McCain-Feingold Ruling is "Constitutional Crime"

Check out Robert Samuelson's superb editorial in the Washington Post on the Supreme Court's idiotic ruling in favor of muzzling free speech, er, "campaign finance reform." Favorite lines:

"The court's decision is a constitutional crime that invites comparison with Plessy v. Ferguson (1896), the ruling that upheld racial segregation on the theory that "separate" could be "equal." Like Plessy -- which was ultimately reversed -- this decision contradicts the express language of the Constitution and will someday collapse of its own absurdities. Until then, its supporters will flatter themselves that they are improving democracy when they are actually degrading it."

Enuf said.

Comments

[StMack]

Greater wealth does not equal greater freedom of speech. At best it provides a louder voice. The homless man preaching litterally from his soap box on the corner has the same right to speech as the multi-millionare buying tv time. The size of the audience you are capable of reaching does not limit your freedom to speak.

Any one who believes otherwiser is eguating equality of opportunity with equality of coutcome.

[StMack]

Mark A,

"StMack, come on now, there are puh-LEN-ty of arguments on H&R that are weaker and more air-headed! :-)"

That is undoubtedly true, but fortunately I seemed to have missed them!!

[JAG]

Mark,
Using your reasoning (you don't have much money to spare/spend on political speech ads)that is 'unfair" (sad but true), then the only solution is to ban all money on speech.

Why? Certainly there are people who would like to "speak" politically but have NO money at all. Using your logic we would have to go down to the lowest common denominator, zero, in order to create utopian "fairness", no?
So instead of allowing maximum freedom, maximum speech, from all quarters, the need to attain "fairness" trumps the value of the dissemination of ideas (good or bad).
Sounds like a prescription for fascism.

The founding fathers trusted "the people" to sift through ideas when communication options were extremely limited and when a fairly small amount of money could buy a large amount of influence. Today, particularly with the internet, the ability to spread ideas, fact check them and rebut them virtually instantaneously is unprecedented.

Either people have the ability to make reasonably intelligent decisions, most of the time on most subjects of import to them or they don't. If you think people are political dopes, unable to form these key decisions, then why stop there? Lets force them to buy the "right" car, the "right" home, the "right" food, no?

I'd bet you see a ton of advertisements for, what you intelligently know, are dubious products. You don't buy them anyway do you? So what makes anyone think that the amount of money spent on campaigns translates automatically into political success?

[R C Dean]

StMack - I believe you are wrong. Your analysis reduces "freedom of speech" to "freedom of conversation."

Speech is the process of distributing your thoughts to an audience. The use of resources to reach a broader audiences than you can reach with your unamplified voice is an inseparable part of any "freedom of speech" that means anthing.

Your argument (which was relied on by the Republican Congress, President, and Supreme Court, so you are in good company ;-)) would permit a ban on the use of bullhorns, websites, advertising, or broadcast technology of any kind. It is the equivalent of saying that as long as the government permits to speak to those within range of your voice, then your freedom of speech is unabridged.

[StMack]

Did I say that?

I thought I was saying the opposite.

"The size of the audience you are capable of reaching does not limit your freedom to speak."

I am certainly not is company with onyone who would "permit a ban on the use of bullhorns, websites, advertising, or broadcast technology of any kind."

I wan't necessarily dealing with the concept of banning methods of speech but rather with the idea stated above that the wealthy have more freedom of speach by virtue of their resources.

I am saying that the fact that I lack the resources to run a 60 second spot during halftime of the Super Bowl detailing the number of ways in which I think Howard Dean is a moron unfit for office in no way diminishes my right to say so in whatever forum is available to me. This is in no way intended to imply that just because I cannot afford that tv spot, it should be prohibited for someone who can.

"Any one who believes otherwiser is eguating equality of opportunity with equality of coutcome"

[Visitor]

Mark A says: Therefore, someone with more disposable cash than I has greater freedom of speech than I.

This sentence confuses rights with outcomes. The right to free speech means freedom from government interference. It does not mean a guarantee of being equally heard.

Such a guarantee is impossible to make, and when a government does to try to make such guarantees, the result is tyranny.

[mak_nas]

i was going to point out that mark a. confused the concepts of rights and means, but i see every other living, breathing soul here did. 🙂

[Gadfly]

I see nothing in the constitution guaranteeing free speech to a corporation, for profit or otherwise. Nevertheless, corporations have claimed that right and participate in the political process as if they are a person. This, I believe, is the root of the problem.

The notion that teacher's unions or the NRA or Eli Lilly are citizens and have the same First Amendment rights as you or I seems a stretch. Their immunity from personal liability for things they do or say allow them to take sometimes extreme, self serving positions way out of whack with the actual people they purport to represent. We sort of created these entities in our own image and now they want to be God.

As with election laws, there have been reams of other law devised to control these "virtual" people. It seems, though, that if they were stripped of their mythical person status we would be well on our way to regaining the empowerment the constitution intended.

[keith]

All right! It's Harrison Bergeron for President!

[JAG]

Gadfly,

The right you can't seem to find is called "freedom of association". Read Scalia's dissent. He spells out the flaws in the reasoning of the majority (in general) and why, specifically, corporations, "interest groups", boy scouts and religions can get together and speak as one voice under the constitution far better than I can explain here.

[Gary McGath]

A while back, there was a mention of a proposal in Congress to force cities to refuse to accept pro-marijuana-legalization ads. At the time it was mentioned, I figured that at worst such legislation would be shot down in court. But now that issue ads are no longer "protected speech," who knows?

[StMack]

While I admire Mr. Samuelson's optimism, recent difficulties in getting anyone approaching a "constructionalist" apointed to the federal bench leaves me with little hope of getting a justice confirmed to the SCOTUS who actually believes the constitution means what it says.

Boston University Law Professor Randy E. Barnett writing in the New York Sun summed up the problem nicely

That no judge should ignore the Constitution when doing so suits their ideological agenda is a philosophy all nominees must accept. So must all senators. For they too have taken an oath to uphold the Constitution, the whole Constitution, and not just the parts that, for the moment at least, lead to results they happen to like.

In my own writing on the subject, I was considerably less hopeful for the future:

From the legislative branch that passed the act, to the executive branch where the measure was welcomed and signed into law, to the judicial branch where it was upheld by the ruling of 5 individuals, government has placed itself above the law. Its assumption of the authority to abridge our rights as individuals has voided the concept of rights and left us with a few tenuous freedoms that we will enjoy as long as they do not conflict with a compelling interest of the state. The Constitution has become functionally irrelevant and the rule of law has been deposed by the rule of man.

I hope Samuelson is right.

[alkali]

[R]ecent difficulties in getting anyone approaching a "constructionalist" apointed to the federal bench leaves me with little hope of getting a justice confirmed to the SCOTUS who actually believes the constitution means what it says.

Because we all know what the Founding Fathers thought about television and radio advertising for political candidates, I suppose.

[StMack]

alkali,

The beauty of the First Amendment is that is does not take into account the media through which speech is delivered, thus it applies to ALL 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.

The authors of the first amendment clearly could have had no idea of the evolution of communications technology. To say that the First Amendment does not apply to radio and tv advertising for political candidates because the founders didn't take it into account is the weakest and most air-headed argument I have ever read at Hit and Run.

[Mark A.]

StMack, come on now, there are puh-LEN-ty of arguments on H&R that are weaker and more air-headed! 🙂

The thing that troubles me is that, unlike many of the bill's supporters, I think that money CAN be equated to speech (Q: Why is "speak" spelled with an 'ea' while "speech" has two 'e's?) when applied to political campaigning (or advertising in general). Therefore, someone with more disposable cash than I has greater freedom of speech than I. Although I am not sanguine about the McCain-Feingold bill, this inequality of freedom doesn't seem right, either, and I'm not necessarily sure that the unrestricted spending option is therefore necessarily the lesser of the two evils (Please allow me a thoreau-style caveat/ disclaimer: I know that I am ultimately responsible for my own accumulation of wealth/ lack thereof, but I am not responsible for being born into a lower middle class/ upper lower class family, and wealth does take a while to accumulate...).

Also, for all those strict constructionalists out there, riddle me this: Does there not exist also a 'marketplace of ideas' as it were, and if so, should not the Constitution of the US also be subjected to, and altered by, such market forces?

[DonS]

Mark,

Real equality is a bullet in the back of the head, one applied to everyone equally. See Pol Pot's Cambodia, Mao's China, and Lenin's Soviet Union for approximations of equality.

Me, I choose freedom, and that means accepting the fact that some people will be better able to get their ideas across due to skill, family ties, luck, good looks, money, etc.

As far as the Constitution goes, if we want to bother with it at all we should follow it as written. That includes provisions for amending it, so that it can be "altered by, . . . market forces". It should not be altered by leftist politicians and the judges they hire.

[Gary McGath]

If it's an unjust "inequality of freedom" for people with more possessions to have a right to the use of all of their possessions, then property rights have no meaning, and the only alternative is for the government to ration out the amount of "freedom" people are permitted to exercise. But such a situation would amount to a complete lack of freedom for all. I have, for example, the freedom to use this computer. Someone without a computer doesn't. By the "inequality of freedom" theory, the only way to achieve freedom would be either to deny all people the right to use computers or to take from the people who have computers in order to give to the people who don't. Even then, I'd have greater knowledge of how to use one than the people getting their first computer would, so I'd have to be restricted in exercising my knowledge.

As for determining the constitution through market forces: What would that mean? The "marketplace of ideas" is a metaphor; ideas can't be bought and sold or have prices based on supply and demand. The metaphor signifies that some ideas are more widely accepted than others, through a constant process of interchange. In this sense, the constitution is subject to the marketplace of ideas; but "market forces" refers to a pheneomenon outside the metaphor. Unless, of course, you mean that politicians' convictions are available to the highest bidder, but I'd hardly think you're claiming that's a desirable state.

[Jimbo]

More freedom of speech for the rich?! That's like talking about weightlifters having more right to life. You either have it or you don't. Complaining about the effects of having more money to publish one's views can be compared to being upset that smarter people always best you in a debate. Should there be a law that forces everyone to write and speak at a 6th grade level to make sure that no one has an advantage in their extra "freedom of speech"?!

[StMack]

Mark A,

Is the poor man standing in front of the capital with a homemade sign that reads "congress is a bunch of addleheaded morons" any less free to express his opinion than the person with the means to broadcast the same message to 10 million people? (assuming it's not withing 60 days of an election)

[Gadfly]

James Madison once said that government's main responsibility is to protect the wealthy minority from the majority. It's doing a pretty good job here.

[Russ D]

"given two otherwise completely identical persons, and one has $1000 while the other has $100,000,000, the latter clearly has greater freedom. This, I think, is apparent, since the latter can, say, travel freely anywhere in the world"

That explains why so much of the immigration to America through its history has been by the obscenely rich.

[Mark A.]

Thanks everyone for your input.

Firstly, let me say that, given two otherwise completely identical persons, and one has $1000 while the other has $100,000,000, the latter clearly has greater freedom. This, I think, is apparent, since the latter can, say, travel freely anywhere in the world, for example, while the other must accumulate considerably more wealth before s/he can take that Tahitian vacation (I've always wanted to go to Tahiti). Thus, though I said "...money CAN be equated to speech...", perhaps I should have said something like 'freedom is a monotonically increasing function of money' or some such. I was trying to be concise, but this resulted in a loss of information. Apologies for confusion introduced by the shorthand.

I would point out (again) that the "money = freedom of speech" meme is one that I've heard from M-F opponents (not its proponents).

DonS,

"Real equality is a bullet in the back of the head" No, not quite. Who would put the bullet in the back of the shooter's head? But, your point is taken. However, I do not presume that true equality can be achieved (but I can see how you might infer this from what I said). Could we then achieve less inequality? This in turn begs the question: "Inequality of what?"

As to the marketplace of ideas theme. It need not be a metaphor, which is a mere literary device. It is that if and only if it is used as such by the writer/ presenter. My usage was (I thought) plainly as an analogy, which is a model.

In that vein:

Gary, I think you are being a little too literal. No, I did not give anyone money to purchase the Theory of Evolution; I did, however, give up some notions that my parents and the Catholic (Cthulic?) Church inculcated in me. This was the price I paid to 'buy' the idea. My point is this: the exact same mathematical forms can be used to model or describe quite diverse phenomena, e.g., exponential forms are used to model radioactive decay, the discharge of a capacitor, metabolic cycling of a toxin (biological half-life), etc. I think it is not at all a stretch to imagine ideas competing analogously to businesses in a market place of ideas. Perhaps in a similar way, evolution can be viewed as a marketplace of genes.

Jimbo, "More freedom of speech for the rich?! That's like talking about weightlifters having more right to life" isn't hitting home for me. What do you mean? Also, "Complaining about the effects of having more money to publish one's views can be compared to being upset that smarter people always best you in a debate" -- I qualify for membership in the 99.9 Society, so I think it more likely that I lose debates to those who aren't as smart as I. However, that assumes that aptitude tests measure how smart one is. 'Smart' must be defined (which is a whole other can o'worms).

StMack, you say "Greater wealth does not equal greater freedom of speech. At best it provides a louder voice". Are you suggesting that it is not a matter of degree? I think it may be ONLY a matter of degree, i.e., freedom is completely relative.

I note that a few posters say something about me confusing 'rights' and 'means'. I used neither of these terms, but this seems to underscore the difference between libertarians and myself (I don't know what to say I am, other than a registered Independent), and perhaps many of those of a more liberal persuasion. To me, 'freedom' is a completely functional term and is operationally defined; rights are not defined in this view and thus I cannot confuse them with anything. I have yet to see a cogent argument from a libertarian viewpoint that does not rely heavily on the concept of property rights.

I am not sure what libertarians think these rights are. They do seem to be something one is supposed to take on faith, like God, or 'the Red Sox will some day win the Series'. To me, I do not know of rights that have not been defined by the culture. Rights have historically been defined in this manner. Am I wrong in this? If so, what writers have demonstrated that rights exist (as some sort of free-standing something-or-other)?

Again, thank you all for your input.

[Tsao Sandy]

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DATE: 01/20/2004 09:01:14
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