[EL] Why campaign spending is protected - in action

Sun Oct 11 12:29:32 PDT 2015

David,

As to your first question, very few are arguing a position beyond the one articulated in Buckley by an overwhelming majority of the Court: "[v]irtually every means of communicating ideas in today's mass society requires the expenditure of money." Some of us are frankly mystified that this is a controversial view, or that there is truly any confusion on that point.

And if that view is accepted, it has broader implications because all communication of ideas, not merely electioneering, involves and requires economic activity. Think-tank papers, newspaper editorials and reporting, academic journal articles, charitable solicitations--nearly every form of intellectual discourse in this country can be tied back to the (relatively) modest number of individuals with the resources to fund endowments, capitalize media entities, donate to nonprofits, and keep revenue-losing publications afloat. Many of the individuals on this list have their voices subsidized by that subset of Americans.

When Buckley's limitations--express advocacy, the major purpose test, etc.--were new and robust, there was reason to believe that the regulation of funded speech and association would be limited to unambiguously campaign-related activity, and would not reach civil society more generally. That consensus seems to have broken down; most of CCP's clients are 501(c)(3) groups.

So one serious danger is that permitting government to "restrict the speech of some elements of our society in order to enhance the relative voice of others" need not, conceptually, be limited to campaign speech. Because all discussion of issues is intended to be persuasive, and because in a democracy persuasive speech can influence election results, it is difficult to draw lines between civil society organizations generally and the sort of "campaign" groups that the reform community would like to see more heavily regulated. Some of us would address that problem by limiting governmental regulation of association generally.

In that sense, I agree that "a real theory of money in politics must be situated in a larger theory of democracy which looks at the broader collection of values and institutions necessary to make a democracy function."

Best,

Allen

________________________________
From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Schultz, David A. <dschultz at hamline.edu>
Sent: Sunday, October 11, 2015 2:30 PM
To: law-election at uci.edu
Subject: Re: [EL] Why campaign spending is protected - in action

Bracketing aside the rather artful and creative reading or interpretation of the NY Times article which started off this thread, nearly everything which is wrong in the theory and practice of election law, and more specifically, the theory and practice (or application) regarding the role of money in politics is on display in the posts here.  Moreover, reading many of the posts is like the movie Groundhog Day meets election law–the same old arguments are made, responded with likely retorts.

Let’s get to the root of the issue.  There really are two questions beyond all the rhetoric and posturing here.  The first is to ask whether money is a reasonable proxy for speech or a legitimate tool for the allocation of political power within a democratic society.    There are some here who really do argue, even though they deny it, that money is speech and therefore any restriction on its use is a violation of the First Amendment.  Period. Many of those arguing that position will deny that this is their position but if money ain’t speech (pardon my grammar) and that is not what you are arguing then what is money and what are you really arguing?  Either the claim is money is speech or money is such a perfect proxy for speech then restricting it is effectively violating the First Amendment.

For those arguing for restrictions on the role of money in politics, once the position is conceded that money implicate some First Amendment issues (the Buckley position), then one gets into an almost how many angels can dance on the head of a pin argument regarding how much money or what type of regulations are permitted before the First Amendment is violated.  Thus, the first question to me really is about the legitimate role of money in politics.  Money cannot buy happiness and it certainly should not be able to buy everything (look at the arguments of Michael Sandel, Michael Walzer, and Margaret Radin on this).  Money should not be used to allocate kidneys, and some would find other impermissible uses for money in our society, many of them involving important legal values such as justice.  Think also of the false allegations against Planned Parenthood, for example.

The second question is really one from a democratic point of view.  Even if we accept that money is an acceptable medium for allocating political power and influence, or that it is an acceptable proxy for speech, it and speech need to be placed within a broader context of the other values and institutions within a democratic society.  Simply stated, free speech is an important requisite for a functioning democracy, but it is not the only value (look at Robert Dahl, Carole Pateman, Carol Gould, or John Rawls for a discussion of this).  A democracy must balance many competing values, speech, equality, transparency, to be viable.  Values, like the meaning of words, must be understood within a broader context in order to function property.

Thus, even if money is speech, its role in a democratic society must be understood and examined within a broader context of other values and institutions that are also necessary for a democracy to work.  Moreover, even if money is speech, we must ask how a democracy for one, two, or even 200 families works.  By that, if but only one person in the world existed she would arguably possess the unlimited right to do whatever she wants.  But from the day societies formed we had to figure out how to live together and accommodate each other.  A real theory of money in politics must be situated in a larger theory of democracy which looks at the broader collection of values and institutions necessary to make a democracy work–a theory of campaign finance law or election law premised on a theory of abstract individualism is simply not a theory–it is no better than ad hocism or simply posturing.

These are the questions or issues I raise in my Election Law and Democratic Theory book.  I do not claim to have the answers but hoped at least to raise the right questions.    I would hope we can elevate the level of dialogue on this listserv to engage these broader questions, including the connections between capitalism and democracy which at the end of the day, is really part of the debate over whether money is speech and where it fits into a theory about how American democracy should operate.

On Sun, Oct 11, 2015 at 1:06 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
Well, let's find out:

Trevor, is now your position that you agree with the rulings in SpeechNow.org, Buckley, and Citizens United pertaining to independent spending? And, content with those decisions, two of which were directly opposed by the Campaign Legal Center which you chair, all you are advocating now is government subsidized campaigns?

Or would that be in error?

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
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<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Trevor Potter [tpotter at capdale.com<mailto:tpotter at capdale.com>]
Sent: Sunday, October 11, 2015 1:48 PM
To: Scarberry, Mark
Cc: law-election at UCI.edu
Subject: Re: [EL] Why campaign spending is protected - in action

Mark

I completely agree with you that Barrack Obama killed the general election Presidential funding system, just as George Bush's failure to participate in 2000 ( followed by John Kerry's on the Democratic side in 2004) killed the primary matching find system. That history, though, doesn't end the discussion-- it starts it, and points to a bipartisan responsibility for fixing it.

But I am puzzled by the rest of your response-- I did not say anything about restricting anyone's speech ( including but not limited to the news media's). I wrote about increasing speech, and bringing the other 99.9 % of Americans into the game....

Trevor

Sent from my iPhone

On Oct 11, 2015, at 12:44 PM, Scarberry, Mark <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu><mailto:Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>> wrote:

Trevor,

My point was that it is dangerous for government to be permitted to regulate spending. It's interesting to note that the first presidential candidate to refuse public money so that he could spend unlimited amounts, our current President, is the leader of the party that is so outraged by the Court's decisions. So who is responsible for the demise of the public funding system?

Would you regulate spending by news media, who are thought by many (most?) people to be extraordinarily partisan, and to engage in herd-like repetition of memes (like this morning's characterization of competition for the position of Speaker as Republican "chaos")?

Do you support return of the Fairness Doctrine?

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Oct 11, 2015, at 8:28 AM, "Trevor Potter" <tpotter at capdale.com<mailto:tpotter at capdale.com><mailto:tpotter at capdale.com<mailto:tpotter at capdale.com>>> wrote:

Mark

I am interested in your apparent assumption that the only alternative to a infinitesimal tiny percentage of wealthy Americans dominating the process by which we choose our President is restrictions on speech.

Your post says: "I will say that I don't like rich people having so much influence; but the cure -- government regulation of the amount of money that can be spent to put forward a message -- may be worse than the disease. (Power of all kinds is dangerous, to state the obvious.)"

>From 1976 through 1996 we had a functioning system of public funding in both primary and general elections for President. It included a " matching" component to double the value of small ( up to $250) contributions. This system is widely credited with enabling Ronald Reagan to win the 1980 Republican nomination despite some early primary losses that temporarily dried up his fundraising-- the matching funds arrived in time to finance wins in later primaries. As a result of the Buckley decision, individuals could still spend an unlimited amount of their own money on political speech-- but they had to speak themselves rather than give it to SuperPacs , which did not exist in today's form because of contribution ( not expenditure) limits.

It is interesting that ALL of the discussion about the NY Times article so far on the ListServe has related to claims of " silencing" the speech of the highlighted 158 families, rather than enhancing the speech of 100 million or more others. It seems to me that both sides of this debate-- those concerned about preserving the ability of the ultra wealthy to speak/ spend? without limit in elections , and those concerned about the dominant role such unlimited money provides to a tiny handful of Americans-- should agree on the virtues of proposals to enhance the speech of all other Americans.

As a start, we have the model of the Presidential public funding system, which still exists in law, if not in reality: it could be reformed and improved. There are bills pending to do so. We have the model of the NYC 6-1 match of small contributions. We have the Minnesota model, where political contributors of small sums fill out a simple state form and immediately receive direct reimbursement of the contribution from the state. We have a proposal from Prof. Richard Painter, formerly of the George W. Bush White House, for a $100 " first fruits of their labor" taxpayer rebate, provided to all registered voters in the form of a voucher divisible and transferable to candidates or political parties-- sort of like a Starbucks card.

All of these seem to be possible ways to address the problem-- a problem that you describe as " rich people having so much influence" --by expanding speech, not restricting it. It would likely produce a flood of new political speech-- surely music to the ears of those who say we need more, not less political speech. And any of these proposals ( or all, for that matter) would strengthen the voice of ordinary Americans in our political process-- surely something to be devoutly hoped for and worked for in this era of citizen disaffection with our political system, which poll after poll shows voters believe has been captured by the very few ( such as those in the NY Times article).

Trevor Potter

Sent from my iPad

> On Oct 10, 2015, at 9:11 PM, "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu><mailto:Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>> wrote:
>
>
> I will say that I don't like rich people having so much influence; but the cure -- government regulation of the amount of money that can be spent to put forward a message -- may be worse than the disease. (Power of all kinds is dangerous, to state the obvious.)

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