

[R. C. Dean]

There is no interest to protect therein, it is a magazine and its content does not on its own have any potential to alter the character or principle of government.

Ah, so as long as speech is ineffective, then it may remain free of regulation. As soon as it begins to affect government, then it may be regulated. Got it.

These revenue streams are not speech, because they have no content

So, because the contents of your bank account are not speech, lacking in content, I may prohibit you from using that bank account to buy an advertisement for any purpose, whether to express your political views or otherwise.

[Dan]

Sorry folks, but laissez-faire swings both ways.

What the fuck does that sentence mean? That because it's bad for the governmnt to regulate people, it's also bad for people to influence government?

That's the stupidest seen I've heard this week -- and I read a Noam Chomsky essay yesterday.

[Bob Straub]

Thank you, R. C. Dean. I think you have it mostly right.

Why should all honest contributors be punished because *some* contributors and politicians might engage in the spread of corruption? Punish the bad guys, not all of us, for crying out loud!

But a donation *is* speech, IMO. It is like a vote: "I support this idea/candidate this much."

This is a sad day for the country and the Constitution. I was hoping that the SC would rule against what I thought was an egregious offense against free speech but, alas, ...

[Kevin Parker]

What a disaster of a ruling. Makes me want to start a "newspaper." I could charge as much for "subscriptions" as I wanted to and I could spend as much on cirulation of my "editorials" as I could muster.

[rst]

"I support this idea/candidate this much."

And "this" much differs from "that" much by how much?

What the fuck does that sentence mean?

It means that "business" - which generates the amount of money that makes the issue compelling in the first place - currently gets a larger say in policy because it has a larger share of assets with which to influence that policy. A tyranny of a minority is no better than a tyranny of the majority.

I may prohibit you from using that bank account to buy an advertisement for any purpose

Soft money buys candidates, not the advertising. You're comparing apples and oranges.

[fyodor]

Jean Bart,

I only saw one person bring up judicial overreach, and that was Eric, and his point seems to be that overreach is caused by the same attitude or philosophy that in this case resulted in deferrence, that attitude being that judges can make any law they deem good or right rather than being constrained simply to interpret the constitution. A debatable point, to be sure, but not one you address.

[rst]

So prosecute the corruption, but leave those of us who are not involved in bribing government officials alone

The very act is bribery. You want something from the gov't, and you're putting money down for that very thing. When s/he gets there, s/he will turn around and give you what you ask for not because you deserve it, but because you paid for it. Or perhaps you think the DMCA merely sprung out of a few senators' sleepness nights...

cf. Lieberman's reaction to Gore supporting Dean. For Lieberman, it wasn't about the quality of the candidate, it was about personal loyalty Gore apparently doesn't have towards Lie/eiberman(? don't feel like lookin it up). Such selfish inconsideration for their office is a hallmark of their careers.

[Warren]

rst,
Your arguments are truly dunderheaded. You don't like the fact that people with more money than you have more power than you and you think you can change that with this oppressive law. Let me give you a clue. If you don't want to be governed by corrupt politicians... DON'T VOTE FOR THEM. The fact is people sell their votes. Not even for cash, merely the catchiest sound-bites. The problem isn't that our leaders are for sale, the problem is that people still support them. Campaign finance laws are nothing more than establishment entrenchment laws, they don't do a thing to make politicians less corrupt, on the contrary they insulate incumbents from non established challenges like third parties.

This is an extremely bad decision. Only fools and elitists can conclude otherwise.

[rst]

Campaign finance laws are nothing more than establishment entrenchment laws

I find that highly dubious given the relative lack of campaign finance reform laws throughout our history. 200 years of the American process have revealed it to be in effect nothing more than establishment entrenchment anyway. Or perhaps you think the electoral college was hatched to make elections more convenient?

people with more money than you have more power than you

Yes, it kind of detracts from any manner of respect I might otherwise give the government. If it can be bought then what is its value? Is the purpose of the Constitution to protect the price tag that dangles from our fearful leaders?

The corruption would likely not ever be prosecuted. Under our system, the very mechanisms which would prosecute it are party to it.

Your arguments are truly dunderheaded.

As are yours. It must have been very challenging to come up with such an unqualified statement.

[rst]

This is like saying we should outlaw banks because criminals keep their money in bank accounts.

Uh, no. That was saying we should prevent soft money from participating in the electoral process. It's not like saying anything else. Many comparisons are being made to private endeavors with little or no public impact. Apples and oranges.

[Mark S.]

In order to save myself the monotomy of reading a 300 page legal decisoin, could someone in the know give me the reasoning WHY the majority decided that "issue ads" aren't really protected speech?

[John Thacker]

rst, what about newspapers? Surely when they make endorsements, they're corporations influencing the electoral process. Anyone familiar with the lease terms of The New York Times knows that public policy affects them very much too and that they lobby governments. Should newspapers also be banned from running editorials?

[John Thacker]

Mark S.--
having read through a bit of the decision, they stated that since they upheld a ban before on "express advocacy" (in Austin v. Michigan Chamber of Commerce, (1990), and that banning issue advocacy is no worse, so it can stand too. That case was a 5 to 4 decision as well.

Also, here's another evil quote: " Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not "justify prohibiting all enforcement" of the law unless its application to protected speech is substantial, "not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications.? Virginia v. Hicks, 539 U. S. (2003)"

Basically, they decided that there were other rights and benefits to be had in protecting the election process, and that that was allowed to balanced and overrule the First Amendment protection. Scalia's sarcasm and Thomas's eloquent dissent are fairly devastating to this ridiculous assertion.

[Steve in CA]

Of course I agree on issue ads, independent expenditures, etc.

But I just can't accept that it's OK to bribe a politician (give them money in exchange for influence) as long as he promises to use the money for his re-election, and doesn't blatanly acknowledge that you've bought his influence. Getting re-elected is the most valuable thing in the world to a politician! That's what he'd spend it on anyways, if you just passed him a briefcase!

Can someone explain it to me?

[MJ]

The "free speech" clause of the 1st Amendment is now officially a dead letter. The most dangerous part of this decision is the "issue ads". If private citizens are barred by law from buying time on society's greatest mass media in order to further a political cause for any reason, then "Congress shall make no law abridging freedom of speech" has no real meaning as a principle. Our free speech privileges will only last as long as our political masters deem that such privileges do not endanger their power, and the Supremes will again tie logic into knots to explain why the Constitution does not mean what it says.

The plans are already under way:
"[Senator] Feingold also said the ruling would prompt further reform efforts, including public financing of campaigns and requirements that television stations offer free air time.

"The whole ruling really helps further campaign finance legislation because it gets away from the irrational fear that doing anything about it gets into free speech problems," he said."

[Mark S.]

"Basically, they decided that there were other rights and benefits to be had in protecting the election process, and that that was allowed to balanced and overrule the First Amendment protection."

Who's rights and benefits? The politicians? Of course! There is a "compelling government interest" in making sure that the worthless slimeballs in office keep their jobs. I get it now! :-

[Mark S.]

"[Senator] Feingold also said the ruling would prompt further reform efforts, including public financing of campaigns and requirements that television stations offer free air time."

Great! It's bad enough that my taxes go to pay the salary of a man I didn't vote for. (Yes, I'm from Cheeseland.) But now I'm going to have to help pay to KEEP him in office.

[John Thacker]

The problem, Steve in CA, as Julian Sanchez so eloquently explains in an article on the website, is that the Court seems prepared to slide all the way down the slippery slope in a hurry. Direct expenditures are almost the same as party expenditure, which are almost the same as independent express advocacy, which are really almost the same as "sham issue ads," and so on.

Incumbents may love to be re-elected, and they might love getting contributions for that purpose. But they love even more their opponents not being able to raise any money or campaign. In a field whether neither side can spend, incumbency is a huge advantage.

[Jeff Smith]

This is truly pathetic.

Jeff

[Jean Bart]

I could say something shrill about the US not advocating and otherwise stamping out freedom right now, but I won't. 🙂

[outrageous]

Chalk it up to yet another BONEHEADED decision by the Supremes.

What's up with these fossils? They have brief moments of true constitutional lucidity, and then spend the rest of their time with this kind of insanity.

I'm told the DC area acutally had an earthquake the other day... no doubt it was just the founding fathers rolling in their graves.

[rst]

Gotta say I half agree with the SC on this one. Sorry folks, but laissez-faire swings both ways. Freedom of speech is not an umbrella for corruption, and it's highly naieve to sit there and pretend that millions and millions of dollars in contributions from what are essentially venture capitalists investing in favorable legislation and warm, fuzzy kickbacks doesn't create actual corruption, not just the appearance thereof. Upset about the cloud of doubtful ethics that has surrounded Haliburton and Enron? Obviously you're not. When you put politics and business in bed together, our current "system" is the bastard monstrosity that results.

[Franklin Harris]

I see that once again the Constitution means whatever bubbleheaded Sandra Day O'Connor thinks it means, which depends on factors having nothing to do with the law.

[policy geek]

This is a case where I actually think pre-McCain-Feingold legislation struck a pretty good balance. I know it's controversial, but I'm willing to grant that donations aren't necessarily speech. Giving a politician money is very, very close to bribery territory, and so I see the purpose of regulating it.

However, spending limits, or banning "issue ads" right before the election, are way over the line. Buying an ad is definitely speech, in a way that giving a politician a million dollars isn't.

[John Thacker]

What's up with these fossils? They have brief moments of true constitutional lucidity, and then spend the rest of their time with this kind of insanity.

It's Justice O'Connor's world, and we're just living in it. She went with the left bloc of the Court this time, and this is the decision that results. (There were a couple other parts that Rehnquist and Thomas joined, but those correctly decided that certain litigants lacked standing to challenge certain provisions, in my opinion. They did not address the constitutionality of those provisions therefore.)

Scalia and Thomas were of course the most against this abomination, and Rehnquist and Kennedy somewhat in the middle, judging from how Kennedy's opinion, joined by Rehnquist, while overturning parts of Title II does uphold FECA paragraph 323(e) and BCRA paragraph 202, and Scalia and Thomas refused to join that part.

The majority decided that the rationale of maintaining clean elections justified the appliance of "closely drawn" scrutiny instead of strict scrutiny. They decided that multiple rights and interests came into conflict. (This is one of the dangers that can occur as the number of rights, especially positive rights, multiply.)

[Eric]

This monstrosity is one of the consequences of subjecting ourselves to the rule of the judge, rather than the rule of law as written. The court is now happily creating rights out of whole cloth while trampling out written, explicitly guaranteed constitutional rights. When we give judges the power to expand rights (sodomy, etc) we also give them the power to limit rights. If they're free to do the former, then they're free to do the latter.

Sorry, rst, have to disagree. In this case, the "solution" is about a million times worse than the problem. Our political speech will now be subject to regulation and rejection by the political system that is so awful. How wonderful.

[John Thacker]

The problem with banning electioneering contributions is that such bans tend to more negatively affect challengers than incumbents, simply because incumbents have the advantage of incumbency. A situation of perpetual incumbents certainly has even greater potential for corruption, since Lord knows there are all sorts of possible ways to achieve corruption outside of election contributions.

[R. C. Dean]

Freedom of speech is not an umbrella for corruption,

Fine. So prosecute the corruption, but leave those of us who are not involved in bribing government officials alone.

This is like saying we should outlaw banks because criminals keep their money in bank accounts.

I'm not. Would you say that a law prohibiting magazines and newspapers from accepting subscriptions (analogous to hard money contributions) is Consitutional? How about a law prohibiting them from accepting advertising revenue (analogous to soft money)? After all, these revenue streams are "just money", not speech, right?

The distinction between money and speech in First Amendment law is bogus. Maintaining the distinction means that only speech that does not consume any resources is protected speech, as any use of resources to distribute speech is not protected by the First Amendment and thus is subject to state control.

If money is not speech, so that the money flow used to fund advertisements and other means of distributing speech is subject to state control, then the purchase or use of any resources, including ink, paper, electricity, computers, etc. used to distribute speech can also be regulated by the state. The only speech not subject to regulation would appear to be conversations, or perhaps speeches that are not amplified or broadcast in any way.

If the state can regulate the use of money and other resources to speak in political campaigns, why can't it regulate the use of money and other resources to speak in other contexts?

[Karl]

I'm simply have no conception of how rational thinking person could arrive at the conclusion that banning ads advocating the election or defeat of candidate for political office is not an egregious abridgement of the First Amendment. What, they might influence the outcome of the election? No Shit? I guess I'll have to slog through the majority opininion - somehow I suspect I won't find a satisfactory answer.
-Karl

[R. C. Dean]

Sorry - I deleted the following from the above post. Should be the fourth paragraph.

I'm willing to grant that donations aren't necessarily speech

[rst]

I see that once again the Constitution means whatever bubbleheaded Sandra Day O'Connor thinks it means

That is the nature of judicial review. The Constitution has, since the onset of that particularly horrible legal premise, meant whatever the Supreme Court holds it to mean at the time. That meaning has always been some function of the case law that has come before the moment, the attached claims presented by counsel, and the particular moods of the judges. Which is why the SC can pull abortion rights out of thin air as a Constitutionally protected act, but can't see the assault weapon ban as a plain assault on an amendment that expressly guarantees the right of the people to keep and bear arms.

Would you say that a law prohibiting magazines and newspapers from accepting subscriptions (analogous to hard money contributions) is Consitutional?

Magazines are not candidates. Magazines do not write laws. Magazines do not convene subcommittees. Magazines do not hand out senate subpoenas. There is no interest to protect therein, it is a magazine and its content does not on its own have any potential to alter the character or principle of government.

How about a law prohibiting them from accepting advertising revenue (analogous to soft money)?

Not analogous to soft money. These revenue streams are not speech, because they have no content. It is an empty box, into which some speech might go, but isn't there yet. It's just a scalar number whose meaning is a function of the economic conditions of the time.

[R. C. Dean]

But I just can't accept that it's OK to bribe a politician (give them money in exchange for influence) as long as he promises to use the money for his re-election, and doesn't blatanly acknowledge that you've bought his influence.

I have made a number of campaign contributions. I have never bribed anyone. Both statements are true, because a bribe requires a quid pro quo, with the recipient agreeing to take or refrain from some action as a result of getting paid.

The candidates I gave to did not take or refrain from any action as a result of receiving my campaign contribution. Ergo, my contributions were not bribes.

Say I want to see gun control enacted. I give money to politician A. Politician A votes for gun control. Have I bribed him? Not on this evidence. Most likely, he was already going to vote for gun control, and that is why I tried to help him win office.

Campaign contributions are primarily a way of getting people who already agree with you into office, not getting someone who disagrees with you to change their position. See the difference?

[Eisenberg Jenny]

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