More Thoughts on Money and Politics

November 7, 2012

I’ve written before on what a disaster the U.S. Supreme Court’s decision in the Citizens United case has been.  Yesterday’s election, and the campaign leading up to it, again emphasized how that decision has fundamentally changed and degraded the American political process.  While it’s true that in some cases a candidate or ballot measure won in spite of being badly outspent, I don’t think it shows that money has no influence.  To use a sports analogy, if I had gone into the boxing ring against Muhammed Ali when he was in his prime, and he started the fight with one hand tied behind his back, there is little question in my mind that he’d still win easily.  Likewise, when a candidate or ballot measure is so obviously superior, large amounts on money won’t necessarily save the inferior candidate or issue position.

This brings me to another analogy (also from sports) that I think shows clearly why Citizens United was wrongly decided.  We all know that Lance Armstrong was a great athlete.  We also now know that he used steroids to enhance his performance.  Whether he could have won his many championships without using steroids is, at this point, impossible to say.  However, I think virtually everyone would agree that for him to use steroids in a situation that gave him an unfair advantage was wrong.

I would suggest that allowing a candidate or political committee to raise, donate, or spend unlimited funds, and especially to allow that to happen without anyone knowing where that money is coming from is like allowing someone to go up to Lance Armstrong as he prepared for a race and inject him with a needle-full of lord knows what kind of drug.  That’s not allowed in sports, and it shouldn’t be allowed in politics.

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Political Campaigns, Free Speech, and the Citizens United Decision

November 7, 2010

This November’s election was our first real chance to see the effects of the U.S. Supreme Court’s Citizens United decision.  The results are ominous for the future of U.S. politics.  Bucketfuls of money poured into political campaigns, both directly and as unregulated “independent expenditures” from groups such as the U.S. Chamber of Commerce, who are no longer required to even disclose where the money is coming from.  As a result, moneyed special interests are exerting an influence unparalleled since the end of the “gilded age” of the 1880s.

The irony is that the Citizens United decision is based on a fundamental misreading of the First Amendment to the U.S. Constitution.  That amendment states, very simply, that, “Congress shall make no law respecting … …or abridging the freedom of speech … .”  As with all of the provisions of the Bill of Rights, we now have over two hundred years of Supreme Court jurisprudence interpreting that simple phrase.  The U.S. Supreme Court’s decisions have made a sharp distinction between regulating the content of speech and regulating the “time, place, and manner” of speech.  While the former is subject to “strict scrutiny”, requiring that any regulation be narrowly tailored and necessary to address a clear and present danger to a substantial interest of the state, the latter allows regulation so long as it is even-handed (i.e., content-neutral — applying equally to all speech, regardless of what it’s about).

In Buckley v Valeo, the Nixon-era Court, led by Chief Justice Warren Burger, decided that money was equivalent to free speech — i.e., regulating political contributions or expenditures was the same as regulating political speech.  A moment of thought should show the error that opinion created.  Money does not create political speech, hence regulating how much gets donated or spent doesn’t prohibit speech — it just regulates how loud that speech is. 

Just as a city can prohibit sound trucks from blasting political speech (or any other kind), so it would seem that government ought to have the power to limit how much money gets contributed or spent on political campaigns.  However, the complicating factor is that, in order to be content-neutral, such regulation would have to apply to all kinds of speech; not just political speech.  For example, the FCC could promulgate a regulation limiting how much time any one advertiser could buy for on-air commercials in any particular period of time (say, for example, no more than 1% of the broadcast day).  The post office could similarly limit how many pieces of advertising mail could be mailed in any one period.  However, in order not to invoke strict scrutiny, such regulations would have to apply to all kinds of mailings, not just political advertising.  This could be problematic; but, on the other hand, it could greatly cut down on the amount of junk mail and TV and radio ads Americans have to deal with — something that I suspect would delight most people.

The other option would be to identify a justification for content-specific regulation of speech that would survive strict scrutiny.  In the past, the Supreme Court has sometimes accepted preventing corruption or the appearance of corruption as justification for limiting direct campaign contributions, but not campaign expenditure or contributions to non-candidate-based political committees.  Since the Citizens United decision, however, it’s unclear if that will still work.  The court has repeatedly rejected arguments about trying to maintain a “level playing field” for political candidates.  Evidently, the Court feels that fair play has no place in the American political process.

One wonders, however, whether there’s an argument to be made that when one side can effectively drown out the other side’s voice — the equivalent of blasting away with loudspeakers so that other people can’t even be heard — government has a right to step in to protect the free speech right of those being overwhelmed.  Perhaps there needs to be the equivalent of the Sherman Antitrust Act to protect the free market of ideas from being monopolized by one group’s raw monetary power?


More on judicial voting

October 21, 2010

The California Supreme Court just came out with an interesting non-decision that bears on the November election’s confirmation votes.  The justices voted not to hear a petition for review on a recent appellate case on free speech in shopping centers.  At issue was a preacher who was talking to willing listeners about his religion.  A security guard came up and told him to stop.  When he refused, he was handcuffed, arrested, and escorted from the mall.  He was later released and charges were dropped, but he sued the shopping center for false arrest and interference with his California free speech rights.  While the trial court rejected his suit, the court of appeal, in an opinion written by the new chief justice, Cantil-Sakauye, reversed.

Cantil-Sakauye’s opinion pointed to a California Supreme Court opinion from the Bird court some thirty years ago that said that the California Constitution’s free speech rights guarantee was broader than that of the U.S. Constitution, and covered semi-public places like shopping malls.  Under that ruling, and subsequent appellate case law, while shopping malls can make reasonable regulations about the time, place, and manner of speech, they can’t make content-specific rules unless those rules are justifiable under “strict scrutiny”.  The rules this mall had promulgated, which only allowed conversations related to commercial  transactions, were absurdly narrow and subject to blatantly discriminatory enforcement (as was evident in the case).  Nevertheless, Justice Ming Chin, along with Justice Baxter (the long-standing right-wing bulwark of the court) voted to grant review.

Cantil-Sakauye and Ming Chin are both on the ballot for confirmation this election.  This appellate decision and its supreme court review suggest that you might want to vote for one or the other, but not both.  If you agree with Cantil-Sakauye’s ruling, you should probably vote for her and against Ming Chin’s attempt to reverse more than thirty years of precedent.  If you’d rather have restricted speech in shopping malls (which is where Ming Chin probably wanted to take things), you should vote for him and against her.


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