[EL] Money as speech
Schultz, David A.
dschultz at hamline.edu
Thu Sep 25 05:39:11 PDT 2014
Mr Bopp:
Either your memory is failing you or you are being less than candid in you
assertion that: "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 draw your attention to your appellate brief 1996 WL 33659140 (C.A.1)
in FEC v Maine Right to Life Committee (your are listed as the lead
attorney) where you not only argue that money is speech but you declare
that the Court in Buckley as saying: "The Court further recognized that,
in today's society, “money is speech,” i.e., that effectively communicating
a political message is virtually impossible without the expenditure of
money." Anyone who reads this brief, both in it explicit words and in its
arguments will see it as you declaring (and characterizing the Court as
saying) that money is speech.
Is it now your position that you no longer argue that money is speech?
Have you repudiated your 1996 position or have you now changed your minded
regarding how you would characterize the Court's opinion on money and
speech in Buckley? If you are willing to say that money is not identical
to speech then that must mean there are times when the use of money for
political purposes is not protected by the First Amendment? Can you tell
me when those situations are?
Additionally, even if us "reformers" do concede and agree with you that
money is speech my position is different from you. To use your new
metaphor, one person using a megaphone has far more speech than everyone
else speaking if they do not have megaphones. You seem to live in a world
where you think everyone has an absolutist right to free speech by the
ability to expend or contribute unlimited amounts of money. The reality is
only only person can have an absolute ability to speak--every speaker
implicitly limits another. Real conversations occur not when everyone
shouts but everyone pauses, listens, or respects the rights of others to
speak to. John Rawls well said that a just society is one where everyone
is entitled to the maximum amount of liberty consistent with like liberty
for all. To say some have more liberty than others certainly does not
mean everyone has an absolute First Amendment right to speak.
Among the many flaws in your position is you have an advocacy position
that privileges one voice or set of voices and not a position that
understands how money and its use fit into a broader theory of democracy.
I try to examine that in my book and argue how we must look at money and
speech and how both fit into a richer theory of democracy.
Thus, before you accuse us "reformers" of sins, first be honest to your
position and what you have argued or said in the past. Second, go read my
book and my arguments before you characterize my position.
Thank you.
On Wed, Sep 24, 2014 at 7:09 AM, <JBoppjr at aol.com> wrote:
> 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> 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 <%28703%29%20682-9320>
>>>
>>> Fax: (703) 682-9321 <%28703%29%20682-9321>
>>>
>>> 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
>>> ------------------------------
>>>
>>>
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>>>
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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
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>
>
> --
> 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
>
>
--
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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