Wednesday, June 28, 2006


"Free speech is not, nor was it ever 'free.'"

In the efforts to reduce campaign finance fraud and the effect where only a millionaire or someone beholden to very wealthy people can run for national office, many have pushed greater and greater restrictions on campaign finance. The most recent congressional effort was the McCain-Feingold campaign finance reform bill that prohibited any specific campaign advertising within a month of the national election. This effectively limited peoples' free speech during the time most critical that free expression of political dissent and ideas are most important, and gave rise to the 527's such as and Swiftboat Veterans for Truth.

SCOTUSMonday in the US Supreme Court decision Randall v Sorrel the court held that restrictions on campaign finance are a violation of free speech. This decision overturned a circuit court Buckley v Valleo ruling in Vermont in 1976. In his SCOTUS dissenting opinion, Justice John Stevens wrote:
"As Justice White recognized, it is quite wrong to equate money and speech... Accordingly, these limits on expenditures are far more akin to time, place, and manner restrictions than to restrictions on the content of speech. Like Justice White, I would uphold them "so long as the purposes they serve are legitimate and sufficiently substantial."
Eugene Volokh examined this decision on Opinion Journal online:

Still, Justice John Paul Stevens's repetition of the old saw that "it is quite wrong to equate money and speech" struck me as mistaken enough to be noteworthy. (The occasional argument of some critics of campaign finance law that money is indeed speech is equally mistaken.)

The reason that the court struck down the law here--which, among other things, would have limited a candidate's total spending for Vermont state representative races to $2,000 for both the primary election and general election put together--is not that money is speech. Rather, it's that restrictions on spending money to speak are restrictions on speech, and "money is speech" is, I think, a misleading way of expressing this claim.

Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.

He goes on to point out other examples where reducing spending on something is effectively reducing that thing - education, for example.

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.

In essence, his point is that money does not equal speech, but limiting money can limit speech, particularly in a political campaign. Given that the primary purpose of the 1st amendment's free speech clause was for political speech, this would appear to be a problem. Commenters to this article responded:
Excellent concise, logical analysis by Mr. Volokh. Would it be possible to replace Justice Stevens with Mr. Volokh? The logic used by Stevens in his dissent is very effectively counter-argued by Mr. Volokh in his brief analysis.
-by Jeff Idhe

Professor Volokh's reminder that money is not the equivalent of free speech is a useful rejoinder as we reflect on the meaning of Randall v. Sorrell. Money is money, that's all; but with it you can buy things like television ads or a megaphone. If restrictions on giving away money threatens free speech, you can argue that spending limits threatens all our rights: abortion, education, national defense. We must tread lightly regarding the care and handling of money as a manifestation of inalienable rights.
-by Michael Mccaffrey

The fact is, whether it is 1787 and printers are being paid to print hand bills for a campaigning politician or it is 2006 and television networks are paid to run a commercial for a campaigning politician, money is, and always has been involved in promoting the ideas within a democratic election. Free speech is not, nor was it ever "free."

Whether one shouts from the roof tops or puts it in writing and copies it a few hundred thousand times, free speech requires energy to produce it. When certain elite individuals decide to control how much energy is used to produce free speech, free speech is, by definition, regulated. I am currently told that I am not allowed to listen to certain people a certain number of days before an election--for my own good.

Please, show me in the United States Constitution where that is written. When you make the act of producing free speech criminal, you have conceded we are not free people. This is not rocket science, Justice Stevens, there will always be an expense in telling one's message whether it is in the form of lung power or dollar bills. Why is that so hard for you to understand? There is and always will be a cost in producing communication, whether it is outward and visible or driven under the table by well-meaning authority figures such as yourself. Do not limit my speech.
-by Robert J. Sciolino

I'm convinced that many of the people who are so fervently "protecting" our rights are merely doing it for their own economic reasons.

What if we limited the amount that a woman could pay for an abortion? After all, shouldn't poor people have "equal access" to abortions? By making all abortions essentially non-profit, we would quickly find out who is "protecting a women's right to choose" primarily for their own economic reasons.

Likewise, what if attorneys were prevented from reaping a large percentage of "economic losses" in medical malpractice cases since those losses are based on projected loss of income? If an attorney gets 30% to 50% of this, the victim gets only a portion of his loss covered.

Most of these folks are merely exercising free enterprise; I'm all for that, however, we need to remember this when they start howling about "protecting the rights of others."

Likewise in the campaign finance debate. Who are we protecting by limiting campaign expenditures and/or contributions? Maybe we should concentrate on exactly who is baking certain candidates rather than limiting how much they are donating.
-by Glenn Rowan

Perhaps the fact that campaign spending limitations are passed by politicians all of whom are incumbents is the most convincing proof that, in fact, "money is speech." Incumbent legislators spend considerable sums of taxpayer money as part of their office budgets to communicate early and often with constituents to tout their credentials and promote their continued incumbency. By the time elections roll around, they can afford to live with some cleverly crafted restrictions on campaign spending as the price for outflanking potential challengers.

When this taxpayer financed scheme is denoted, they then dissemble, claiming that in doing so they do not engage in campaigning, but rather "constituent relations." Next they'll suggest that bears don't relieve themselves in the woods either.
-by Fred Medero
So if campaign finance restrictions and advertising bans are not the answer, what is? Quite simply, if government was not so big and not so expansive, then the desire to corrupt, spend so much, and influence politicians at the federal level would be proportionally reduced. Strip the federal government down to constitutional levels, and you wouldn't need finance reform as much.
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1 comment:

Anna Venger said...

I always thought that the McCain-Feingold campaign finance reform bill was a travesty. It violated our civil rights. It's one of the reasons I don't care for McCain.