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The Supreme Court: On the Other Hand…

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I want to draw attention to Glenn Greenwald’s recent discussion of the Supreme Court’s pro-bribery decision. Kevin Drum gives him a good rebuttal. These two posts demonstrate the complexity of this issue and how knee-jerk embraces or denials of the Supreme Court’s decision are  vast oversimplifications. I admit I, too,regarded the decision initially with horror, though like Mr. Greenwald I noted that bribery in our polity is so bad it could not get much worse. However, I also swept aside the substantial first-amendment issues implied in this case, casually remarking “Money is not speech” or “Corporations aren’t individuals”.

Mr. Greenwald raises some difficult challenges to those once-seeming platitudes. Isn’t spending money to publicize a message, after all, a form of “speech”? Did the Founding Fathers intend freedom of speech to only cover verbal communication? But then they have that “freedom of the press” too! What if you buy a printing press and use it to disseminate your message? That’s speech, right? And what if you use your press to irrationally support one candidate or one ideology (like a certain network we know)? Even that should be protected under the First Amendment.

Greenwald:

Anyone who believes that [“money isn’t speech”] would have to say that there’s no First Amendment problem with any law that restricts the spending of money for political purposes, such as:”It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;” or

“It shall be illegal for anyone to spend money advocating Constitutional rights for accused terrorists; all citizens shall still be free to express their views on such matters, provided no money is spent”; or

“It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent.”

Anyone who actually believes that “money is not speech” would have to believe that such laws are necessarily permitted by the First Amendment (since they merely restrict the expenditure of money, which is not speech).

Do you actually believe that? I don’t even find that argument sufficiently coherent to warrant much discussion.

Ouch.

This highlights the dangers inherent in trying to limit monetary political support. The potential for misuse is enormous. That said, corporate influence on campaigns and governance is probably the single biggest disease affecting our polity. If this decision doesn’t exacerbate the problem, it undoubtedly legitimizes it.

Citizens United v. FEC is a tremendously difficult case. Corporations must have constitutional protection; certainly from unwarranted search or seizure, and just as certainly the right to advertise. Blackwater, a private mercenary company vigorously exercises its right to bear arms. To what extent can these rights be abridged to achieve “good results”? The Supreme Court cites “compelling state interest”, and it is up for debate whether political contributions constitute such.

With regard to campaign finance, I definitely think the solution – or at least a solution – is transparency. We must have detailed records as to who takes money from whom, publicly displayed and open to scrutiny. OpenSecrets does a great job of this, but such organizations are tragically few. Beyond that, I think a return to public financing with strict limits on campaign length would be a great idea. It seems to be working in Britain, anyway. And given the length and cost of a presidential campaign (1.5 years and $680 million as of 2008 and growing), I think some steady rules on this issue would be nice.

This, of course, would not prevent a large financier from investing in some television network and using it to pump out propaganda for his chosen candidate, nor should it. That will be another difficult battle. For now, it seems clear that some restrictions on how long the campaign season lasts and how much money each candidate can spend are well in order.

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Written by pavanvan

January 24, 2010 at 11:26 am

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