[EL] the 99%

Fri Nov 4 09:23:39 PDT 2011

Professor Shockley's question, unless he would answer it, "It says nothing at all about the rights of others," evidences a fundamental misunderstanding of the First Amendment protection against governmental limitations on political speech.  He creates a false comparison.

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 not the inability to spend money on political speech that triggers First Amendment protections; it is the inability to spend because the government has made the conduct a criminal (or civil) offense.  For those who do not spend that amount because they either do not have the funds, or do not wish to devote their assets to political participation, the government has not intervened in their decision.  I submit the following re-worded inquiry, based on a hypothetical restriction on contributions for religious speech in excess of $25,000 to $50,000:

If one agrees with the Court that being able to spend only $25,000 to $50,000 annually on religious speech 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?

One could alter the hypothetical further, and instead inquire whether there is a violation of constitutional rights where some members of a faith are distant from their nearest place of worship, and lack the resources to travel to the nearest place of worship.

John J. White, Jr.
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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene
Sent: Friday, November 04, 2011 8:49 AM
To: law-election at uci.edu
Subject: Re: [EL] the 99%

               This illustrates well, I think, why many free speech advocates are so worried about "slippery slope" phenomena - the risk that narrow restrictions will over time be used to justify broader restrictions.  If limits on campaign contributions had been struck down, the argument below for restricting independent expenditures wouldn't have been available.  But that campaign contributions have been upheld, in a decision that expressly rejected restrictions on independent expenditures, is now being used, as I read it, as a justification for broader restrictions.  Instead of a clear, sharp principle - that speech may not be restricted on the grounds of "political equality" - we now have what is seen by some as a balancing test, which is now being used to argue for broader "political equality"-justified restrictions.  And if limits on campaign expenditures are upheld, then presumably the balancing test would be seen as still more restriction-friendly, and the new precedent could be used to argue for broader restrictions (e.g., restrictions on spending "too much" on issue advertising between elections, since of course that too affects "political equality" concerns).

               Now of course it's possible to see campaign contribution limits as just a narrow exception to the general rule, or as a special case of a broader rule that doesn't justify independent expenditures.  (That indeed is my view:  I think contribution limits are constitutional, because they restrict activity - giving money to politicians - that is in many ways regulated without regard to its communicative impact, and because they leave open ample alternative channels in the form of independent expenditures; but I think independent expenditure limits can't be justified that way.)  But even though this is the view that is probably most consistent with the reasoning of Buckley v. Valeo, we see that half the result in Buckley is nonetheless being urged as support for a much more pro-speech-restrictive view.

               I still think Buckley was correct on this, and that campaign contributions can be limited despite the slippery slope risk.  But, as I noted at the start of the message, it seems to me that arguments such as the one quoted below help show why free speech advocates worry about even narrow and seemingly cabined speech restrictions.

               Eugene

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of David Epstein
Sent: Friday, November 04, 2011 8:39 AM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] the 99%

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<mailto: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<tel:%28614%29%20236-6317>
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________
From: Rick Hasen [mailto:rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Fri 11/4/2011 11:13 AM
To: Smith, Brad
Cc: law-election at uci.edu<mailto: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<tel:%28614%29%20236-6317>
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto: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<mailto: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
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