[EL] Why campaign spending is protected - in action

[Eric J Segall]

Well, of course our "season" runs much, much longer and, more importantly for my purposes, and my original point, an interesting question is who gets to decide the breadth of the regulations. Could our gov't make the seasons shorter--probably not.

In any event, if it is still true that political commercials by candidates or banned in England and France (I've not looked recently), something that could never happen here with the last few Courts, then I rest my case about how much we value campaign speech compared to at least those two countries.

Best,

Eric

Sent from my iPhone

On Oct 12, 2015, at 10:16 AM, "Smith, Brad" <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:

But not in the realm of campaign finance. While it is hard to measure (which is freer, a jurisdiction with no limit on individual contributions but a ban on corporate and labor contributions, or a jurisdiction with a $50,000 limit across the board?), I think it is fair to say that the U.S. is firmly planted in the more heavily regulated half of developed democracies when it comes to campaign finance.


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

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

________________________________
From: Eric J Segall [esegall at gsu.edu<mailto:esegall at gsu.edu>]
Sent: Monday, October 12, 2015 9:49 AM
To: Sean Parnell
Cc: Smith, Brad; Schultz, David A.; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Why campaign spending is protected - in action

The broad point I was making, which is accurate, is that the United States, as a general proposition, protects speech much, much, more broadly even when the costs are high, than most other democracies. Moreover, those protections, again generally, derive from the value judgments of judges not legislatures.

To disagree with those descriptive statements is just plain silly.

Best,

Eric

Sent from my iPhone

On Oct 12, 2015, at 9:35 AM, "Sean Parnell" <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:

For those that don’t know, I do a fair amount of work in the health care policy area. There’s a striking similarity in how some argue part of their case on campaign finance and health care. The argument generally follows this form:

“Every other advanced nation has (universal health care/limits on campaign finance), and this proves that the U.S. is deficient and we should adopt [insert favored policy, almost always single-payer health care on that topic].”

As Brad so capably points out, the people making this claim typically don’t know what they are talking about, they’ve simply cherry-picked a few items from some stray observations they’ve made and assumed that because European/Western/advanced nation A has policy X, which they like, then surely A was also wise enough to adopt Y and Z. Alas, no (anybody who wants more info relating to deficiencies of European health care against the “ideal” of single payer, feel free to contact me offline).

Best,


Sean Parnell
President, Impact Policy Management, LLC
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
Alexandria, Virginia



From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Sunday, October 11, 2015 9:20 PM
To: Eric J Segall; Schultz, David A.
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Why campaign spending is protected - in action

Of course, most western democracies do not require disclosure of donors to the equivalent of 501(c)(4) organizations or trade associations.

There are also many ways in which "the rest of the free world" has much less restrictive systems than the United States. Spain allows direct corporate contributions to candidates and parties, with contribution limits in excess of $100,000. Germany also allows direct corporate contributions, and foreign contributions, anonymous contributions, and contributions from government contractors as well. And it has no limit on the size of contributions. Sweden allows direct corporate and government contractor contributions, and has no individual contribution limits. Belgium allows foreign contributions. The Netherlands has no contribution limits, and allows direct corporate contributions. We could go on for some time.

Advocates of regulation might be careful before getting carried away with suggesting we emulate our western brethren.

In any case, we have our First Amendment traditions, and our Constitution. Although it is true that the quality of U.S. governance and debate does seem to have declined since the FECA amendments were passed in 1974, for the most part the U.S. seems to be a pretty healthy democracy when we consider the quality of life for Americans.


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

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 Eric J Segall [esegall at gsu.edu<mailto:esegall at gsu.edu>]
Sent: Sunday, October 11, 2015 4:59 PM
To: Schultz, David A.
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Why campaign spending is protected - in action
Thanks David. I think the UK and France don't (or didn't), even allow politicians to make direct TV ads.

But when it comes to free speech (hate speech, defamation, writing checks), we are so much smarter than the rest of the free world.

Maybe Trump and Carson will make folks rethink or at least question.

Best,

Eric

Sent from my iPhone

On Oct 11, 2015, at 4:45 PM, "Schultz, David A." <dschultz at hamline.edu<mailto:dschultz at hamline.edu>> wrote:

Nicely stated.  We often forget that other democratic societies strike different balances (e.g.  Canada ) and they are able to be free and protect free speech.
On Oct 11, 2015 3:03 PM, "Eric J Segall" <esegall at gsu.edu<mailto:esegall at gsu.edu>> wrote:
The astounding to me about most (not all) of this debate is the mixing of policy issues and judicial review issues. These policy issues are really hard but absent censoring movies or content based restrictions on actual speech (not writing checks), this is all judicial common law in a very difficult area. For God's sake other countries with free speech and free elections do it do much differently. I'm not saying they are right but 5 judges based on vague text and opposite history imposing their views ....

I think, at the least, the policy and judicial review issues should be kept separate.

Best,

Eric

Sent from my iPhonech

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.)

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