McCain-Feingold is a bad idea

[Gadarene]

You utterly misapprehend me. I’m not suggesting anything about the relative intelligence and capacities of the public at large–in fact, if you look at the thread that I cited, I think you’ll find that I’ve got a hell of a lot of confidence in our fellow Americans indeed.

But we’re back where we started, and just when it seemed that an understanding could be reached. The point is not that a party shouldn’t help fund the campaigns of its candidates, but that outside individuals and organizations should not make large contributions to prospective politicians that might, to some degree or another, influence the way that politician brings the weight of his office to bear. I realize that my own points may be easily ignored, but did you just skip entirely over Spiritus’s cogent analysis earlier in the thread? The aim of a democratic republic is that the interests and preferences of the citizens are represented as proportionately as possible. Allowing the possibility–no, the probability–of quid pro quo considerations between a candidate and individual members of his constituency does not achieve this aim. If everyone had comparable amounts of money to spend “advocating” for a particular candidate, that would be a different story…so it’s too bad we’ve still got staggering inequity in this country, huh? Or haven’t you noticed that the exercise of political preference through the access gained by campaign contributions would leave a sizeable portion of this country out in the cold?

The Supreme Court generally knows more about constitutional issues than laymen like us, and I’d trust their judgment on Buckley. Further, I’d trust the judgment of the legislature that passed the Campaign Reform Act of 1974 in the first place. There was a hell of a lot of bad stuff going on in the '72 election which prompted that bill, and I’d daresay that the presence of money in politics has, if anything, grown in the intervening thirty years. It’s worth noting, too, that the 1974 act put caps on both political contributions and political expenditures; the Supreme Court upheld the former (in the passages I quoted earlier) but struck down the latter, reasoning that spending money on your own campaign is subject to First Amendment protections. This is where campaign finance opponents (coughMitchMcConnellcough) get their blatantly out-of-context statement that money equals speech. Anyway, let me quote again from Emerson:

The principal issue is one of distinguishing “expression” from “action” and giving full protection to expression. In some situations the government regulation affects both conduct consisting of action and conduct consisting of expression; then the rule of full protection requires that the regulation be drawn in such a way as to restrict only the action, leaivng the expression uncurtailed.

This was written before Buckley, and that sure sounds a lot like what the Court did when evaluating the 1974 act; they deemed that expenditure was expression and contribution was action, and they upheld restrictions on one but not the other. It needs to be repeated, then, that for political contributions money does not equal speech, and there’s really no logical reason why it would.

As for your stance on repealing the popular election of senators: I thought you wanted to prevent entrenchment of the existing political power structure. Allowing crony politics again would do exactly the opposite. And how, pray tell, amd I “randomly abridging people’s rights to political freedom”? Boy, maybe I should move to Cuba!

Your stance on contructionism:

I just want judges who aren’t going to read things into this document that are not there and that take freedom seriously. I’m not qualified for a debate on more technical terms than that.

I’m sorry, but I can’t take that seriously. You don’t want judges to read things into the document that are not there? Back to the three-fifths compromise, I suppose. Your position on this, after so resolutely declaring, “Give me strict constructionalists (sic), or give me death!”, does little for your intellectual credibility with me, I’m afraid.

[jmullaney]

*Originally posted by Gadarene *
The aim of a democratic republic is that the interests and preferences of the citizens are represented as proportionately as possible. Allowing the possibility–no, the probability–of quid pro quo considerations between a candidate and individual members of his constituency does not achieve this aim.

Why not leave that up to the American people to decide? You seem quite duplicitous to insist you have faith in the American people, you don’t think all politicians are corrupt, but, wait, all politicians probably are corrupt and the American people shouldn’t be allowed to sort that out fot themselves. Please make up you mind.

The Supreme Court generally knows more about constitutional issues than laymen like us, and I’d trust their judgment on Buckley.

Uh-huh. So in this case you do have faith in the government all of a sudden? I don’t need an ornithologist to tell me when a duck is a duck.

I’d daresay that the presence of money in politics has, if anything, grown in the intervening thirty years.

Don’t you think this bill can be worked around to? Hmm… isn’t every little city branch of a party it’s own party? Gee, I can just give a grand to every baby-republican/democrat party, and then can each pass it on to whoever they want. Tah-dah – loophole. If '74 made things worse, this’ll make things worse yet again. I can’t concieve of a way to plug all the loopholes of a law that is anti-freedom in a free country. You are never going to be able to make giving money to someone, when no other crime or criminal intent is present, a criminal act.

As for your stance on repealing the popular election of senators: I thought you wanted to prevent entrenchment of the existing political power structure. Allowing crony politics again would do exactly the opposite.

How is having to be elected by a few hundred state reps going to result in cronyism? As opposed to being bought by the highest bidder? At worst, the highest bidder is going to have to buy half the politicians in the state. It is difficult to discuss this with someone who is an optimist at one moment and a pessimist at the next.

And how, pray tell, amd I “randomly abridging people’s rights to political freedom”?

Well, how in the long run do you differentiate political organizations from political parties? What is to keep Mr. X from forming an organization to support Mr. X that takes unlimited contributions and works on his behalf? Wouldn’t you ultimately have to limit contributions to all political organizations – since you won’t know which ones are “legit” or not?

You don’t want judges to read things into the document that are not there? Back to the three-fifths compromise, I suppose. Your position on this, after so resolutely declaring, “Give me strict constructionalists (sic), or give me death!”, does little for your intellectual credibility with me, I’m afraid.

Yeah, well, I know you are busy studying for your LSAT so forgive me if I can’t keep up. Perhaps if you could explain to me what the term “constructionalist” means (or what the three-fifths compromise is for that matter?) you could help us laymen out.

(I don’t think you are trying to imply that I’m a pro-slavery racist because I support the freedoms of speech and assembly, so you must not be talking about what is first coming to mind. ;))

[Kimstu]

jmullaney: *[Originally posted by Gadarene:] “But duly note, please, that the doctrine of the Supreme Court is on my side in this one.”

That is unfortunate. Since the Court members have all been appointed by members of the major parties, this does not surprise me. *

Say huh?? Supreme Court doctrine supports the legitimacy of McCain-Feingold-type campaign finance reform, and you say that this is because justices are appointed by members of the major parties that have been trying to avoid campaign finance reform?? How ya figure?

*But a law that essentially says, should I want to start my own party, I can’t spend more than a thousand dollars of my own money to do so is very troubling to me. That money doesn’t buy much more than a soap box, some used bunting, and a small ad in the local greensheet. *

Maybe that’s the point. Maybe political enterprises in a representative democracy are not supposed to be undertaken by lone individuals. You’re supposed to do more than buy your way onto the playing field: you’re supposed to be supported in your efforts to get there by lots of other people who agree with you.

Political organizations, after all, are about representing the people. They’re not like opening your own tattoo parlor or conducting your own Mithraist tauroctony in an underground chamber or even writing your own political treatise, which are things you do as an individual in the legitimate pursuit of your own individual happiness. But your individual rights don’t include the right to be considered an official political, i.e., people-representing, entity if you can’t find people who want you to represent them and are willing to back you up with votes and money.

Note that this is in no way repressive of your right to express your political views. You can run a billion-dollar “Me for Universal Emperor” advertising campaign if you feel like it, complete with pamphlets and buttons and bumper stickers. You simply shouldn’t be able to take up the public’s valuable time and attention in the important activities of the democratic process, such as voting, unless you can show that the Me-for-Universal-Emperor Party actually succeeds in representing the desires of a reasonably-sized chunk of the public.

Your cherished “political freedom” to do whatever you like with your money IMO doesn’t outweigh the public’s compelling interest in having political organizations be genuinely representative. That’s why one of the things you can’t do with your money is to buy votes: money should not be a substitute for genuine popular support. If the mean old campaign finance laws impose on you the burden of seeking such support to accomplish things that it would be easier for you to do by spending your own money, that’s just too bad, say I.

(By the way, a “strict constructionalist” is akin AFAIK to a supporter of the doctrine of “original intent”, that is, somebody who insist that the Constitution should be strictly interpreted in line with the Framers’ specific intentions. The “three-fifths compromise” is the ruling that slaves were to be considered 3/5 of a person; this is usually adduced as an example of the problems with strict constructionalism, not as an accusation that constructionalists are actually pro-slavery racists. Gadarene can correct me if I’ve interpreted him incorrectly here. :))

[Kimstu]

Also, I believe the actual term is “strict constructionist.”

[Gadarene]

Yep, that did it for me. I now think that you and I aren’t just talking at cross-purposes, but approaching this thing from irreconcilably different perspectives. So irreconcilable, in fact, that you’ve misinterpreted my argument to the point of unrecognizability. If any of that is my fault for not being sufficiently clear, I apologize; it seems certain, however, that no further amount of discussion will increase the level of understanding between us. I’ve developed my perspective from the things I know about constitutional history, political theory, and what I believe to be current societal conditions; I’m sorry to say that the logic you’re using is too foreign for me to address it from that standpoint any longer.

Hell, one more college try.

Why not leave that up to the American people to decide?

Well, let’s see. If both major parties and their candidates utilize soft money for corruptible purposes–and please notice that the word is corruptible, not corrupt–then the only way the American people could “decide” to eschew soft money practices would either be 1)by not voting for the major parties, or 2)by electing candidates who promise to ban soft money (regardless of those candidates’ own past fund-raising excesses). The first could very likely be one of the factors leading to declining voter turnout over the past few years–as, in fact, survey data has shown (many people cite their reason for not voting as “disgust with the current system” or “not feeling that either candidate represents them”). The second would evince itself if a campaign reform bill like McCain-Feingold or Shays-Meehan passed both houses and was signed into law; wouldn’t this be a pretty good indication that the people, through their representatives, were opposed to campaign finance abuses? How else would you like the American people to make their feelings known about money in politics, given that it often takes money to make your feelings widely known in the first place?

See, you’re the one insisting that the McCain-Feingold bill is, on the face of it, unconstitutional. I’ve provided an abundance of evidence to the contrary. Now you seem to be saying that the public really doesn’t want campaign finance reform. Well, some of them may not; certainly you don’t. But it’s facile to the extreme, and not a little ironic, for you to disavow the validity of the Supreme Court’s holding while claiming that people should be able to choose between two candidates who are equally beholden to private contributions, simply because the judicial doctrine in this matter offends your particular sensibilities.

The Supreme Court generally knows more about constitutional issues than laymen like us, and I’d trust their judgment on Buckley.

Uh-huh. So in this case you do have faith in the government all of a sudden? I don’t need an ornithologist to tell me when a duck is a duck.

That’s fine, but I’ll say again that you started this by asserting that McCain-Feingold was “clearly unconstitutional.” That is, you were using the Supreme Court and its interpretation of the Constitution as your authority. If you’re now saying instead that it should be unconstitutional, that’s something entirely different–and I still think you’re wrong. In any event, it’s hardly as simple as recognizing a duck…especially when the top ornithologists tell you that the bird you’re looking at isn’t a duck, but a pigeon. Then, if it were me, I’d trust the ornithologists.

And as for me having faith or not having faith in government–man, when are you gonna learn that things aren’t black and white, and that “government” is made up of a whole lot of different little bits, most of which are mostly right some of the time and mostly wrong some of the time. Me, I try not to make generalizations if I can help it–because I’ve never met a man who made sweeping generalizations that wasn’t an inglorious hoptoad.

I’d daresay that the presence of money in politics has, if anything, grown in the intervening thirty years.

Don’t you think this bill can be worked around to? Hmm… isn’t every little city branch of a party it’s own party? Gee, I can just give a grand to every baby-republican/democrat party, and then can each pass it on to whoever they want. Tah-dah – loophole.

Sure. Too bad that’s not remotely how it works.

If '74 made things worse, this’ll make things worse yet again.

I’m impressed that you managed to fit that many logical fallacies in so short a sentence. How exactly did '74 make things worse?

I can’t concieve of a way to plug all the loopholes of a law that is anti-freedom in a free country. You are never going to be able to make giving money to someone, when no other crime or criminal intent is present, a criminal act.

And yet caps on political contributions are legitimately unconstitutional. Interesting.

How is having to be elected by a few hundred state reps going to result in cronyism?

I do not think that word means what you think it means; wouldn’t state reps exercising their own criteria in choosing a national representative, completely bypassing the democratic process, be the definition of cronyism in this context?

You don’t want judges to read things into the document that are not there? Back to the three-fifths compromise, I suppose. Your position on this, after so resolutely declaring, “Give me strict constructionalists (sic), or give me death!”, does little for your intellectual credibility with me, I’m afraid.

Yeah, well, I know you are busy studying for your LSAT so forgive me if I can’t keep up. Perhaps if you could explain to me what the term “constructionalist” means (or what the three-fifths compromise is for that matter?) you could help us laymen out.

Um, you’re the one who talked about “constructionalists” in the first place–why bring constructionism up if you know nothing about it, unless you just wanted to impress the rest of us with a catchy political buzzword? The three-fifths compromise, by the way, resulted in language in the Constitution which legitimized slavery as a national institution. What does a strict constructionist do about that? Feel free to plead ignorance.

(I don’t think you are trying to imply that I’m a pro-slavery racist because I support the freedoms of speech and assembly, so you must not be talking about what is first coming to mind. ;))

I’m not implying anything; I’m coming right out and expressing confusion as to your association of freedom of speech and assembly–and only freedom of speech and assembly, apparently–in some nebulous way with the jurisprudential philosophy of constructionism. Since you invoked that philosophy, I took the opportunity to ask you some questions about what seem to me to be inherent problems with the constructionist view. I’m sincerely sorry you couldn’t provide me with more insight.

And I’m sorry, too, that I’ve been a bit condescending in this thread. It gets frustrating to find one’s self back at the beginning after a lengthy exchange, and I’m at a loss as to what I can say that will effect an amicable resolution. Read the books I suggested; they’ll give you a good background to the limitations of freedom in a democratic society.

[Gadarene]

Drunk on the sweet wine of sarcasm, I made the following statement:

And yet caps on political contributions are legitimately unconstitutional. Interesting.

That should, of course, read “And yet caps on political contributions are legitimately constitutional.”

At least I caught it before anyone else.

[pantom]

Two cents time…
Prior to '74, politicians didn’t have to spend nearly the amount of time they do now fund raising. No one spent any time thinking about the distinction between and trying to get around the limitations on hard money vs soft money, because there was no such distinction to make. And if Big Corporation A gave you money, this could be counterbalanced by Big Corporation B or Big Union C. And it was all public. Senator Jackson from Washington was known as the Senator from Boeing, and everyone knew it. And if Boeing wanted to aggressively pursue their interests in Washington, and still does, there is absolutely, positively nothing wrong with that. The unions check the corporations who check the environmentalists and on and on…

Which is precisely what the Founders had in mind when they designed a system of checks and balances. Freedom isn’t supposed to be convenient or even fair. It’s supposed to be a drag 'em out contest between different factions which, when the day is done, produces a compromise that no one may be happy with but that everyone can live with. But you can’t get to that end without allowing the bloodletting before the compromise to be without restraint. (figuratively speaking, of course.)

[Spiritus_Mundi]

I realize that my own points may be easily ignored, but did you just skip entirely over Spiritus’s cogent analysis earlier in the thread?

Thanks for the compliment, Gadarene, but I fear I am destined to remain on teh sidelines for this one. jm seems more willing to flounder in the deep waters of your constitutional acumen rather than frollicing in the shallow pool of my own political musings.

From my perspective, that seems just one more error in judgment on his part.

[Gadarene]

Discovered another error in one of my posts. When talking about constructionism, I made reference to the Fourteenth, Fifteenth, and Sixteenth Amendments. I later talked about these as being the Reconstruction Amendments. In fact, of course, the Reconstruction Amendments are the Thirteenth (end of slavery), Fourteenth (due process extended to the states), and Fifteenth (voting rights for citizens). The Sixteenth Amendment doesn’t enter into it. Sorry 'bout that.
Oh, and Spiritus, thank you for the compliment.