Chuck Schumer's "Limits to First Amendment" Garbage a Throwback to George W. Bush Circa 1999


funding dissent somehow bad for democracy

Chuck Schumer outdid himself on the nonsense front on the Senate floor this week, when he said:

I believe there ought to be limits because the First Amendment is not absolute. No amendment is absolute. You can't scream 'fire' falsely in a crowded theater. We have libel laws. We have anti-pornography laws. All of those are limits on the First Amendment. Well, what could be more important than the wellspring of our democracy? And certain limits on First Amendment rights that if left unfettered, destroy the equality — any semblance of equality in our democracy — of course would be allowed by the Constitution. And the new theorists on the Supreme Court who don't believe that, I am not sure where their motivation comes from, but they are just so wrong. They are just so wrong.

The comments are just the latest in the whipped up hysteria over Citizens United, which relaxes restrictions on political speech during election seasons. As Nick Gillespie noted, the Citizens United decision has helped several candidates mount credible challenges to long-time incumbents. Opponents of Citizens United actually point to that fact as problematic. The incumbency rate in Congress is usually in the mid-to-high 90s. Between 2000 and 2008 the incumbency rate was between 94 and 98 percent. In 2010, the first post-Citizens United federal election, the incumbency rate slipped to 85 percent, the lowest in more than 40 years. While partisans who don't like the particular flavor of the challengers who won in 2010 might complain of a systemic problem, they are conflating their own political desires with the health of the political system.

High incumbency rates are signifiers of a broken political process. And it's not corporate money or campaign donations that help keep incumbency rates high. Through earmarks and other legislative means, members of Congress can direct federal funds to their districts. The longer they're in office, the better they get at bringing funds to their district, the more likely constituents are to vote to re-elect their representative whether they agree with his politics or not, simply because the legislator brings home the bacon. Taxpayer money in politics seems a lot more corrosive than corporate money. Politicians have effectively unlimited access to use taxpayer money in order to enrich themselves and ingratiate themselves with their constituents. All corporate money and campaign donations can do is persuade you through speech to vote for someone or other; taxpayer money can be used to incentivize voters to vote a certain way.

Not only are Chuck Schumer's deeply flawed ideas blatantly self-serving, they're the same fragile "woe is me" attitude politicians often take when people say things they disagree with. Let's take a step into the way back machine, courtesy of this 1999 Washington Post article:

When asked at a news conference in May what he thought… [about a website mocking him for his alleged past cocaine use and otherwise making fun at his expense], [George W.] Bush let loose, saying it was produced by a "garbage man" and suggesting that "there ought to be limits to freedom"–a line Bush's online critics have vowed to never let the world forget.

In case you missed it, liberals forgot. All it took was some hope and change. Bush's lawyers were keen to point out they weren't trying to silence the creator of the website (gwbush.com for those who remember the Internet heyday of the late 90s). It wasn't even a First Amendment issue in their minds:

Bush attorney Benjamin L. Ginsberg, asked to discuss the First Amendment implications of the governor's FEC complaint, raised his voice in irritation: "How is it a First Amendment issue? It is NOT a First Amendment issue."

Ginsberg said the goal was not to shut Exley down. Because Exley's site at one point urged voters to "Just say no to a former cocaine user for president," he clearly was advocating Bush's defeat and must be regulated as a political campaign committee, Ginsberg said. "The idea behind this is, if he's going to act like a political committee, he should have to reveal his funding," he said.

Or: he should have to reveal his funding because he is saying mean things about the powerful man trying to be president. Just like Chuck Schumer and every other politician targeted by people tired of their policies, the Bush team's first instinct was to restrict the free speech rights of their opponents, using campaign finance laws written by politicians to protect politicians. Of course, no politician would ever suggest restricting their own free speech, even though they often spew some of the most ridiculous and destructive garbage there is out there, willfully obfuscating issues and conflating legal concepts. Look no further than the Schumer quote at the top for proof.

More Reason on campaign finance.

I previously tackled the issue of money in politics here and here.