[EL] Money as speech

Tue Sep 23 15:17:09 PDT 2014

So Mr Bopp, tell us what you are saying and why you are using these
metaphors or analogies?

On Tue, Sep 23, 2014 at 5:13 PM, <JBoppjr at aol.com> wrote:

>  Regarding:
>
> *I only wish the world were so simply that saying money is speech,
> democracy is a marketplace of ideas, or corporations are persons entitled
> to free speech wold resolve things*.
>
> I think the problem here is "reformers" creating straw men, pretending
> that this is the position of First Amendment advocates, and then having fun
> attacking them. If "reformers" cannot be honest about what their
> opposition is really saying, then it is not our problem, but yours.  Jim
> Bopp
>
>  In a message dated 9/23/2014 5:09:07 P.M. Eastern Daylight Time,
> dschultz at hamline.edu writes:
>
> Howard's query and the responses to it speak to an even more interesting
> issue--how so much of the election law or campaign finance debate rests
> upon simplistic and inapt analogies and metaphors.   Money as speech,
> analogies in BUCKLEY to gas tanks and cars or megaphones or soundtrucks,
> parties as filters for special interests.   I would even argue that
> economic market metaphors for how we describe democracy are often
> counterproductive.  I could go on.  Lawyering in part is about drawing
> analogies but when we become trapped by them we make bad law and reach
> foolish conclusions.  Perhaps we need to start by recognizing that money is
> money and constitutionally protected speech is constitutionally protected
> speech and then ask whether the former should be recognized as the latter.
> Remember in Buckley the Court never ruled that money is speech only that it
> bore some speech-like properties that implicated First Amendment concerns.
> I now see too many advocates trapped by their analogy that money is speech
> and fail to ask if there are fundamental differences between how money
> operates in a economic market versus what should be the allocative criteria
> for power in a democracy.  Money may or may not have a place in democracy
> or it may have a different role in politics than it does in buying coffee
> at Starbucks.
>
>   I am now afraid that the new debate--corporations as persons or not--is
> about to become a new analogy that will become simplified and obscure
> debate. Roland's recent post on CU, persons, and speech is an example of
> that.  My point of posting my Constitution Day lecture lecture last night
> was for people to  understand two things.  First, debates over who or what
> is a person or property go back to the the 1787 constitutional debates.
> Second, simply saying something is a person does not resolve the debate
> over what rights are afforded.  Children are persons but do not share the
> same rights as adults, for example.  If one were to line all all the
> possible entities or beings that could be deemed persons and then think
> about all the possible forms of civic activities or forms of civil
> engagement that are possible, we would find that some persons can do some
> activities but not others.  By that, even if corporations are people should
> they be allowed to vote?  Conversely, even if a political party cannot vote
> does that mean it should not be able to speak?  Simplistic metaphors or
> analogies that take on an all-or-nothing aspect blur these issues.
>
> I only wish the world were so simply that saying money is speech,
> democracy is a marketplace of ideas, or corporations are persons entitled
> to free speech wold resolve things.  Such statements as Dan Lowenstein
> suggest, only make things more obscure.  I sound like a broken record by
> now but I try to talk about these issues in my book ELECTION LAW AND
> DEMOCRATIC THEORY.  We really need to approach questions about money in
> politics from a more holistic, theoretical, thoughtful, and even empirical
> point of view.  I hope this listserv is more than a simply place of
> advocacy that rises about the banal world of pop culture which demonstrates
> what is wrong when we get trapped by our analogies and metaphors.
>
> On Tue, Sep 23, 2014 at 11:24 AM, Paul Sherman <psherman at ij.org> wrote:
>
>>  Howard,
>>
>>
>>
>> These aren’t simple-minded questions; you’ve pointed out widely used
>> analogies in campaign-finance debates, and they merit a serious response.
>> So here goes:
>>
>>
>>
>> There are two questions here:  Why is money speech?  And why isn’t money
>> merely volume?
>>
>>
>>
>> As to the first question, the argument for why the First Amendment is
>> implicated when government restricts spending on political speech has been
>> covered in lots of places, so for more on that, I’ll just direct you to
>> this blog post by Eugene Volokh, which I would have just ended up
>> paraphrasing anyways:
>> http://www.volokh.com/2010/01/24/money-and-speech-2/.
>>
>>
>>
>> As to the second question, the analogy of money to a sound system fails
>> because it conflates two different meanings of the word “volume.”  Volume
>> can mean the quantity or power of sound, or it can mean a quantity or
>> amount of something else.  These different meanings matter.  If you’re on a
>> public street and someone is using a bull horn at high volume, it may make
>> it physically impossible to hear other messages.  But if you’re on a public
>> street and someone is engaged in a “high volume” of handbilling, there’s no
>> problem, because handbilling—even a lot of it—doesn’t prevent you from
>> discerning other messages.  Similarly, a high volume of television ads
>> doesn’t actually prevent you from hearing other television ads, because
>> television ads run sequentially, not simultaneously.  (There are lots of
>> other relevant distinctions between publicly owned physical spaces and
>> privately owned communications media that make the broader “drowning out”
>> analogy either unpersuasive or constitutionally problematic, but these few
>> are sufficient to convey my point.)
>>
>>
>>
>> To be sure, volume in the sense of amount makes a big difference in
>> political debates.  A message heard or read multiple times is likely to be
>> more persuasive than a message heard or read only once.  But as a general
>> matter we don’t allow (or trust) the government to regulate speech for the
>> purpose of ensuring that speakers are not unduly persuasive.  Instead, we
>> let speakers decide for themselves how much of their own money they want to
>> spend on peaceful political expression, and we trust the public to decide
>> for itself whether that expression is persuasive.
>>
>>
>>
>> Best,
>>
>> Paul
>>
>>
>>
>>
>>
>>
>>
>> ---------------------------
>>
>> Paul M. Sherman
>>
>> Senior Attorney
>>
>> Institute for Justice
>>
>> 901 N. Glebe Rd., Suite 900
>>
>> Arlington, VA 22203
>>
>> Phone: (703) 682-9320
>>
>> Fax: (703) 682-9321
>>
>> psherman at ij.org
>>
>>
>>
>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *
>> demesqnyc at aol.com
>> *Sent:* Tuesday, September 23, 2014 9:57 AM
>> *To:* law-election at department-lists.uci.edu
>> *Subject:* [EL] Money as speech
>>
>>
>>
>> I have what is probably a simple and simple minded question for the
>> assembled delegation: Why is money speech?  It seems to me money is not
>> speech, it is volume.  We would not allow the person with the largest sound
>> system to drown out all others, we would regulate the volume at which they
>> communicate.
>>
>>
>>
>> Why is money different.  It does not convey any message in and of itself,
>> it simply amplifies the speech you choose to make.  It is not only
>> acceptable, but expected, that we will not allow unlimited noise, on our
>> streets or in our debates, why is money more sacrosanct than the maximum
>> ability of my vocal cords and diaphragm?
>>
>>
>>
>> Howard Leib
>>  ------------------------------
>>
>>
>> Spam
>> <https://antispam.roaringpenguin.com/canit/b.php?i=04MSBVkjH&m=814d1328b87d&t=20140923&c=s>
>> Not spam
>> <https://antispam.roaringpenguin.com/canit/b.php?i=04MSBVkjH&m=814d1328b87d&t=20140923&c=n>
>> Forget previous vote
>> <https://antispam.roaringpenguin.com/canit/b.php?i=04MSBVkjH&m=814d1328b87d&t=20140923&c=f>
>>
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>
>
>
> --
>  David Schultz, Professor
> Editor, Journal of Public Affairs Education (JPAE)
> Hamline University
> Department of Political Science
> 1536 Hewitt Ave
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> Twitter:  @ProfDSchultz
> My latest book:  Election Law and Democratic Theory, Ashgate Publishing
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> FacultyRow SuperProfessor, 2012, 2013, 2014
>
>
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>

-- 
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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