[EL] the 99%

[Thomas J. Cares]

Obviously, the first amendment isn't about ensuring citizens' logistical
ability to exercise the rights it protects - the crux (especially if taken
totally literally) is to prohibit government from restraining the exercise
of those rights ("Congress shall make no law abridging..." not "Congress
shall ensure everyone is able to..."). Likely, the framers, at least in
constructing the bill of rights, were not so concerned with the public
policy good that comes with everyone being able to engage in political
speech, but were addressing their sentiment that a democratic society could
only be sustained indefinitely if government has no power to stifle
political speech. I don't think it was ever their intent to rid all filters
on political speech (including a speaker's limited resources), but just to
ensure that statutes would never filter it. (Whether this applies to
candidate contributions or corporate spending, is fair game, but I think
it's unequivocal that capping what a citizen or group of citizens spends on
their own political speech (IEs) was never intended to be allowed).

Aside from that, I'll say that when I made my unsuccessful bid for the
California Legislature a couple of years ago, I saw a disconnect between
California's government and its populous to be the most important problem
that would adversely affect the state for the long term ("California's like
a magnificent skyscraper built on Jello - the 'Jello' is the way we run
elections" <http://tomcares.com/candstatement.html>). I saw state
government operating too much as an independent organism rather than the
arm of the populous and that this was not just philosophically problematic
but also resulting in very significant practical harm.

Therefore, had I been elected (though even in my campaign rhetoric)
election reform was to be my top priority. I felt CA's campaign finance
system was part of (though not actually most of) the problem, by
'redefining the real constituency'. It was clear, that those contributing
the maximum of $7K+ to legislative candidates in every election cycle -
commonly corporations and hardly ever actual voters in the legislator's
district - were the ones with the clout, and the ones who were being *really
well-represented*.

In my view the key to the campaign finance remedy was essentially to
publicly subsidize voters' campaign contributions - that even the minimum
wage worker who would never think to earmark earnings for campaign
contributions to a favorite State Assembly candidate should have a role in
funding candidates' campaigns. For example, a typical Assembly district
will have in the ballpark of 200K registered voters; if each one had a
voucher to give $15 of public money to their favorite assembly candidate,
though I'm sure much would go unused, that would put ~$3 million on the
table for potential fundraising from *constituents* in every contest. At
that point, I don't think it detracts from democracy if some spend huge
fortunes on IEs.

The general theory (behind this) is that every voter should have at least
one unit of influence in financing campaigns, but perhaps instead of
defining a unit based on what others would choose to spend or contribute
(which is how we might typically think to define it), a unit need only be
the sum required to have several great campaigns divided by the size of the
electorate. Looking at it academically, it doesn't seem necessarily harmful
if George Soros or the Koch Brothers have 10 million units of 'political
speech power', as long as each voter has 1.


Thomas Cares
(202) 64-Cares
Tom at TomCares.com

On Fri, Nov 4, 2011 at 9:23 AM, John White <white at lfa-law.com> wrote:

> 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.
> white at lfa-law.com
> (425) 822-9281 ext. 321 ****
>
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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>
> 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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>
> ****
>
> ** **
>
> --
> **************************************
> David Epstein
> Professor of Political Science
> Columbia University
> New York, NY 10027
> 212-854-7566 (W)
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