[EL] the 99%

Fri Nov 4 08:39:26 PDT 2011

Brad's discussion is interesting, but in fact we already restrict campaign
contributions by setting maximum allowable donations. We don't set upper
limits on how much people can speak, or how much they can spend on a house,
or how far they travel, or any of his other examples.

I think this is an important distinction. We set "horizontal" limits on
other forms of speech -- you can say what you want as long as it doesn't
infringe on the rights of others via slander, endangerment, etc. But if the
speech in question meets these requirements, there's no notion of a
"vertical" limit, that it's OK for you to say a little bit of something,
but not too much.

The presence of vertical limits on campaign contributions seems a
recognition of Rick's point that market factors and political equality can
come into conflict, and a rational system will have to balance those two
valid considerations. The only question is at what point one outweighs the
other, and this is a question to be answered by specific analysis rather
than resorting to abstract principles of free speech.

David

On Fri, Nov 4, 2011 at 11:14 AM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  Perhaps, although I think that the obvious implication is that some
> rights must be restricted for this reason. But that aside, it remains a
> bizarre construct of the idea of "rights," one that we do not normally use
> when thinking about other constitutional rights.
>
>  *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:* Rick Hasen [mailto:rhasen at law.uci.edu]
> *Sent:* Fri 11/4/2011 11:13 AM
> *To:* Smith, Brad
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] the 99%
>
> I do not believe that in this quotation Professor Shockley has advocated
> restricting the rights of those with more resources.  Instead the quotation
> gets students to think about the challenges of conducing elections in a
> system which has commitments to both the economic free market as well as
> political equality.
>
>
>
> On 11/4/2011 8:09 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!
>
>
> --
> Rick Hasen
> Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>
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