Tuesday, April 15, 2014

Stamato vs. the Koch Brothers: Campaign Finance and the First Amendment

In the comments section of the article Koch brothers and their money make America more dangerous by Rutgers faculty member Linda Stamato, I had several engagements with other correspondents. The main point of contention was the issue of campaign finance, or money in politics. 

The comments of other correspondents are block-quoted below, followed by my posted replies (in blue), and follow-up comments (in standard black):

ulyintewksbury wrote:

Dark money rules. It is the new paradigm in politics.

"Dark money?" Private money is only "dark" to state supremacists that oppose dissent.

A classic inversion perpetrated by statists is to characterize any unregulated or little regulated (i.e., free) element of the private sector as "dark," "shadowy," "below the radar"; something sinister that escapes the light of government control; a "loophole" in the fabric of society.

Spudwrench offered his own version of campaign finance reform:

Limiting donations to "persons" with a Social Security Number would be a good start.

So you would forbid associations of 2 or more persons from cooperatively engaging in free speech? The First Amendment also covers freedom of association (assembly). Your suggestion would mean that individuals forfeit their free speech rights as soon as they join with others—right along with their right to petition their government. This would greatly diminish the individual citizen's voice, and— in a country of 320 million people—probably spell the end of representative government. It would eviscerate the First Amendment, which you should re-read. And just to stop people from voicing their opinions in the public square. Very dangerous.

The First Amendment reads, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

HAL9 replied to me:

I do believe that you have supported Citizens United and the more recent campaign finance US Supreme Court decisions/

I'm not sure whether HAL9 though he had a "gotcha," or just sought clarification of my views. But I welcomed the chance to clarify:

HAL9: I fully support Citizens United. That was a major victory for free speech, as it involved the rights of private citizens to spend their own money on independent advocacy.

I'm undecided on the issue of direct contributions to political campaigns. However, I do believe the reaction to the recent SCOTUS [McCutcheon] decision was overblown. It left intact limits to individual candidates and disclosure requirements. The decision merely ended the limit on how many candidates a person can contribute to.

As Chief Justice Roberts reasonably wrote, “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”

Smugwump also chimed in on campaign finance reform:

We need a constitutional amendment that gives congress the power to regulate campaign spending.

Translation: "We need a constitutional amendment that gives politicians the power to silence their own critics."

Immediately preceding that statement, Smugwump said, "McCain-feingold got overturned because it violated the first amendment. And rightfully so. Of course unions and corporations have their rights protected by the bill of rights." I chose to ignore the blatant contradiction.


They [the rich] are buying legislation that favors their business interests, often at the expense of the majority of citizens. How is this even defensible in a representative democracy?

"How is this even defensible in a representative democracy?"

Precisely because America has become a "representative democracy." If America were a constitutional republic limited to protecting individual rights equally and at all times, as it was originally intended, no one would be able to buy legislation that favors their interests, because the government wouldn't have the power to favor some interests over others.

James Madison understood that the secret to checking the power of special interests lie in checking the power of government. He wrote: 

"In every political society, parties are unavoidable. A difference of interests, real or supposed, is the most natural and fruitful source of them. The great object should be to combat the evil: 1. By establishing a political equality among all. 2. By withholding unnecessary opportunities from a few, to increase the inequality of property, by an immoderate, and especially an unmerited, accumulation of riches. 3. By the silent operation of laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort. 4. By abstaining from measures which operate differently on different interests, and particularly such as favor one interest at the expence of another. 5. By making one party a check on the other, so far as the existence of parties cannot be prevented, nor their views accommodated. If this is not the language of reason, it is that of republicanism."

Madison believed that wealth should be acquired and maintained by one's private productiveness, rather than rely on government favoritism ("an unmerited, accumulation of riches"). That's how I interpret "the silent operation of laws, which, without violating the rights of property. . ." 

Finally, 63 and out:

Money is not speech. Koch speaks no louder than me. If that is what you think our forefathers had in mind you're sadly mistaken.

63 and out: Money is the means to exercising free speech. Without spending money, there would be no newspapers, TV, Radio, books, or any other media forum—and no NJ.com, which enables you to state that "money is not speech." Any restrictions on the spending of money is a restriction on freedom of speech. First Amendment rights are inextricably linked to property rights.

63 and out's comeback:

So, You really ARE saying free speech is purchased?

No, but the means is.

Folks like 63 and out apparently believe that free speech begins and ends with the actual physical voice, as if the First Amendment merely sanctions a shouting match—with the loudest voice winning—and no means of reaching a wider audience allowed. They might respond; but some money can be allowed, but only with strict limits, which would mean that Congress would have the power to control the public debate—and to silence its critics.

Related Reading:

Ideas, Not Money, Matters in Political Campaigns

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