[EL] the 99%

[Lori Minnite]

Most of these examples of how people might exercise a variety of 
constitutionally-protected rights are not equivalent to the limited way 
citizens of limited means can influence elections.  For example, it 
simply is inaccurate to claim that because people don't have thousands 
of dollars to spend on travel to meetings they are prohibited from 
exercising their right to assembly or to travel, or that because someone 
lacks the means to leave a large bequest to their church they are unable 
to exercise their right to practice a religion.  I agree with the call 
to think hard about the how one's ability to exercise rights depends 
upon the economic status (and power) of others.  Examples of this abound.

On 11/4/2011 11:09 AM, Smith, Brad wrote:
> I hope that you challenged students on their attraction to this passage.
> After all, by this logic, 99% of the people are unable to exercise 
> their right to an attorney (they can't afford the people at the top of 
> the profession, relying on pro bono representation or public defenders 
> of varying quality); their right to property (they can't afford 
> million dollar homes, nice cars, etc); their right to assemble (they 
> can't afford to travel far for meetings) and their right to travel 
> (they just can't travel far); their right to practice religion (they 
> can't leave a large bequest to their church or finance missionary 
> work); or their right to bear arms (few people can afford to buy lots 
> of high quality weapons). Their rights to avoid unreasonable search 
> and seizure are limited (again, they can't hire high priced lawyers). 
> It would also raise serious questions about restricting the rights of 
> media access - for example, why should Stephen Colbert have a TV show, 
> and why should Trevor Potter be allowed to appear on it over and over, 
> when 99.9% will never get such an opportunity? Surely, then, it would 
> not restrict Colbert's rights to limit him to one show per quarter. At 
> least if you think that is a substantial restraint on his First 
> Amendment rights (and those of Viacom), we'd have to wonder what that 
> says about the 99.9% that will never get 23 minutes of television time 
> in their lives.
> Issues of economic equality are real, but while many have sought to 
> address these inequalities, few have argued that they are best 
> addressed by restricting the rights of those with more resources, or 
> that the rights of "the 1%" are contingent on the economic condition 
> of the "99%," or vice versa.  One might even legitimately ask about 
> whether the costs of limiting First Amendment speech rights are 
> outweighed by the benefits in any particular instance. But the idea 
> that one's ability to exercise one's rights depends on the economic 
> status of others seems like something that students should think about 
> hard. I doubt that many who think about it much really would choose to 
> take that route - at least for those reasons.
> /Bradley A. Smith/
> /Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law/
> /Capital University Law School/
> /303 E. Broad St./
> /Columbus, OH 43215/
> /(614) 236-6317/
> http://www.law.capital.edu/Faculty/Bios/bsmith.asp
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu on behalf of 
> Rick Hasen
> *Sent:* Fri 11/4/2011 10:46 AM
> *To:* law-election at UCI.EDU
> *Subject:* [EL] ELB News and Commentary 11/4/11
>
>
>     The Ninety-Nine Percent <http://electionlawblog.org/?p=25035>
>
> Posted on November 4, 2011 7:43 am 
> <http://electionlawblog.org/?p=25035> by Rick Hasen 
> <http://electionlawblog.org/?author=3>
>
> Yesterday I began the unit on campaign finance in my election law 
> seminar, and many of the students' reacton papers pointed with 
> admiration to a quote from John S. Shockley, /Money in Politics: 
> Judicial Roadblocks to Campaign Finance Reform/, 10 Hastings 
> Constitutional Law Quarterly 679 (1983), which appears in an annotated 
> footnote in /Buckley v. Valeo/.  Here's what John wrote:
>
>     If one agrees with the Court that being able to spend only $25,000
>     to $50,000 annually on campaigning is in fact a substantial
>     restraint upon constitutional expression, what does this say about
>     the rights of the ninety-nine percent of the American electorate
>     who cannot expend even this 'substantially restrained' amount?
>     Since their ability to speak is presumably restrained even more,
>     where are they to look for the protection of their First Amendment
>     rights?
>
> It is good to know that John's work has stood the test of time, and 
> his 99% reference was entirely prescient!
>
>
>
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