[EL] Money as speech
JBoppjr at aol.com
JBoppjr at aol.com
Wed Sep 24 05:09:36 PDT 2014
For instance, "money is speech," I have never said that, I have never
heard any pro-First Amendment advocate say that and the Court has never said
that. I doubt that can quote one pro-First Amendment advocate that has
ever said that. This is a canard and a straw man that the "reformers" use to
mischaracterize and discredit our position.
The point we make is simple, and the Court has repeatedly made it. If you
limit the money that can be spent on speech, you limit the speech itself.
That is because it takes money to communicate beyond those who you can reach
with your own voice. Let's say a megaphone. If it did not take money to
communicate beyond the reach of your own voice, then limiting what you
spend on it would not limit speech. Very simple I think.
So now that this has been clarified again, I am sure that you and other
"reformers" will stop saying that this is our position. LOL Jim Bopp
PS No "reformer" has yet answered my specific questions about "dark money,"
ie does it include federal IEs and ECs, etc? I guess it is transparency
and accountability for others but not for you.
In a message dated 9/23/2014 6:17:11 P.M. Eastern Daylight Time,
dschultz at hamline.edu writes:
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_
(mailto: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_ (mailto: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_
(mailto: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_ (tel:(703)%20682-9320)
Fax: _(703) 682-9321_ (tel:(703)%20682-9321)
_psherman at ij.org_ (mailto:psherman at ij.org)
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 _demesqnyc at aol.com_ (mailto:demesqnyc at aol.com)
Sent: Tuesday, September 23, 2014 9:57 AM
To: _law-election at department-lists.uci.edu_
(mailto: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
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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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