[EL] Curiouser and Curiouser. NY Times Survey on Money in Politics

Sat Jun 6 07:41:38 PDT 2015

To be slightly picky on two points.

First, the Supreme Court agreed by a unanimous vote of 9-0 in *McCutcheon*
(to name one case, and from my reading of it) that campaign contributions
are a form of speech protected by the First Amendment. The only dispute in
that case arose as to whether the government's interest was sufficiently
important and whether it was appropriately tailored. So maybe the
Court is *rabidly
*"out of touch" with the "mainstream." Or maybe the question as surveyed
was not sufficiently nuanced. (Perhaps a more interesting--and, of course,
invalid and loaded--question would ask, "Do you consider money given to
political candidates to be a form of free speech protected by the First
Amendment to the Constitution, or do you consider it not protected, like
incitement, obscenity, child pornography, fighting words, and true
threats?")

Second, the Court has also often been more critical of restrictions on
campaign contributions as a form of the "freedom of association" under the
First Amendment (viz. *Buckley*) than as a form of speech (or expression).
That's another nuance lacking in addressing the question solely from a
"speech" rationale.

(These thoughts really have nothing to do the merits of the public's views
or the validity of the Court's reasoning, except to identify some
subtleties that might--might!--be worth considering when addressing these
issues at a more careful level.)

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy

Malibu, CA 90263

+1 310-506-7058

SSRN: http://papers.ssrn.com/author=464341

Twitter: http://twitter.com/derektmuller

On Sat, Jun 6, 2015 at 6:02 AM, Tyler Creighton <tyler at rethinkmedia.org>
wrote:

> Two things.
>
> 1. The poll did ask about the First Amendment. "Do you consider money
> given to political candidates to be a form of free speech protected by the
> First Amendment to the Constitution or not?" 54% answered "no, not free
> speech."
>
> 2. Every time there is new evidence to the contrary Chris Cillizza writes
> the same blog post. I think he's up to 4-5 at this point. New evidence
> contradicting his position is pretty common.
>
> I recommend you read Rep. Sarbanes' interview with Greg Sargent
> <http://www.washingtonpost.com/blogs/plum-line/wp/2015/06/03/how-democrats-can-make-voters-care-about-big-money-in-politics/> about
> the poll and how Americans feel about this issue. Charlie Pierce's "Here's
> Some Stupid for Lunch
> <http://www.esquire.com/news-politics/politics/news/a35459/campaign-finance-reform/>"
> post about Cillizza is also good.
>
> *Tyler Creighton* | tyler at rethinkmedia.org  |  Media Associate
> ReThink Media <http://rethinkmedia.org> | (925) 548-2189 mobile
> @ReThinkDemocrcy <https://twitter.com/rethinkdemocrcy> | @ReThink_Media
> <https://twitter.com/rethink_media> | @TylerCreighton
> <http://www.twitter.com/tylercreighton>
>
> On Fri, Jun 5, 2015 at 6:48 PM, David Keating <
> dkeating at campaignfreedom.org> wrote:
>
>> You put too much weight on a poll that wasn’t constructed all that well
>> to measure public opinion on a complex issue.  Yes, the public has a knee
>> jerk reaction to money in politics.  Nothing new. Support for radical
>> restrictions, if it really exists, is a mile wide and an inch deep.  The
>> public also loves the First Amendment, but the Times didn’t ask about that.
>>
>>
>>
>> This is not just wishful thinking on my part.  Buried (of course, it’s
>> the Times), but revealed by CBS, was the fact that "Less than one percent
>> volunteer campaign fundraising as the most important issue facing the
>> country."  That was on an open end question, where all responses are
>> volunteered.
>>
>>
>>
>> Probably another poll could also commend a flag-burning amendment or for
>> the court to uphold such an anti-burning law, but I’d hope you wouldn’t
>> urge its passage or a reversal of previous rulings to prevent “contempt of
>> the public.”
>>
>>
>>
>> I recommend you read Chris Cilizza’s Washington Post column, “Can we
>> please stop acting like campaign finance is a major voting issue?
>> <http://www.washingtonpost.com/blogs/the-fix/wp/2015/06/02/can-we-stop-acting-like-campaign-finance-is-a-major-voting-issue/>”
>> if you want to understand how the public really feels about the issue.
>>
>>
>>
>> David
>>
>> _________________________________________________
>>
>> David Keating | President | Center for Competitive Politics
>>
>> 124 S. West Street, Suite 201 | Alexandria, VA 22314
>>
>> 703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax
>>
>> www.campaignfreedom.org
>>
>>
>>
>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Sean
>> Parnell
>> *Sent:* Friday, June 05, 2015 3:37 PM
>> *To:* 'Schultz, David A.'; law-election at uci.edu
>> *Subject:* Re: [EL] Curiouser and Curiouser. NY Times Survey on Money in
>> Politics
>>
>>
>>
>> Am I understanding correctly that your position, David, is that holding a
>> position out of step with a substantial majority of the public = contempt
>> for the public? Is that limited to the Supreme Court, or others as well?
>>
>>
>>
>> If limited to the Supreme Court, is it your position that the Supreme
>> Court is engaging in contempt for the public whenever they issue a decision
>> at odds with some supermajority of the public? What is the numerical
>> threshold between contempt by the court and simply upholding the
>> law/Constitution against the majority’s wishes? 80%? 70% 50% + 1?
>>
>>
>>
>>
>>
>> Sean Parnell
>>
>> President, Impact Policy Management, LLC
>>
>> 571-289-1374 (c)
>>
>> sean at impactpolicymanagement.com
>>
>> Alexandria, Virginia
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *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>] *On Behalf Of *Schultz,
>> David A.
>> *Sent:* Friday, June 05, 2015 1:46 PM
>> *To:* law-election at uci.edu
>> *Subject:* [EL] Curiouser and Curiouser. NY Times Survey on Money in
>> Politics
>>
>>
>>
>> Hi All:
>>
>>
>>
>> I found the silence deafening on this listserv regarding the June 2-3,
>> 2015 NY Times survey finding that overall 84% of the American public
>> believes money has too much of a role in American politics and that
>> majorities (or near majority with Republicans) do not believe that money
>> given to candidates is a form of protected speech.  Assuming this survey is
>> accurate (and its results are consistent with one I had done in MN years
>> ago) then the Roberts Court and views expressed by several on this listserv
>> are clearly at odds and out of touch with what the majority of Americans
>> believe.
>>
>>
>>
>> Now of course counter-majoritarianism is not always wrong.  Unpopular
>> speech should be permitted despite what majorities believe.  But what is
>> going on here is not about regulating content or viewpoint or suppressing
>> unpopular groups or oppressing discrete and insular minorities.  What we
>> seen here is an indication of the public describing how they think the
>> American politics process should operate and such views do deserve
>> significant deference.  I also read the poll as rejecting what many on this
>> listserv are asserting, i.e., conflating money as a perfect legitimate way
>> to buy consumer with the legitimate way to allocate political power and
>> influence.  It is also a conflating the legitimate means or process of how
>> a democracy should operate with how it does operate, or otherwise confusing
>> money as a medium of economic exchange with that of seeing it as a
>> permissible means of political exchange.
>>
>>
>>
>>
>>
>> No responses needed or expected to my post.  Just curiouser and curiouser
>> about positions taken by the Court that really display contempt of the
>> American public.
>>
>>
>>
>> --
>>
>> 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
>>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150606/2b5d616f/attachment.html>