Volokh: "Money Isn't Speech." But...
Eugene Volokh on restrictions on the Supreme Court's corporate campaign finance decision, striking down the limits of corporate financing of elections, and on the mistaken notion that money is speech:
Similarly, we wouldn't say "air travel is speech," or "computing power is speech." Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.The problem with restrictions on independent spending on campaign speech -- a problem recognized by Justices Brennan and Marshall and not just by today's conservatives (though Brennan and Marshall would have allowed more such restrictions than today's conservatives do) -- isn't that money is speech. It's that restricting the use of money to speak, like restricting the use of air travel or computers to speak, interferes with people's ability to speak. One can debate whether this interference is justified. But mocking the pro-constitutional-protection position as resting on the notion that "money is speech" strikes me as quite mistaken.
By the way, individual citizens are free to band together in human corporations to fund campaigns, and are more capable than ever to do so, with Facebook, Twitter, and blogs.







Because we can't all have a George Soros in our back pocket.
Steve B at January 25, 2010 12:57 AM
Huh? This seems to not be about the issue. As far as I understand it, it solely deals with various non-human (e.g. non-citizen) entities being all to give campagin donations. Nothing about how candidates can spend money (where money would be used to help speech). The only way I can see the first amendment applying is that these entities can express their support for a candidate via giving them money. So actually it loks like giving money is "speech" just not all that clear.
If you look at it another way, the law was to prevent certain entities from over-shouting the other entities.
I see the problem slightly differently. Now entities that are not neccessarily of this country or at least maybe under the control of another country can help a canidate win. This does not seem right. It seems to me that only citizens should get to play significant parts in getting their leaders elected.
The Former Banker at January 25, 2010 1:29 AM
The law in question prohibited corporations from creating their own independent works, such as billboards, commercials and movies, that support a political idea or person. For example, Planned Parenthood was not allowed to send out mailers before elections saying "these are the candidates we agree with; please vote for them." There exist in the United States a vast number of explicitly political organizations, from the NRA to MoveOn.org, who were previously required to shut up within 60 days (or whatever) of an election.
The nationality of speech-makers is a different issue. I don't know what the rules are for foreigners to contribute to politicians, but as long as corporations are legally people, it makes sense to treat them like people (which doesn't happen enough IMO).
The fundamental problem is that politicians are bought and paid for by special interest groups. McCain-Feingold tried to appear to solve it by regulating the funding of politicians by such groups, but obviously that failed, after generating millions of dollars or more in compliance costs. Fundamentally, Congress is not interested in cutting the flow of goodies from lobbyists to themselves.
Pseudonym at January 25, 2010 5:20 AM
"Congress shall make no law ... 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."
I am squinting hard, but still do not see where corporations, unions, or any other form of legal entity is excluded from this very broad protection.
If it was meant to only include people, perhaps they would have included some qualifier, or at least not used such absolute language.
Spartee at January 25, 2010 7:14 AM
Campaign contributions are still regulated as to who and how much, campaign ads have become fair game but with disclosure, so if corporation A runs a campaign ad for candidate B we will know that it was corporation A that did so. I don't have a problem with that, gives voters a chance to separate the wheat from the chaff.
jksisco at January 25, 2010 8:11 AM
I'm with jksisco; as long as there is full disclosure, I don't see what the problem is. You could maybe sorta kinda make the argument back in the pre-Internet days when someone with the cash to buy TV time and newspaper ads could dominate a discussion, but cash can't buy eyeballs like it used to.
I understand that part of the majority opinion focused on the spiraling regulatory regime surrounding campaign speech; something like 40 different categories of speech, 71 different types of permitted and non-permitted organizations, and thousands of FEC regulations. I have a theory that when the law becomes too complex for a reasonably well educated person to follow, it inherently becomes tyranny, and part of the opinion seems to agree with that (first time I know of an SC opinion endorsing that view, even implicitly).
And besides... we all know that candidates and organizations with sufficient political clout and connections have been able in the past to simply ignore election law and do what they want. It wound up working as a form of incumbency protection, which I'm sure was not an accident. So this decision could make 2010 even more interesting.
Cousin Dave at January 25, 2010 9:25 AM
If it was meant to only include people, perhaps they would have included some qualifier, or at least not used such absolute language.
Hmmm... I am looking real hard and it seems like the constituation is only directed at "natural people" (as opposed to "legal people"). From a quck review, I don't see anywhere where it deals with corporations. Hence, in the constituaion's world, there are no corporations. My 5 minutes of research indicates that corporations were not significant in the US till at least the 1820s and perhaps much later.
corps are clearly not fully people. If they were, then they could hold office. I can see it now...President General Motors Corp.
The Former Banker at January 25, 2010 3:37 PM
Its evil and wrong if its the other guys, not your group promoting your desires/beliefs etc.. Its ok for GE who owns NBC to have influence but not others. Unions are ok and have been a major force for decades, even after mccain-feingold but well unions are on the left usually, so they're legit voices of the people.
Unions have poured millions into a new tax measure here in Oregon this year, a tax that will likely keep gov. workers from getting a pay cut (and help fund their PERS retirement fund) under the guise of it being to keep essential services (schools, cops, fire, etc.) paid for and staffed. But those tea party folks are all sheeple in league with the healthcare corps and jerks for voting over their bottom line.
Sio at January 25, 2010 4:08 PM
I'm sort of split, even today with the internet.
If GE, or 3M, or the DOW group (with 30 subsidiaries each) were to start sending out flyers everyday -- We're Cox, Disney, NBC, GE, Boeing, KFC, Taco Bell, or A&W Stands -- and we're for/against John Doe for president, house rep. or dog catcher -- what do you think their electability would be?
Now reasonable restrictions could work.
But when have we ever seen anything come out of the state & federal governments?
Jim P. at January 25, 2010 4:50 PM
Any American entity, be it a person, corporation, union, PAC, or other group, should be able to fund any political campaign within its jurisdiction as much as it wants. Funding by an entity above a certain amount (say, 100 or 200 dollars) should be made a matter of public record, IMO.
mpetrie98 at January 25, 2010 5:56 PM
I'd suggest each canidate gets the same flat lump cash sum to finance thier campaign, all are allocated the exact same amount of broadcast airtime and no one can donnate cash or be paid for working on a campaign.
If you want to contribute donate your time.
For politicans going for a reelection thier staff can not work on the campaign.
Throw up these restriction and we'll see who really wants to work in politics to 'make a difference'
lujlp at January 25, 2010 6:20 PM
And then you will have Yum! (owner of Arby's, KFC, Taco Hell, etc.) allowing their employee's to take 6 of their 8 hours to go leaflet against anti-immagrant legislation.
The emloyees of GE and NBC, ESPN, etc. getting comp time to cover the phone bank at the senator's RNC office.
If they aren't bought off already....
Jim P. at January 25, 2010 8:10 PM
"Because we can't all have a George Soros in our back pocket."
We all make friends with those who share our values:
http://www.cbsnews.com/stories/2005/04/27/eveningnews/main691413.shtml
Gog_Magog_Carpet_Reclaimers at January 25, 2010 8:49 PM
Corporations != people, and should not have First Amendment protections. But since The Roberts court never met a corporate cock it did not want to deep throat, I'm not surprised.
However, this gives Dems a great populist opening (that they, in their endless fecklessness will never take): ban foreign dollars from US elections. Even teabaggers will love that legislation. And it will effectively exclude all publicly traded companies since some of their backing comes from outside the US. Win-win. Of course, the gutless morons of the Democratic party will never do this. But they should.
Whatever at January 25, 2010 9:55 PM
Yea maybe Arby's or whoever can leaflet against anti-immigration or whatever cause.. They can ASK employees to do the work for them. But a corporation should not compel a person to go against what they believe in.
John Paulson at January 25, 2010 10:47 PM
You say that like it's a bad thing. Respect for rule of law, as opposed to outcome-based decision-making, is a sign of a healthy court.
In any case, the Roberts court has ruled against "business" a lot.
I'd expand that to say that an organization should not compel a person to go against what they believe in. Unions do that all the time, and it's wrong.
Pseudonym at January 26, 2010 8:53 AM
I am not sure most of your opinions can be changed by facts. But, if you saw the excerpts from the transcripts, it is possible you might understand what happened.
I supplied no-fee counseling to divorced/ing men from 1984 to 1993. I also did considerable legal research so I could give them useful advice when dealing with the courts.
One thing I told them all the time, "No dirty tricks. Male judges are very sexist, and believe it is their duty to protect poor, helpless, stupid, inferior women from big strong, smart, superior men. Women can perjure themselves, can do every dirty trick in the book. If you try it, and piss the judge off, he will happily destroy you, while giving her all the slack in the world. NO DIRTY TRICKS."
DO NOT EVER PISS OFF A JUDGE. Even if you are in the right, he will rule against you.
The government pissed off the judges. Roberts, I think it was, asked the gov't attorney a number of questions on how they were interpreting the laws. It came down in the end to, "If a (corporation or legal entity) prints a book which includes a statement on the fitness of candidates, will you put them in jail?"
The "Yes, of course" response very obviously pissed off at least five of the justices. Set and game.
Another rule in life is "if you abuse it, you lose it." The government clearly intended in abusing what at a lesser degree might have been a good law. They lost it.
So, since when can a government agency do anything right? Yet, this stupid law put a government agency in charge of our campaigns.
Also, note that journalists, 95% of whom are left wingers, were allowed to continue their political agenda. Who do they work for? Ahem, big corporations.
This whole law was stupid from day one, it violated the First Amendment, and now the Supreme Court has fixed it. About time.
irlandes at January 26, 2010 11:04 AM
"Also, note that journalists, 95% of whom are left wingers"
It's the valuable, well-researched and verifiable data points like this that keep this blog alive and relevant.
Gog_Magog_Carpet_Reclaimers at January 26, 2010 11:32 AM
Also, note that journalists, 95% of whom are left wingers
When ever a conservite trot out a line lke this I always respond with
"Well its not our fault that you conservitives dont care enough about the public to hold down a job reporting the news"
I just love the look on their faces
lujlp at January 27, 2010 3:21 AM
Populist? How about against their self interest. Can you say Al Gore?
Yeah? How's my balls taste?
Never happen. Because they'd end up cutting off the unions (what, you think Soros is American?), the press (mostly transnationals), and all their backers too.
brian at January 27, 2010 7:23 AM
Ask John Stossel how easy it is to be a non-liberal in a major newsroom.
People think Fox has a right bias because they are the only network that actually puts conservatives on the air as something other than a novelty.
brian at January 27, 2010 7:27 AM
>>"Also, note that journalists, 95% of whom are left wingers"
>>It's the valuable, well-researched and verifiable data points like this that keep this blog alive and relevant.
In spite of your sarcasm, the research has been done, over and over. 95% of journalists are liberals. Your ignorance of the facts are not my fault.
I did not see the speech last night, but reports were Obama made remarks about the Supreme Court which did not sit well with them. He did what I warn people not to do: he pissed them off. Even those justices who did not agree with the ruling take themselves seriously as part of the Supreme Court and an attempt to humiliate one of them is an attack on all of them.
My prediction is the Dems are going to learn a lot in a short time. They think they can skirt the ruling and pass regulatory laws which accomplish the same thing. For 37 years anti-abortion legislators have tried to skirt Roe v. Wade, and in every case, except the bit about sucking out the baby's brains, which was rejected only because no one could show a real need for it, they have failed. The Supreme Court goes to the result of the laws, rather than the form, and tosses them out.
My prediction is that is what will happen with Obama's attempt to bypass the Supreme Court ruling. He has pissed them off.
irlandes at January 28, 2010 9:35 AM
>>"Well its not our fault that you conservitives (sic) dont care enough about the public to hold down a job reporting the news"
>>I just love the look on their faces
Have you ever attended a university class taught by a rude, obnoxious right winger who stifled any dissent in his class and flunked anyone who didn't go along with his personal political beliefs?
I doubt it because the liberal academics in charge of academia would have him fired in a few days. Gotta' be liberal, then you can be obnoxious and flunk anyone who doesn't go along with your political biases.
Journalism classes are about as obnoxiously liberal as exists on the planet. It is very difficult today for a conservative to receive a degree in journalism. Conservatives who try soon change their majors. (I have talked to such students over the last several decades.)
This is also why fewer men go to college every year. People of any self-respect will not tolerate the personal attacks involved.
I would say you associate with a low class of right wingers. Your 'clever' comment is actually meaningless nonsense, and shows you are unaware of the liberal nature of journalism schools, or so hopelessly liberal you can't tell the difference.
And, of course, since 95% of journalists are liberals, it is natural that few conservatives even attempt to be journalists. If they do somehow receive a degree, no liberal boss will hire them. This is so simple, it is hard to believe even a liberal needs to have it explained.
irlandes at January 28, 2010 9:46 AM
There is a lifestyle called "cocooning". This means isolating yourself from anything and everything which does not match your chosen beliefs and lifestyle.
Christian Fundamentalists are well known for this. They associate only with other Fundamentalists, and their socializing tends to be at their church. They limit secular TV, and either home school or send their kids to Christian schools.
The problem with cocooning is it leaves you uninformed, er, ignorant, of the reality around you.
In reality, the Christians are not the largest group of people to cocoon. The largest group are the liberals. Since 95% of journalists are liberals, they watch only the liberal TV and satellite channels. They read newspapers and magazines which are primarily liberal.
If they do find someone who is a true conservative, they do their darndest to get him fired. Ala Beck and Limbaugh. Even relatively liberal Larry Summers lost his job for saying something that was true, but not liberal PC.
Because they are so used to totally liberal news, when they encounter Fox News, which usually attempts to present both conservatives and liberals, they really think they are totally conservative. Gasp!!! News isn't supposed to present the conservative viewpoint! Horrors!
They are so totally cocooned they do not seem to be able to grasp that a majority of people in the US are conservatives.
The only reason the Dems have won anything in most states is because most "Republican" legislators are actually RINO's.
The problem is, we need both sides. Human beings since the day of Socrates and Plato have been divided into the two groups. Either group in charge with no countervailing power from the other side is bad. Both sides with total power will go crazy and start killing their own citizens, though history shows the liberals are far more efficient and thorough at the job. (Germany 6 or 8 million; USSR over 50 million.)
irlandes at January 28, 2010 10:21 AM
Leave a comment