Campaign Finance

Free Speech vs. the Collective

Stephen Breyer's dangerously broad rationale for campaign finance regulations

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Last week the Supreme Court overturned federal limits on the total amounts that one person may contribute to candidates and political committees during a single election cycle. "The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candiĀ­dates it may endorse," the Court declared in an opinion by Chief Justice John Roberts.

But according to Justice Stephen Breyer, who wrote a dissenting opinion that was joined by three of his colleagues, the restrictions challenged in McCutcheon v. FEC are perfectly compatible with the First Amendment, which "advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters." The idea that individual rights must be sacrificed for the sake of a vaguely defined collective interest reflects the dangerously broad agenda of campaign finance "reformers," who seek to shape the political debate so that it comports with their own notion of the public good.

Preventing corruption is the traditional justification for limits on campaign donations. As you might expect given his nebulous aim of "preserving a democratic order in which collective speech matters," Breyer favors a broad definition of corruption, including not just "quid pro quo bribery" (such as agreeing to vote for a bill in exchange for a donation) but also "undue influence."

While everyone understands what bribery entails, undue influence is in the eye of the beholder. On the day McCutcheon was argued, for instance, President Obama worried that it would exacerbate a problem created by the Supreme Court's 2010 decision in Citizens United v. FEC, which lifted restrictions on political speech by unions and corporations. The problem, according to Obama: too much speech of the wrong sort.

"You have some ideological extremist who has a big bankroll, and they can entirely skew our politics," Obama complained. "There are a whole bunch of members of Congress right now who privately will tell you, 'I know our positions are unreasonable, but we're scared that if we don't go along with the tea party agenda or some particularly extremist agenda that we'll be challenged from the right.' And the threats are very explicit, and so they toe the line. And that's part of why we've seen a breakdown of just normal, routine business done here in Washington on behalf of the American people."

In short, Obama thinks Citizens United was "devastating" (as he called it a few days after the case was decided) because it freed his opponents to criticize him and interfered with business as usual in Washington. Many Americans would see those as advantages. In any case, it's clear that Obama views campaign finance regulation as a way of managing the political debate and keeping it from becoming too "extremist," a rationale the Court has never endorsed and one that is totally at odds with the First Amendment's command that Congress "shall make no law…abridging the freedom of speech."

Similarly, the editorial board of The New York Times, which decries "the distorting power of money on American elections," cites the "broad ideological change" sought by "the Koch brothers" as a reason to keep the aggregate caps on campaign contributions. "To equate the ability of billionaires to buy elections with 'freedom of speech' is totally absurd," Rep. Bernie Sanders (I-Vt.) opines, while Sen. John McCain (R-Ariz.) bemoans "the undue influence of special interests" and Rep. Nancy Pelosi (D-Calif.) complains that "the Supreme Court has chosen to pour even more money into our process and our politics."

As self-financed candidates periodically discover, you cannot really "buy elections." Even if a candidate is interested only in gaining and retaining power, he has to convince voters he is worthy of their trust. The "undue influence" that worries Breyer, Obama, Sanders, McCain, and Pelosi is ultimately based on the power of speech to persuade, a power Congress is forbidden to regulate.

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  1. Public interest. One of the most dangerous phrases to individual liberty spoken by anyone who cashes a government paycheck.

    1. When someone says “the public interest” they mean “everyone except you.”

      So yeah. For the public interest to be served, there must be no individual rights at all.

      Well, except the right to kill unborn children. That individual right is sacred.

  2. Obama complained. “There are a whole bunch of members of Congress right now who privately will tell you, ‘I know our positions are unreasonable, but we’re scared that if we don’t go along with the tea party agenda or some particularly extremist agenda that we’ll be challenged from the right.’

    IOW, democracy.

    1. That’s bullshit, anyway, because Captain Unreasonable is in the White House. Obama is not exactly known for his negotiating skills.

    2. The “extremists” he is complaining about are more influenced by votes than money. Also, the way he formulated that excludes an “extremist” coming from the left. Personally, I find his agenda extremist, particularly in the executive micromanaging of private relationships.

      1. Well, it is rather difficult to imagine an extremist coming at Obama from the left.

      2. And by “extremist”, he of course means anyone to the right of left center

    3. Progressives: Protecting democracy from the will of the people since 1980.

    4. That comment reveals the underlying assumption on the left that the Tea Party and all “extremist” groups on the right are being tricked into voting for the agendas of the left’s boogeymen like the Koch’s. They really seem to have a hard time accepting that there is anyone outside of the “1%” that is well informed but just doesn’t share progressive values.

  3. As I said elsewhere, if in the run-up to an election I don a sandwich board that says, “Jacob Sullum is evli; vote for Jesse Walker”, and walk around with it and chanting the slogan, that’s free speech. If I record it and pay to have it put on TV, that’s suddenly evil evil evil campaign finance.

    If I own a newspaper and write an op-ed piece about how Jacob Sullum is evil and you ought to vote for Jesse Walker instead; that’s freedom of the press. If I don’t own the paper and pay to have the same op-ed piece put in as an advertisement, that’s again evil evil evil campaign finance.

    The differences don’t make sense to me. If something can be both a penalty and a tax, can’t something be paid for and free speech?

    1. Don’t you see? In one pair you’re using hard work to reach an audience, in the other, you’re using Eeevil Profits to reach an audience.

      1. Profits are scientifically proved to be evil. It is fact.

        1. Profits killed all my goldfish when I was growing up.

          1. Profits was your cat?

    2. Their arguments apply equally to the sandwich board (cardstock is not speech!) and to the op-ed (corporations do not have rights!) except the sandwich board is beneath their notice and the “press” is somehow imbued with more rights than ordinary people.

      The distinctions don’t make sense.

      1. The “press” are scientifically proved to be imbued with more rights. It is fact.

      2. The press are people who have asked permission. Licenses, permits and such. Individuals have not.

    3. What I’m getting from this is that Jesse Walker is in the pocket of big commenting.

      1. I was going to use Lucy Steigerwald instead of Jesse, but I figured that might not go over so well. šŸ˜‰

        1. Indeed. Lucy has been fully infected with Raimondo ick. The black vicious slime layer covers her entire body and continues to be excreted by her mucous membranes. What was once human in her has now died and we can only mourn what she could have been.

    4. “The differences don’t make sense to me.”

      Geez Ted, you are smarter than that. The difference is simple. If you are a racist who disagrees with Obamessiah being effective in getting your message out is evil and you must be shut down.

      http://www.breitbart.com/Breit…..d-of-Hoods

  4. “No law,” you fucking asshole. No. law.

    1. That part everybody gets. The contentious part is the word “freedom”.

  5. This came up when the decision came down. The “collective rights,” such as they are, are set forth in the articles of the Constitution. In other words, they are represented by the limited, enumerated powers ceded to the government by the people.

    Other than that, there are no collective rights, only individual ones.

    This is all Rousseau’s amorphous volont? g?n?rale all over again. It’s really just a convenient excuse for power grabs in the name of the people, but it’s not about rights.

    1. “The “collective rights,” such as they are, are set forth in the articles of the Constitution.”

      In other words they are a complete fabrication, a la positive rights.

      1. Sure. They aren’t really rights, but that’s the one place you can argue that the government is acting on a collective basis. It has no meaning in the rights context, except negatively.

  6. The idea that individual rights must be sacrificed for the sake of a vaguely defined collective interest reflects the dangerously broad agenda of campaign finance “reformers,” who seek to shape the political debate so that it comports with their own notion of the public good.

    You will find the public’s right to your speech in the well-known Penumbra Clause of 1A.

    1. It’s part of the residuum of sovereignty that protects the scheme of ordered liberty.

      1. It’s we the people in the Preamble, not a list of individual names.

        GAME, SET, MATCH.

        1. You’re forgetting the list of individual names at the end. The People of the United States consist exclusively of the signers of the constitution.

          1. ALL DEAD WHITE SLAVEOWNER BASTARDS.

  7. “This came up when the decision came down.”

    Liberty walked out when Breyer walked in.

  8. We kept asking anti gun rights people if the 1st was a collective right like they say the 2nd is. I guess we got our answer.

    I’ve never heard why the Citizens United movie is political speech, but Fahrenheit 911 is protected art.

    1. Because fuck you, that’s why.

    2. Just stick with the leadist interpretation of the 1st amendment and say neither one is covered. Worked for Ollie Holmes.

  9. “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”

    Paging Vladimir Nabokov. Vladimir Nabokov, please pick up a white courtesy phone.

  10. the public’s interest in preserving a democratic order in which collective speech matters

    I read this ten times and I still don’t know what he’s talking about. Translations would be appreciated.

    1. I’m guessing that he thinks that if one individual can spend vastly more than others, then collective speech (lots of people pooling less resources) loses to individual or small group speech. Which I’m not convinced of. But even if you accept it, you still have to assume that voters will simply vote for the guy with the loudest mouth. It actually shows a fundamental lack of trust in voters, and hence the democratic order.

    2. Try capitalizing the “D” in “democratic.” It makes much more sense that way:

      “preserving a Democratic order in which collective speech matters,”

      aka newspeak as governed by DNC

  11. problem created by the Supreme Court’s 2010 decision in Citizens United v. FEC

    Have any of the apocalyptic predictions surrounding Citizen’s United come to ass

    1. Er, come to pass?

    2. Love the typo.

  12. A Miami city official driving around high on meth with a tin full of drugs in his car had another surprise for the arresting officers.

    Hialeah city purchaser Carlos Lopez was arrested in December after Fort Lauderdale police noticed him driving slowly and speaking to a group of men who ran away when they saw the patrol car. When police pulled him over, the officers found him to be “visually shaken and sweating…flushed from an apparent rise in body temperature and pupils were dilated.”

    Using a canine unit, they found a small container of meth in the car, and according to police reports, later found a small glass meth pipe in Lopez’s rectum.

    According to the Miami Herald, amazingly Lopez was not fired, but instead transferred to a leadership post in Public Works.

    Amazingly? Really?

    1. Public Works? I would have guessed Animal Control.

    2. Amazingly? Really?

      I know. That’s not even a real word.

    3. He’d already displayed an innate affinity for plumbing. It’s not really a stretch.

  13. “You have some ideological extremist who has a big bankroll, and they can entirely skew our politics,” Obama complained…. you mean someone like Geo. Soros?

    1. You have some ideological extremist who has a big bankroll, and they can entirely skew our politics

      You mean, like Obama’s big bankroll, currently being used to fund Organizing for America, his private campaign/pressure organization?

  14. Justice Stephen Breyer’s opinion is in line with the anti-freedom logic of Oliver Wendell Holmes, Jr.

  15. tl;dr version:

    Reason gets a lot of things right, but you missed this one. Allowing unlimited campaign donations is no more a libtertarian interest than allowing voter fraud. It just happens to be more palatable to most libertarian’s tastes.

    Long version:

    While I’m not a big fan of Brewer, the point he’s making (and that Mr. Sullum and pretty much everyone in the comments section is ignoring) is that certain forms of political expression are (obviously) subject to very pragmatic restrictions that are necessary for a democracy to function.

    For example, voting is very much a form of expression, and I can vote for whoever I want, but I can’t vote for as many people as I want, or vote for a candidate as many times as I want, for reasons that should be obvious to even the most casual observer.

    Or, to put in libertarian speak, you’re infringing on everyone else’s right to have elected officials that accurately represent the views of the electorate.

    You can dispute the extent to which campaign donations are similar to voting,* but to argue that individual rights can never be limited when they conflict with democratic function (e.g. ‘everyone else’s rights’) is absurd.

    *You’d be wrong though – a quick glance through history will give a pretty good indication of what happens to a democracy when a small number of people wield vastly disproportionate influence over the process.

    1. Agree with you to a certain extent.

      I just don’t see how we could have a functioning libertopia if anyone can give arbitrary large sums to politicians in the name of campaign contributions. If you include the libertarian love for anonymous speech, then the situation looks even worse.

      Can we get any meaningful sort of copyright reform, if Disney can give each senator or congressman a half-million dollars each secretly?

      Or tax reform? Or Fair beer distribution laws like in Florida?

      1. Then maybe Congress shouldn’t be in the business of messing with copyright law? Or people should vote out senators who jerk around copyright law? Or Congress and the rest of the Fed should have their duties reduced to Constitutional ones so that the people can properly scrutinize their legislating? Or people can ask their legislators if any hanky-panky like that is going on, and act accordingly if lying has occurred?

      2. Can we get any meaningful sort of copyright reform, if Disney can give each senator or congressman a half-million dollars each secretly?

        The law is not a secret and how your legislator voted on it isn’t secret either.

        It does not matter how much money Disney gives to a congressman, it matters whether or not the voters will remove him from office at the next election because of how he votes.

        1. “It does not matter how much money Disney gives to a congressman”

          Not to impugn your judgment on this matter, but I wonder whether Disney or the congressperson would agree with you. I suspect a half million matters very much to them.

    2. Allowing unlimited campaign donations is no more a libtertarian interest than allowing voter fraud.

      Campaign donations involve the donor and the recipient.

      Voting involves the voter and the government.

      The government is not party in the first arrangement, and so it is not in a position to “allow” anything.

      While I’m not a big fan of Brewer, the point he’s making (and that Mr. Sullum and pretty much everyone in the comments section is ignoring) is that certain forms of political expression are (obviously) subject to very pragmatic restrictions that are necessary for a democracy to function.

      Since you can’t even understand the distinction between what the government is responsible for doing and what the government is capable of doing, you are hardly in a position to lecture anyone about what they do or do not understand.

      I understand that a better funded campaign can reach a larger audience. That does not mean democracy is failing to function. No one is forced to vote for the most monied candidate; but if they choose to do so, it is their right.

      What I don’t understand is this notion that democracy is being subverted because some people have more money than others. There is only one thing that wins elections, and that is getting the most votes.

      1. “There is only one thing that wins elections”

        There are many ways to win an election. Do you seriously believe otherwise?

    3. Or, to put in libertarian speak, you’re infringing on everyone else’s right to have elected officials that accurately represent the views of the electorate.

      That is not a right. You can’t just throw the phrase “right to” in front of something and magically make it a right.

      You have no right to compel your fellow citizens to constrain their political expression in order for you to get a more favorable outcome.

      You can dispute the extent to which campaign donations are similar to voting

      They’re not. At all. This is why understanding causality is so important.

      People vote, and the count of their votes determines the election.

      It is legitimate to ask whether or not the votes are being counted correctly, since the government does the counting and you are a stakeholder in the government.

      It is not legitimate to ask whether or not people are voting they way they are for “the right reasons” or not because you are not a stakeholder in other people’s lives.

      a quick glance through history will give a pretty good indication of what happens to a democracy when a small number of people wield vastly disproportionate influence over the process.

      The Republican and Democratic Parties wield “vastly disproportionate influence” over the way voting is conducted in this country. So surely the government should step in and abolish those parties, right?

      1. “People vote, and the count of their votes determines the election . . . ”

        So . . . given your assertion that only the vote count itself is protected, you would have no objection to, for example, UAW offering each of its members $1000 to vote for a particular candidate? After all, that would be an agreement between UAW and its members, and surely you or I are in no position to object to such an agreement . . .

        As for the parties wielding disproportionate influence, you’re sort of missing the point. The parties themselves are the thing being influenced – the whole point of the aggregate limits that SCOTUS removed was to prevent a single person or group of people from buying one of the major parties outright. As a hypothetical example: Given enough money, someone like Bloomberg can buy the Democrat’s selection process by offering to fund all of their candidates in return for lock step support for his positions. Yes, Bloomberg/MAIG already tries to do this indirectly with ads, but having direct control over the party machinery is much more effective.

    4. You can dispute the extent to which campaign donations are similar to voting, but to argue that individual rights can never be limited when they conflict with democratic function … is absurd.

      Let’s not dispute that for the moment, but ask whether their similarity or dissimilarity has any bearing on whether the first amendment applies to one or the other. The first amendment says, “Congress shall make no law ? abridging the freedom of speech?” One may argue whether the clause means to protect non-political speech or not, but it is absurd to think it’s intent isn’t to protect political speech and it is equally absurd to suggest that it isn’t anything but unequivocal in protecting political speech absolutely. The first amendment allows for no exceptions. (It could be argued that the fact of there being no allowance for exceptions is evidence the amendment was intended to only protect political speech and that had it been intended to protect all speech it would not have been expressed in such absolutist terms.)

      1. We may wonder whether the framers thought unfettered political speech was exactly in tune with the democratic function or if they simply failed to consider the possibility that unfettered political speech could be at odds with the democratic function. We know the words are simple and unambiguous. We know the framers themselves were political men; we know the framers where not politically na?ve. We know that the framers often expressed a cynical, if not jaded, option of the men who practice politics and the nature of political machinations. We know the framers incorporated the absolute right to freedom of political speech while they themselves lived and wrote in the context of and in consideration of as corrupt a political environment as we find ourselves. We have no reason to assume the framers did not take into account the democratic function, in full measure, when incorporating the First amendment.

        To put it into asshat speak, fuck off asshat.

        1. Easily offended much?

          The trouble with asserting a absolutist position about the first amendment (or pretty much anything else) is that there will be cases where the first amendment conflicts with other principles. This is why there *are* in fact limits on speech (political or otherwise) – at some point, person A’s right to free speech infringes on some other principle and is restricted. Phoning a polling center with a bomb threat may be an expression of your political views, but it is not protected by the constitution because it infringes on other people’s rights.

          You can disagree about where to draw that line, and there are legitimate arguments that campaign donations don’t unduly influence the process, but to argue that no restriction of ‘political’ speech is permissible is untenable.

    5. The idea that democracy works in a way in which “the electorate” has “views” that politicians represent and that are somehow undermined by campaign contributions is ludicrous. The electorate doesn’t have views on most things, it has many views that contradict the Constitution, and on those issues that people care about it is usually split.

      And let’s look at history and how democracies end, specifically the Weimar Republic. Did it end because rich industrialists took over the German government? Quite the opposite, actually. It ended because Hitler appealed to the masses with an anti-finance, equality, and social justice message. Hitler told Germans that they were being robbed blind by bankers and capitalists, and that he was going to make sure that average Germans were properly rewarded for their hard work. German politicians gave into popular will when they put Hitler in charge despite their better judgment. Democracies are rarely taken over by rich people; rich people, by and large, want markets to function and consumers to be able to buy stuff. Usually, democracies end because of takeovers by socialists, fascists, clerics, or the military. In addition, the Weimar Republic had numerous restrictions on political speech intended to limit speech and views deemed harmful to democracy, and the net effect was not to protect democracy, but to speed its demise.

  16. That comment, there are a number of people in Congress that vote against their conscience because of the Tea Party holding them to ransom, and Obama knows this because ‘privately they will tell you’, as if that has happened to him, is a lie.

    Does he ever stop lying?

  17. Is there any evidence that money wins elections? I know there is a link between the amount of money spent, and the outcome of the election, but what is causative to what? Obama was more popular than McCain. He looked like a winner, compared to McCain. The Press loved him. He therefore raised money more easily. The amount of money he raised was indicative of how people would vote, not necessarily causative to him winning the election.

    Those evil Koch Brothers – amazing a couple of unfamous people get so much press – could donate $10 Billion dollars to getting anti-abortion Conservatives elected and I don’t think they could turn back the tide on abortion. Same goes with a pro-gay marriage supporter 25 years ago. Donate $10 billion to pro-gay marriage candidates 25 years ago would have accomplished diddly squat.

    1. (With the caveat that I’m paraphrasing, and don’t have links to the actual studies…)

      Sort of – my understanding of the current research is that what most people think of when they think of campaign spending (ads, etc) is a threshold thing – as long as you spend approximately as much as the other candidate, it doesn’t really matter who aired slightly more ads. So for the current balance of power between Dems and the GOP, it doesn’t matter a lot. But large differences matter – consider the difference in name recognition and airtime for Romney or Obama vs. Gary Johnson.

      The thing that I think folks tend to ignore in these debates is that it’s less about the ad time, and more about influence. Both parties need large amounts of money to compete nationally at all levels, and to a large extent they are beholden to whoever contributes that money. Campaign finance regulations are more about keeping bribery in check than anything else.

  18. ” I know there is a link between the amount of money spent, and the outcome of the election, but what is causative to what? Obama was more popular than McCain. He looked like a winner, compared to McCain. The Press loved him. He therefore raised money more easily. The amount of money he raised was indicative of how people would vote, not necessarily causative to him winning the election.”

    Strikes me as naive nonsense. Obama had a marketing team that eventually won an award for their work. It was never a matter of being ‘more popular than McCain.’

    If the Koch brothers are spending $10 billion without electoral success, maybe they should use some of that money to hire Obama’s marketers. Just how badly do they want to win?

    1. Obama had it easy: all he wanted to do was win, and he was saying whatever it took (i.e., lying through his teeth). In addition, Obama had the entirety of the US federal budget to pay off voters and special interest groups after winning.

      The Koch brothers have a much harder task: they actually want people to come around to their point of view. Furthermore, the ideology they are promoting prevents them from using federal tax dollars to pay off voters and special interest groups even if they win. In different words, even if the Koch brothers spent billions of dollars, they couldn’t come close to the trillions Obama has been handing out.

      1. “The Koch brothers have a much harder task”

        As I said, if the Koch brothers aren’t up to marketing their ideas, they should hire marketing specialists. Most of these campaign contributions goes into marketing projects. If the Koch brothers have been unsuccessful perhaps they are spending money unwisely, or their ideas are simply not attractive in the first place. Pulseguy’s anti-abortion example is just such a loser.

  19. Ideological extremists don’t need a big bankroll to “skew the entire debate”. Our current airhead president seems to have managed to do so without a big bank account.

    1. “Ideological extremists don’t need a big bankroll to “skew the entire debate”

      Obama strikes me as a fairly conventional politician and lacking in strong beliefs. I’m not even impressed by his much vaunted rhetorical skills. When he ran for president against McCain, he was not a president but a senator and he did indeed have a big bankroll, and spent up to half a billion dollars if memory serves. I don’t know why you seem to denigrate the power of a large campaign chest or its ability to sway a bored and ill-informed electorate, especially when you evidently believe in the rights of candidates to amass large campaign funds. Do you see the contradiction? Others here apparently don’t.

  20. This whole debate is about trust of politicians – the other guy’s politicians, not the one you voted for, of course. Because even if a group got together to donate a million dollars to their politician, that group would never say that their politician would ever do anything special for them – because their politician is a good person.

    Over two elections, Obama has been given billions of dollars (most recorded of any US politician) by all the various Democrat people and groups – none of whom would ever comprehend that he would do anything other than vote his(their) conscience. But, of course, all the non-Democrat politicians are evil – they never could possibly be voting their(their) conscience and so must be being influenced by a greater evil.

    I hate stupid, insecure sheeple – there are too damn many of them.

    1. It’s definitely about trust (or lack thereof) in politicians. But I think the realist defense of campaign finance regulation is that politicians (of both parties) are self-interested at best and outright corrupt at worst.

      Will there always be some graft and influence peddling? Of course. I fail to see why that makes it a good idea to make graft and influence peddling easier though.

      1. It makes it a good idea to shrink the government to such a degree that politicians have nothing to offer for sale.

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  23. Dudes, this is just one 94 year old idiot, who cares what he says. You want to pretend this is the same soul as the asshole supreme court justice, but it’s not.

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