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Free speech and political spending: A return to the town meeting metaphor (part one)

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April 30, 2012 — Washington, D.C.

A few weeks back, I went to a fantastic forum on the state of money in politics hosted by the House Democrats. (Here’s a blog post I wrote about the event for my job).

There were a few interesting comments by the House members in attendance, like Minority Leader Nancy Pelosi calling for the passage of the DISCLOSE Act and a constitutional amendment overturning Citizens United and campaign finance champion Rep. Chris Van Hollen rightly panning Anthony Kennedy for his notoriously clueless decision in the same case. Citizens United, said Van Hollen, “could only be made by people that had no clue how the American political system works in the 20th and 21st centuries”.

The intellectual interest for me, though, came when the experts testified: Norm Ornstein from the (conservative) American Enterprise Institute; Paul Ryan of the Campaign Legal Center; Zephyr Teachout, a law professor from Fordham University (disclosure: Teachout is on the board of directors for my employer, Public Campaign Action Fund); and Monica Youn of the Brennan Center for Justice. There was far too much thought-provoking testimony to document here, but I’ll lay out a few choice tidbits and talk about the classic town meeting free speech metaphor that struck me as a desperately needed addition to discourse around the First Amendment.


The gist of the testimony was that our current method of financing campaigns is already highly corrupting and will almost certainly get much worse without significant reform as corporations, wealthy individuals, and others adjust to the new legal possibilities provided by the Supreme Court in recent years in cases like Citizens United v. FEC and v. FEC.

At the forum, Teachout cited a colleague as saying that the Court’s conservative majority “went and got drunk on the First Amendment”. The Court’s current jurisprudence is an outgrowth of its landmark ruling in 1976, Buckley v. Valeo, which held that “money is speech”, or, more precisely, that political spending and donations are afforded First Amendment protection.

As the American Prospect wrote, “Four decades of decisions have allowed the rich and powerful to transform free speech—our most important tool of bottom-up self-government—into a means of top-down social control.” In a way this isn’t terribly surprising, as Teachout noted that well-functioning representative democracy is far from the default state of human society. Throughout history, something more akin to oligarchy is far more common as elites with [large amounts of money] or other sources of power are able to translate this into an outsize political influence. Viewed in this light, perhaps the slow degradation of the integrity of American elections since post-Watergate reforms should be seen more as a regression to the mean that takes continued energy to prevent.

Norm Ornstein issued one prediction that showed how self-defeating or simply clueless the Court’s view of the First Amendment is. With the rise of super PACs, to which campaigns are effectively outsourcing their attacks, he predicted that in the weeks before the election, TV viewers at home in swing states will see virtually nothing but “vicious attack ads”. Not only is this a miserable state of affairs, it also highlights how “speech” is in many regards a zero-sum affair. Ornstein suggested that many of the highest funded super PACs might engage in “roadblocking” — monopolizing the best ad space and making it impossible for others to speak in that time.

Ryan also brought out a way in which the Court’s conception of the value of speech doesn’t accord with reality. He noted that corporations and super PACs “can dissolve at the drop of a hat”. This produces a true breakdown of the money is speech argument. The impermanence of incorporated entities means that people will not have the benefit of knowledge about a “speaker” to provide context for what is said. The name “Americans for a Strong Tomorrow” doesn’t give us much information. What’s worse, with corporations free to dissolve and reform under a different name with virtually no downside, they can engage in untrue attacks without any fear of reputational damage. A true speaker will be held to account if she slanders someone or repeatedly makes baseless allegations. A human speaker obviously cannot dissolve herself and reform under a new name to block  anyone from using her past lies to form their interpretation of her current claims.

Tomorrow, I’ll follow up on these comments and write about the town meeting as a model for free speech and how this can improve our discourse.



Written by rethoughtblog

May 1, 2012 at 12:21 am