Interesting, ascenray. I can see from your and BG’s respective sources that many aspects of this question have already been considered by the US courts.
So I’ll concur: a ban, or even a limit, on political commercial advertising might well strictly contravene the First Amendment.
(Of course, I still don’t consider such a ban to abridge free speech, but then again I consider the US to be overly plutocratic already).
How else can we debate this issue? You know as well as I do that none of the rights in the Bill of Rights are guaranteed absolutely. There are lots of controversial areas and gray zones. We have the right to bear arms, but Congress can outlaw assault weapons. We have the right to religious freedom, but not to perform human sacrifices. We have the right to free speech, especially political speech – but there have been periods (e.g., around WWI) when we’ve had laws on the books against “sedition,” which were vigorously enforced and which the Supreme Court, rightly or wrongly, upheld as constitutional. All this is part and parcel of the constitutional system which you seem so zealously dedicated to preserving.
Whenever the courts have to decide whether the Constitution prohibits this or that government action, they apply tests that weigh the government’s public-policy interest or “compelling state interest” against the individual rights. Depending on the kind of right in question, the test might be a “reasonable burden” or a “strict scrutiny” test. As noted above, when it comes to regulating advertising, a “reasonable burden” test is applied. Now, you might want to make a case (the kind you might make when arguing the issue before the Supreme Court) that when the content of the advertising is political, a “strict scrutiny” test applies; and then make a case that banning paid political advertising on TV fails the strict scrutiny test (a separate issue, note, than that of what test should be applied). I would argue it does not fail the strict scrutiny test, and I am prepared to argue the question on those terms. But if you’re just going to ignore the whole process and say, “What you’re proposing is unconstitutional because it involves limits on political speech,” that gets us nowhere. For a constitutional system to work, somebody has to have the power to authoritatively decide what’s constitutional and what isn’t. If not the courts, then who? Congress? The president? The voters in a referendum? I really don’t think you would prefer any of those alternatives.
NPR, PBS, BBC, Pacifica Radio Network, my local community station WMNF 88.5 FM (“Not a member of the Big Brother Broadcasting Network!”) – and pretty much all Internet communication that is not specifically charged for. We pay for equipment and access, of course, but usually not for content (unless it’s porn). Even this board is “noncommercial” in that our membership fees just barely cover the operating costs, I am sure.
Watch out… you know what they say about people who think the First Amendment has limits:
And yes, ascenray, I’m familiar with the Buckley case, and in my view it was wrongly decided. (FWIW, I’m solidly prochoice and I believe Roe v. Wade was wrongly decided.) Even the Supreme Court can err – but its errors are legimately binding on the lower courts. Wherever the established law stands at any given time is, at any rate, what we must take as a starting point if we want to change it. What we have to do is try to bring up the issue again so the court can change its mind. Here’s how it works:
Congress outlaws paid commercial advertising on television.
The FEC sets out to enforce the ban.
A candidate, a political consultant, a TV network, or all three file suit to block enforcement on the grounds the ban is unconstitutional.
The case starts out in lower federal courts, gets to the SC, and the SC makes a decision which is final. Until next time. (The process never stops and it is not intended ever to stop.)
The real problem, of course, is with step 1, not 4. This is an idea that won’t fly in Congress without a lot of grassroots organizing behind it. All I’m trying to say is, that organizing is worth doing because the goal is compelling and worthwhile; and we shouldn’t give up the fight before we start it just because of some discouraging interpretations of constitutional law.
For purposes of debating the issue in this thread, we should stick to questions of:
step 1 – showing why it is a good (or bad) idea; and
step 4 – making what arguments you would make in court for or against the ban’s constitutionality. And when you’re fighting a test case, arguing a point of constitutional law, precedent is important but it’s not the only kind of argument you can make – after all, this is exactly the kind of case where at least one side will be trying to persuade the court to depart from precedent; philosophical arguments, public-policy arguments, historical arguments, all can go in the brief.
That’s how we should be debating this – and if you address it on these terms, Debaser, you and all of us will find it much more fruitful, enlightening and enjoyable than if you just keep repeating over and over, as you have been doing, “Nope, unconstitutional, political speech.”
You’re right, SentientMeat, the baroque 18th-Century political system the Founders left us is hopelessly outdated. A more simply majoritarian system would be better. But that doesn’t mean we can get along without a constitution – it means we need a better constitution. And I think any constitution Americans would find acceptable would have to have a bill of rights or some equivalent – that is, a set of clearly enumerated rights and guarantees which are carved in stone and, while not unchangeable, are set above and beyond the reach of the ordinary legislative and political processes. There’s no such thing in Britain – Parliament, in theory, has absolute and unlimited sovereignty – but Americans will always demand it.
There is a difference between two lawyers having a debate about court precedent and non lawyers having a debate about what’s right.
Let’s say that the SCOTUS decided tomorrow that Campaign Finance Reform is illegal and that the state has no right to regulate it at all in a unanimous decision. Would that mean there is nothing further to debate?
I conceeded to your expertise on the law regarding this issue. I’m sure that courts have made rulings on both sides, and I lack the skills or inclination to go and find some where they agree with me. Like I said, I don’t really care. The first ammendment (like most of the others) is both simple and short. But, it’s far from crystal clear. What is “cruel and unusual” punishment? What is these “arms” that the people have a right to bear?
It seems to me that how the courts have historically looked at these issues should play a part in any debate. But just because you can find a few court decisions one way or the other that hardly means that the issue is settled.
But, under your plan I would be unable to produce a political ad and put it on TV. Certainly my right to make political commercials is being “abridged”. Also, I think it’s clear (and you know don’t seem to be denying) that political ads are “free speech”. Therefore what is happening is your law is “abridging free speech”.
I appreciate what you’ve been saying so far on page three of this thread, and I don’t mean to ignore it. However, I’ve got some work to do and can’t write the posts that a meaningful reply would require.
Quickly, in my defense, however: A lot of me appearing to simply bash repeatedly into a brick wall as you describe is my responses to SenientMeat, not you. He seems to be the only one in the thread to not admit that what we are discussing is abridging free speech. I’ve been trying to get his mind around it, but I don’t see it happening any time soon. Going forward, this should simply be assumed as true, and we can argue the merits of it. Basically: “Sure, it’s abridging free speech, but it’s worth it because…”
Just to make sure we’re all on the same page here… we would also assume it to be true of other laws–slander, obscenity, copyright, public safety, etc.–that limit speech, right? “Sure, banning profanity is abridging free speech, but it’s worth it because…”?
I think what SentientMeat is getting at is that “abridging free speech” means one thing to a layman, and another to the courts. The First Amendment says Congress shall make no law abridging freedom of speech, and yet the laws I mentioned above are still constitutional; therefore one must conclude that the meaning of “abridging” as it’s interpreted in the First Amendment is far narrower than the common meaning.
I suggest we put disscussion of constitutional issues on hold for the time being, and focus instead on discussing the value of the idea on its own merits (step 1, in my analysis above). Let’s address “It’s a good idea” before we get to “but it’s unconstitutional.” If it is unconstitutional, maybe we need to change the Constitution.
I say banning paid political TV ads is a good and necessary thing because:
Under our present system of campaign financing, the rich and the corporations have disproportionate influence (“disproportionate” meaning, out of proportion with their numbers) over our election processes – over who can be taken seriously as a potential candidate to start with, and who gets nominated, and who gets elected. As Lind put it, “Campaign financing is by far the most important mechanism for overclass influence in government. The real two-party system in the United States consists of the party of voters and the tiny but influential party of donors. The donor party in the United States is made up of an extraordinarily small number of citizens. In 1988, according to one study, only 10.2 percent of the American public made a contribution to a candidate, party, or partisan group. . . . The group of large political donors is a still more exclusive club. According to a study by Citizen Action, in the 1989-90 election cycle only 179,677 individual donors gave contributions greater than $200 to a federal candidate, political action committee (PAC), or party: “Thirty-four percent of the money spent by federal candidates was directly contributed by no more than one-tenth of one percent of the voting age population.” One may reasonably doubt that this one tenth of one percent is representative of the electorate or the population at large.”
The above is a Very Bad Thing, in and of itself. It’s plutocracy, not democracy. Elections are the most important – for most of us the only – way we have to make the government serve the will of the people, which is what democracy is all about. And as it stands, the rich have more influence over the rest of us in deciding who will be making important public decisions, and they will naturally favor those who can be counted on to favor the interests of the rich even when those conflict with the interests of the majority. (And it is possible for the interests of the rich to conflict with the interests of the majority. If you dispute that point we’ll need to start a whole new thread just to discuss that.)
Our present system also gives the rich and corporations disproportionate influence over what officials do once they are in office – because once elected they owe their donors a favor, and because they will be needing more favors in the future. There’s always another election coming up. As Lind put it, “Some argue that special-interest expenditures have no significiant influence on public policy. If all of this money is not buying special favors from congressmen and senators, a great many groups and individuals who are otherwise careful with their resources are acting in a highly irrational manner, year after year.”
The above is a Very Bad Thing, for the same reasons given in point 3, but squared and cubed.
Banning paid political ads on television could help to level the political playing field as between those with money and those without. It couldn’t solve the whole problem by itself, but it could help.
Now, if you oppose the proposition (for reasons having nothing to do with the First Amendment), which particular points outlined above to you dispute? Do you, for instance, see some positive value in letting the rich call the shots? If so, please explain.
Sorry, point 4 should read:
“4. The above is a Very Bad Thing, for the same reasons given in point 2, but squared and cubed.”