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

Sat Jun 6 08:01:13 PDT 2015

Adding to this, to the best of my recollection every single Supreme Court justice since Buckley except for Stevens has endorsed the general concept that campaign contributions and spending money in the political process are activities protected under the First Amendment, as Professor Muller points out the question has always been (except in the mind of certain “reformers”) to what extent and in what circumstances the government has a compelling interest sufficient to trump the First Amendment. 

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] On Behalf Of Derek Muller
Sent: Saturday, June 06, 2015 10:42 AM
To: Tyler Creighton
Cc: law-election at uci.edu
Subject: Re: [EL] Curiouser and Curiouser. NY Times Survey on Money in Politics

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 |  <mailto:tyler at rethinkmedia.org> tyler at rethinkmedia.org  |  Media Associate

ReThink Media <http://rethinkmedia.org>  | (925) 548-2189 <tel:%28925%29%20548-2189>  mobile 

@ReThinkDemocrcy <https://twitter.com/rethinkdemocrcy>  | @ReThink_Media <https://twitter.com/rethink_media>  |  <http://www.twitter.com/tylercreighton> @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] 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
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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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