[EL] Animals, androids, space aliens, ghosts or rocks
Smith, Brad
BSmith at law.capital.edu
Mon Sep 22 10:19:12 PDT 2014
I've pointed out to you before, David, that you have failed to read or to understand (one of the two) my prior writings.
You want answers to things you won't answer yourself. Meanwhile, I have answered your questions, but you refuse to accept the answer.
I agree with you that in election law, there are many competing values.
But because I'm a good sport, I'll try again:
Question 1: Should any entity or person that wants to donate or expend money for political purposes be able to do so in any amount they want? In effect, regardless of whether something is a person, should any entity be able to convert its entire economic resources into political donations or expenditures without limit?
Answer: I don't know. Generally, yes, but there are many exceptions. Exceptions for certain time/place/manner restrictions make sense. There is a strong argument for an exception for foreign actors as outlined in the Court of Appeals decision in Blumen. It's also worth noting that I'm not really big on absolutes. If you want to restrict contributions to $1 billion, I could live with that.
Qustion 2. Should any entity or person that wants to donate or expend money for political purposes be able to do so without having to disclose it?
Answer: It depends on what you mean by "political purposes." Generally, I am for maximizing freedom (including the freedom to speak or engage in any other political activity without being forced to report it to government or reveal it to your neighbors under compulsion of law). But of course I have and continue to support some compulsory disclosure rules.
Question 3. I trust you have read my book by now?
Answer: No, I have not.
Your turn.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Schultz, David A. [dschultz at hamline.edu]
Sent: Monday, September 22, 2014 12:55 PM
To: Smith, Brad
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Animals, androids, space aliens, ghosts or rocks
Brad:
I am not playing law professor/student with you in terms of hiding the ball. I asked two questions--answer them or not it is your call. But then I asked a third whether you have read my book, so now you have three questions you can choose to answer or avoid.
Telling me what your position used to be does not tell me what your position is now. At one point in print you argued against all limits on contributions and expenditures--or at least it appeared to do so--but defended (or appeared to do so) unlimited or expanded disclosure. Now I see you arguing against many forms of disclosure. Maybe you have changed your views, maybe your disclosure-only stance was a Trojan Horse, or maybe you are hiding your real views. But whatever they may be I just want to see you, Roland, Bopp, Samples, and others be honest in your positions.
In terms of where I am, I have no simple-minded solution to how to address money in politics but arguing an absolutist position on anything. Democratic theory and practice has many competing values that must be examined together. My core argument in my book is that the field of election law is devoid of a broader conception of democracy that seeks to understand the competing values and tries to weave them together.
On Mon, Sep 22, 2014 at 11:31 AM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
"I have never hidden from my views and I have an entire book that articulates my position. I trust you have read my book by now?"
Ditto. Of course, I was, when I was serving on the FEC, regularly asked how far I would go in deregulating. I used to note then that the same reporters never asked other commissioners how far they would go in regulating.
So go to my second answer: "you give this a little more thought, and get back to me with how you think the people you wish to address would respond. Then we can discuss it at length. That will help your learning a lot more than me giving the answer."
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Schultz, David A. [dschultz at hamline.edu<mailto:dschultz at hamline.edu>]
Sent: Monday, September 22, 2014 12:28 PM
To: Smith, Brad; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] Animals, androids, space aliens, ghosts or rocks
No Brad, I asked you first so you answer first. I have never hidden from my views and I have an entire book that articulates my position. I trust you have read my book by now?
On Mon, Sep 22, 2014 at 11:23 AM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
First, let me ask the opposite question:
Is it your position that the legislature can place limits on any amount of speech by any entity or person? What lines would you draw? May a legislature prohibit Ken Burns' series on the Roosevelts on the grounds that it will build public support for the type of big government solutions that both TR and FDR favored (not because the legislature disagrees, to be clear, but because that makes it inherently "political," allowing extra influence to Mr. Burns and others, in part because of their access to money)?
1. In effect, regardless of whether something is a person, should the legislature be able to enact whatever rules it favors to limit speech that may tend to influence political views?
2. Is it your position that a person should never be able to keep his or her political activity private?
Show me the courage of your convictions. If what you are really advocating is no clearly demarcated limits on what is regulated, then say so. Fess up!
In other words, this is not, and should not be, a one way question.
Now, my general answer to some of Jamie's questions:
Strong arguments can be made (see e.g. Blumen) for limiting contributions by foreign nationals. Similarly, strong arguments can be made for limiting contributions by corporations. Strong arguments can be made for limiting expenditures by corporations. And by unions. And by college professors. Now, this is just me, but androids, rocks, animals and space aliens engaging in political speech just doesn't worry me. Anyone who is really concerned by that is, I think, off his rocker (that rocker's speech rights being another thing that doesn't concern me in the least). Arguments can also be made for sound time/place/manner restrictions. I believe in appropriate limits. The arguments made for limiting contributions by foreign nationals, for example, are quite different than the arguments for limiting speech by incorporated associations of U.S. citizens. The arguments for most time/place/manner restrictions (such as sound trucks in residential neighborhoods late at night) are quite different from the arguments for broad limits on campaign spending regardless of the time, place, and manner, and the arguments for the former often don't apply at all to the arguments for the latter. Although these are often difficult constitutional questions, they are not new, and it has long been recognized, even by ardent supporters of campaign regulation on the Court, that they can and probably ought to be treated differently.
So if this is a rhetorical question, I'll pass. If this is a serious question, I'll do what I sometimes do with students in a variety of subjects - "you give this a little more thought, and get back to me with how you think the people you wish to address would respond. Then we can discuss it at length. That will help your learning a lot more than me giving the answer." (it also saves me time, but I don't usually say that!).
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Schultz, David A. [dschultz at hamline.edu<mailto:dschultz at hamline.edu>]
Sent: Monday, September 22, 2014 11:59 AM
To: Jamin Raskin
Cc: Election Law
Subject: Re: [EL] Animals, androids, space aliens, ghosts or rocks
I second Professor Raskin's call for honesty here. My Constitution Day talk was all about the tortured and conceptually muddled constitutional examination of who or what is a person over time. But given Roland's comments they lead me to ask a few questions of those on this listserv who seem to support less restrictions or regulation of money in politics.
1. Should any entity or person that wants to donate or expend money for political purposes be able to do so in any amount they want? In effect, regardless of whether something is a person, should any entity be able to convert its entire economic resources into political donations or expenditures without limit?
2. Should any entity or person that wants to donate or expend money for political purposes be able to do so without having to disclose it?
Okay folks, to paraphrase Justice Roberts's comments during orals over the constitutionality of the ACA, show me the courage of your convictions. If what you are really advocating is complete deregulation with no disclosure and no limits on who or what gives and how much, then say so. For people like Roland who seem to be both libertarian free marketers and so-called free speech absolutists, this is the logic of your position. Fess up.
On Mon, Sep 22, 2014 at 9:59 AM, Jamin Raskin <raskin at wcl.american.edu<mailto:raskin at wcl.american.edu>> wrote:
“And the Citizens United decision had nothing to do with them being a corporation. The First Amendment bars restrictions on speech and press, no matter who or what the speaker or publisher might be. There is no specification that it s only the speech or publication by human individuals. It could be by animals, androids, space aliens, ghosts, or rocks.”
If I read this post correctly, Jon Roland is saying that not only do domestic corporations, animals, androids, space aliens, ghosts, and rocks have an absolute right to spend money promoting or maligning candidates in our federal political campaigns, but so also do: foreign corporations, foreign governments and spy agencies, state governments and municipal corporations and counties, federal agencies like HUD, the Department of Labor and the CIA, narco-traffickers and drug money launderers, three-year olds and newborns, and churches and charities and other entities holding tax-exempt status, to name just a few entities and human beings whose money has been kept at bay by the law.
Is your position, as suggested by your admirably candid post, really that anything goes in campaign spending, “no matter who or what the speaker or publisher might be,” because it all adds to the overall quantity of speech? (If not, why not?)
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Jon Roland
Sent: Monday, September 22, 2014 10:08 AM
To: Sal Peralta
Cc: Election Law
Subject: Re: [EL] The apocalypse
Money is mostly not speech. It is mostly press.
Campaign donations made to support marketing of a candidate is "press" rather than "speech" in the strict use of those words. The donor is contracting with the campaign to publish something he wants published, even if he does not specify the exact message. He is delegating the composition of the message to the campaign. Campaigns do use part of their donations for other things, like transportation and salaries of campaign workers, but almost all of that is in support of marketing. That is what makes it a matter of the First Amendment.
Jurisprudence got off on a track of decisions about "speech" and to follow precedent, has tried to cram everything into the "speech" pigeonhole, but this is really "press", that is, publication. The Citizens United decision was about press, because publishing is what Citizens United was doing by putting out a movie.
Voters have just as much a right to choose what marketing messages they will heed as which candidate to vote for. If they heed the wrong messages, that is their choice, it is not ours to try to compel that choice.
And the Citizens United decision had nothing to do with them being a corporation. The First Amendment bars restrictions on speech and press, no matter who or what the speaker or publisher might be. There is no specification that it s only the speech or publication by human individuals. It could be by animals, androids, space aliens, ghosts, or rocks.
On 09/22/2014 08:51 AM, Sal Peralta wrote:
if you would agree to use the word "money" instead of "speech"
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FacultyRow SuperProfessor, 2012, 2013, 2014
--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel:651.523.3170> (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
My latest book: Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014
--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
My latest book: Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014
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