[EL] Why campaign spending is protected - in action

[Schultz, David A.]

Ilya:

Nice points but I never said the issue was about zero-sum or finite or
infinite amount of speech but about how we locate speech and money as its
possible proxy within a broader theory of democracy.  Bullhorns in and of
themselves are not proxies for speech but may facilitate it but they too
are subject to regulation.

In terms of money and kidneys, some observations. First, I have actually
written on this topic in terms of its ethics and there are good points on
both sides.  But in general one of the best works on this topic (actually
selling blood) is Richard Titmuss' book the Gift Relationship.  It is a
great book that looks at what markets and markets cannot do and I think
everyone should read it but in general there is not great evidence that
markets will increase the supply of kidneys, except perhaps for the rich
 who can outbid the poor.  You might say that the rich and poor can equally
bid on kidneys and the the former bidding or paying does not prevent the
latter from doing the same.  I doubt that strikes most of us as fair.  It
is not simply about being zero sum but other values are implicated.
However, my broader point is that one can have a great debate about whether
market capitalist values should be the ones that determine how politics and
the rest of society operates.  I am not sure they are always reinforcing
and sometimes they are at odds.

My point on PPH was simply that so many people seem upset with the
organization because of the allegation that it sold fetal parts for a
profit.  At least this seems to suggest to me, and maybe I am wrong, that
part of the controversy (bracketing off partisan politics) is that society
has correctly or incorrectly said that this is unethical and illegal.

On Sun, Oct 11, 2015 at 1:56 PM, Ilya Shapiro <IShapiro at cato.org> wrote:

> But there's no need to balance rights/values here. 200 people spending a
> lot of money on political speech don't inhibit anybody else's right to
> spend money on speech (individually or pooled) or to knock on doors, or to
> otherwise engage in political speech. There's not some zero-sum game with a
> finite amount of speech (or a finite amount of money to spend on it).
>
> Also, three points regarding some mistaken premises (not sure to what
> extent the rest of your argument stands or falls thereby):
>
> 1. Money is speech only insofar as bullhorns, laptops, printing presses,
> wifi, and other tools for facilitating speech are, no more no less. That
> really shouldn't be controversial -- though perhaps, like the deputy
> solicitor who defended govt power to ban books at the first CU argument,
> many people on this list are ok with restricting all those tools if they're
> used "too much" for political speech.
>
> 2. There's not a consensus that money shouldn't be used to allocate
> kidneys. There's a reason there's a shortage of organs and people die on
> waiting lists. And evidence from Iran, of all places, show that kidney
> markets can work rather well.
>
> 3. I'm not sure what "false" allegations about Planned Parenthood you mean
> -- I guess something different/earlier than the current scandal -- but
> surely it's not the government role to be some sort of fact-checker
> regarding public debates. See the Ohio law that was before the Court last
> year (you'll perhaps recall my satirical brief that PJ O'Rourke joined) and
> was struck down on remand.
>
> Ilya Shapiro
> Senior Fellow in Constitutional Studies
> Cato Institute
> 1000 Mass. Ave. NW
> Washington, DC 20001
> Tel. 202-218-4600
> Cel. 202-577-1134
> www.cato.org/people/shapiro.html
> twitter.com/ishapiro
>
> On Oct 11, 2015, at 2:32 PM, Schultz, David A. <dschultz at hamline.edu>
> wrote:
>
> 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>
> 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 <614.236.6317>*
>>
>> *http://law.capital.edu/faculty/bios/bsmith.aspx
>> <http://cp.mcafee.com/d/avndxNJ5xxxZVVBxMTsSztxdd5BOX1J6X2qqbbzXNJ6X2qqbbBTPqdS4QQmjhOUUrBgDGQER1lJDnw09KSPHM04Sqemi6WyU_R-hKCMMODRXBQSn3hPObPNEVpsoVqWdAklrEKsG7DR8OJMddECNNK_9L3DHIe3DHCXCM0p-CeJGQFWvTEdUXJCPVBI8iHj255pj9Y3MYSvFwLV_SDaI2V2Hsbvg58uJIpG_2ps-l9QVKQKZ1ISMYqem73obZ8Qg6BIq2FFtd402AONEwI4dAhwq8abv12k29EwBgQgbhHfXjZ0Qg5Ph1a1EwSQVlwrvvdxrsi>*
>> ------------------------------
>> *From:* law-election-bounces at department-lists.uci.edu [
>> law-election-bounces at department-lists.uci.edu] on behalf of Trevor
>> Potter [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>>
>> 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>> 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>>
>> 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.)
>>
>>
>> <115101111283601206.png>
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>
>
> --
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-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
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MS B 1805
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651.523.2858 (voice)
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Twitter:  @ProfDSchultz
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