Another poster said this is a ridiculous analogy. I have to confess I don’t think it is ridiculous. I would be open to a law which puts everyone on a more equal footing as far as access to criminal defense lawyers is concerned.
The main difference I see is that the Lochner court created the whole substantive right of “liberty of contract” out of whole cloth. It is largely seen in the modern world as a terrible decision and a tip of the cap to the wealthy. Arguably the first raw judicial activism in the United States.
On the other hand, the right to free speech is well-settled and well-understood to be a fundamental right.
I wasn’t talking about “speech” in that case. I was talking about “the press”. Remember, the first amendment protects not only speech, but freedom of the press. Is the government to be in the business of deciding who is “the press” and who isn’t?
Emphasis added.
Much has been made of a proposed anti-SSM amendment as being the only time (since prohibition) that an amendment was proposed that would curtail freedom rather than expand it. The OP is in the same category.
First, that’s about the weakest argument you could possibly make. That notwithstanding, a fundamental difference between our perspectives is that an amendment is needed to expand freedom.
I say this given CU as established law. Unlimited corporate and personal donations to an individual distort democracy. Protecting that in the name of freedom is an abomination.
Explain.
Emphasis added.
Do you even realize that the CU decision does not allow that?
Appeal to emotion.
Yet. There are enough current machinations to have an impact on democracy.
As a short example of perspective, consider a burgeoning democracy. One with substantial oil and mineral reserves, but little to no history of democratic rule. Consider the run-up to an election. Given the per capita income of dollars per day (if that) and the relative enormity of the extracative industries’ purse, if the latter were able to spend unlimited funds on the campaign, would you consider the election fair?
Not really, but that’s not what I meant. Explain how “an amendment is needed to expand freedom”. In what way does the proposed amendment expand freedom?
It has an impact on the political process, but that is the whole point of every piece of political speech.
Voter fraud, rigged elections, and stolen votes have an impact on “democracy”. Speech doesn’t. It doesn’t prevent anyone from voting.
As long as everyone who is eligible to vote can vote, yes. For the record, I was being facetious, above, when I said the stupid people had to be protected from the wrong kind of political speech.
Then that’s exactly where we differ. A functioning democracy is more than voter eligibility.
If you (rightly) recognize the absurdity of, say, direct untraceable and unaccountable private donation to a candidate, then you can recognize that where you would draw the line limiting funds transfer and I do are in two different places–yet you still draw a line.
Oh, and any improvement to the electoral process expands freedom. Campaign finance reforms/laws improve representation; they improve freedom.
Probably. But that’s wasn’t the question. You asked about fairness.
I need to read that a few more times before I understand what you’re saying.
Restricting speech isn’t a “improvement” unless you are trying to rig the process for a specific outcome. Only then, you don’t have democracy.
Then let me rephrase. While an expanded franchise is a critical factor in determining whether an election was fair or not, it is not the only factor.
Placing limits on campaign finance improves democratic processes. Taking it for granted that by “speech” we are referring to spending, then I assume you already agree with this.
To challenge my assumption, do you think a person should be able to give unlimited funds to a candidate without disclosure? (Note: requiring a candidate to disclose is the same as a ‘no’.) If my assumption is wrong, and you honestly believe that there should be absolutely no campaign finance laws or restrictions whatsoever, then the point of our departure is earlier than I initially believed.
If you believe that is an absurd situation and that it’s almost a given that this scenario would confound democracy, then we are in agreement that dome degree of campaign finance laws are needed–we merely disagree on where the line should be drawn.
We can debate in a different thread what the definition of a “fair” election is, but I don’t consider one side spending more money than the other to be important. Besides, do you have any evidence that the CU decision is going to skew the money more towards one party than the other? Last time around, Obama had a lot more money to spend than McCain. Did that make the '08 election “unfair”?
You keep saying that, but what makes so sure it’s true? I think the default position should be: the more speech the better unless proven otherwise. That’s what freedom is about. The state doesn’t get to restrict our freedom unless there is compelling reason to do so. And when it comes to speech, which is at the very core of the democratic process, that reason needs to pretty damn compelling.
The speech I’m referring to is speech. It takes money to get your speech out there (although not so much anymore, with the internet), but the fundamental issue is speech. Saying you have free speech, but the government is going to limit your ability to speak is an oxymoron. Free speech is just that-- speech free from government control.
I’m not averse to disclosure laws, although I have to admit I have not spent a lot of time making sure that position is in alignment with my sense of what a free people deserve from their government.
So to put it more simply then:
Do you believe that there should be any campaign finance laws?
If so, then we’re just haggling about the price. I believe campaign finance laws strengthen democratic processes. Hence, passing a campaign finance law has the ability to expand democracy (and by extension, freedom).
If you believe that **all **campaign finance laws are antithetical to the First Amendment, then our point of departure is there. I think, though, that it would be fairly easy to construct a range of scenarios in which democracy is subverted by the absence of such laws.
Well, yeah, sorta kinda. But what is the purpose of more speech? Not simply to add to the cacophony of dueling voices, shirley? But that all viewpoints be heard, so that the citizen can make an informed choice. The speech itself is not what merits a secular holiness, but the purpose of the speech, informed governance by the people, for the people, and so forth. If there is no debate, no difference of opinion, freedom of speech would serve no purpose.
The purpose of free speech, then, is that all voices be heard, so far as it is practicable. It is founded upon the principle of equality, that my civil rights and the Koch Brothers civil rights are precisely identical. If we permit them the privilege to speak louder, longer, and pervasively, due only to their possession of greater wealth, then that principle of equality is buggered.
How to implement that principle is clearly a thorny question, it must be done with the same exceeding caution that guides sex amongst porcupines, gingerly, very gingerly. But saying it is difficult is much different than saying it must not be done.
I don’t think the government should be controlling the source or the content of political speech. If there are regulations that don’t inhibit speech (disclosure laws, I think fall in that category), then fine. If the regulations touch on libel laws, then fine.
I don’t think the government should be in the business of decided what is good speech and what is cacophonous speech.
Not really. It’s up to the people who have the diverse opinions to bring them into the public sphere. All viewpoints that have a champion, yes. I don’t want the government seeking out diverse viewpoints. I don’t wan the government involved at all in deciding what speech is to be allowed and what is not, what speech is to be encouraged and what is not. Again, consistent with libel laws, and as long as the speech is political, hands off.
Agreed. I don’t see that CU diminishes the debate in any way.
It is founded on the principle of freedom, first, but let’s just say it’s a close tie between freedom and equality. Equality before the law, though, not in outcome.
I guess I just trust the people more than you do. I don’t feel any need to protect them from any amount of political speech, not matter what its content. History has shown us that rich people come in all shapes, sizes and political philosophies. And the people have shown a remarkable ability to organize, raise money, and press for political change.
Let the people know who is paying for what, and then let them decide what they want to do. Technology makes it easier and cheaper not only to get your message out there, but to disseminate the information the people need to know about the source.
First off, trying to frame it in terms of “I guess I just trust the people more than you do. I don’t feel any need to protect them from any amount of political speech, not matter what its content.” is just another appeal to emotion and similarly empty. Things like that and generic flag-wrapping don’t advance any sort of argument.
You cannot say that on the one hand I am free to anonymously give unlimited amounts to the person of my choice if that person must turn around and disclose the donation. You can’t have it both ways: mandated disclosure negates anonymity. Either you believe that any and all campaign finance laws are per se wrong, or you must confront the notion that much of your arguments fall away at your acceptance that some degree of regulation regarding monies spent and transferred to influence an election is acceptable.
As far as an imbalance between parties, first, an imbalance doesn’t have to exist to claim that unlimited spending subverts democracy. It’s basic two wrongs don’t make a right. Second, you seem to suggest that if there was an imbalance, that would carry some import. Were it shown that tens of millions flowed from an extraordinarily small percentage of the population to one party, that just compounds the overall problem.
No, it’s a direct response to what elucidator posted.
No. As I said, as long as disclosure laws don’t inhibit speech, then I see no problem with them. If there is objective evidence that they do, then out the go. I’m not aware of any such evidence, though, and so I’m OK with them.
What type of political speech is “wrong”?
Again, you miss that I am responding to another poster’s concern about imbalance. I didn’t bring it up. I’m simply pointing out that claims of imbalance don’t stand up to the facts. But it wouldn’t bother me, legally, if there was an imbalance.
Sorry, there are a lot of related issues–you’d said “Besides, do you have any evidence that the CU decision is going to skew the money more towards one party than the other?” I was responding to that.
Again, you cannot have it both ways. Disclosure laws negate anonymity. Full stop. If a corporation or private individual is free to pay any amount they desire to a candidate anonymously, then end-running around that anonymity by requiring a candidate to disclose negates that so-called freedom.
I honestly don’t know why you’re making such a big deal about this. Congress can’t abridge free [political] speech. Does requiring disclosure abridge free speech? I think not, and so I’m OK with disclosure laws. If you have evidence that they do, then bring it. I’m happy to change my mind if the data is there. Disclosure laws, to me, are a peripheral issue.
Can I, within your definition of free speech, anonymously donate unlimited amounts of money to a candidate? (Either for the case that anonymity extends only to the general public or to the candidate as well.)
I think I’ve made my position crystal clear, and I don’t understand why you think that question needs to be asked.