[EL] Why campaign spending is protected - in action

[Benjamin Barr]

It isn't too difficult to value political speech at a comparatively high
level when many countries don't value it (Schultz's "different balances").
That's sort of the point of the First Amendment.  Remember that England is
the country that decided it was illegal for Animal Defenders International
to run an ad about "My Mate's a Primate" without getting prior approval
from government.  It is the same country that banned egg advertisements
years back because the government didn't like that egg advertisers didn't
mention fruit or toast. America's game is soft suppression through
complicated regulatory machinery ("campaign finance reform") rather than
usual outright bans.

Forward,

Benjamin Barr
General Counsel
Pillar of Law Institute





On Mon, Oct 12, 2015 at 10:58 AM, Eric J Segall <esegall at gsu.edu> wrote:

> 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>
> 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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
> *From:* Eric J Segall [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
> *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> 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
>
> Alexandria, Virginia
>
>
>
>
>
>
>
> *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>] *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
> *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 <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 Eric J Segall
> [esegall at gsu.edu]
> *Sent:* Sunday, October 11, 2015 4:59 PM
> *To:* Schultz, David A.
> *Cc:* 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>
> 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> 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> 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> 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> 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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