[EL] Why campaign spending is protected - in action

[Schultz, David A.]

Mark:

Let me defend use the slogan "money is speech" in my post.

I will honestly and genuinely say I am perplexed on several levels.  On one
level I have moved fr om I agree to I disagree to "I have no idea what the
Buckley Court meant when it said that money implicates the First
Amendment."  I wish I knew what they  meant in the real world.  Perhaps the
vagueness is due to the per curiam  compromise in the opinion and therefore
nearly 40 years later we are all left wondering what it means.  Or at least
I am.

On a different level, it seems everyone tell me that they or others are not
arguing or declaring money is speech (even those who have actually argued
it in legal briefs), but no one then tells me what money is and how it is
connected to the First Amendment.  As I stated in my first post today, if
money ain't speech what is it?  What I mean by that is that when we come
down from slogans and theory, what are the limits on the regulation on the
use of money within the context of campaigns and elections?  For those who
deny money is speech but oppose contribution or spending limits (and even
disclosure), under what circumstances, if any, would you see it permissible
to limit  contributions, expenditures, or impose disclosure?  Moreover,
even if money has expressive or communicative aspects to it we know that
not all communicative acts or expressions  are given absolutist protection
and that instead the entire compelling interests test admits of some limits
(as do categories of speech).

I guess I have both a theoretical and a practical or application concern.
What is the theoretical role of money in politics, how is it connected to
speech, and where does speech fit into a broader theory of democracy?
Shorthand--for those who say money ain't speech but  oppose limits, please
provide me with some clarification of what it is you actually believe in
theory and what does it mean from a regulatory point of view?

On Sun, Oct 11, 2015 at 3:41 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> In response to David,
>
> No one is saying money is speech. Your mouth is not speech, but it is
> necessary for you to speak orally. A translator is not speech but may be
> needed (and may need to be paid) for you to speak to some audiences. Pen
> and paper are not speech, nor is the somewhat-smart phone I'm using now,
> etc., etc.
>
> It would help if we could get away from slogans. The substantive points
> David made prior to invocation of the slogan are fair arguments that should
> be addressed and have been addressed.
>
> And corporations aren't human beings --which no one asserts -- but at
> least some of them (e.g., NY Times) must be treated as having free speech
> and free press rights. And then do we think "media corporations" can be
> identified by the government in an appropriate way and should be given a
> special status. Those are the questions, and they shouldn't be obscured by
> using a slogan to mischaracterize Citizens United (which I'm not saying
> David did in his post).
>
> Mark Scarberry
>
>
> Sent from my Verizon Wireless 4G LTE Smartphone
>
>
> -------- Original message --------
> From: Allen Dickerson
> Date:10/11/2015 12:31 PM (GMT-07:00)
> To: "Schultz, David A." , law-election at uci.edu
> Subject: Re: [EL] Why campaign spending is protected - in action
>
> 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>
> 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://law.capital.edu/faculty/bios/bsmith.aspx>*
>> ------------------------------
>> *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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>
>
> --
> 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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-- 
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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