Speech and Spending

I had a dinner conversation last night with my Massachusetts mother-in-law.  She is pretty interesting to talk to because she is a pretty good bellwether for Democratic talking points on most issues.  She was opposed to the recent Supreme Court speech decision removing limits on third party advertising near an election  (I think she misunderstood the scope of that decision but that is not surprising given the shoddy reporting on it, up to and including Obama getting it wrong in his State of the Union).   She advocated strict campaign spending restrictions (both in terms of amount of money and length of the campaign season) combined with term limits.

We could have gone a lot of places with the discussion, but we ended up (before we terminated the conversation in the name of civility) discussing whether restrictions on money were equivalent to restrictions on speech.  She of course said they were not, and said under strict monetary controls I still had freedom of speech - weren't we still talking in the car?

It is hard to reach common ground when one person is arguing from a strict rights-based point of view while the other is arguing from a utilitarian point-of-view.   Essentially she knows in her heart that she is restricting speech, but wishes to do so to reach a better outcome.  I made a couple of utilitarian arguments, including:

  • I pointed out that when the stakes of government are so high, money and influence never goes away.  Just as in any economy, when you ban money, a barter economy arises.  So if we ban large campaign spending, then the quid pro quo becomes grass roots efforts and voter mobilization.  Groups like the UAW become more powerful (we are seeing that already).  They are trading their member's votes for influence.  Connected companies like GE are doing the same thing, trading their support for legislation that is generally hostile to commerce for specific clauses in said legislation that exempts GE and/or makes the laws even more punishing on their competition.  The problem with all this activity is it is hard to see and totally unaccountable -- at least with advertisements we see people out in the open with their agendas.
  • I observed that it was smart to add term limits to her plan, as otherwise her recommendations would be the great incumbent protection act.  But by limiting money, immediate advantage is given to people who already have name recognition and celebrity.  Think we have too many actors and athletes running for office?   Well be prepared for a flood with stricter campaign finance restrictions

However, I tend to shy away form utilitarian arguments.  The best arguments I have against the notion that money can be restricted without restricting speech are:

  • Her comment that I still had freedom of speech (ie I am talking freely in the car) with strict campaign cash restrictions ignores the actual wording of the First Amendment, which reads "Congress shall make no law ... abridging the freedom of speech."  Her test, which is "Am I still able to speak in some forum even if I can't in others" is not a valid test for conformance to the First Amendment.  Otherwise, speech could be restricted at will as long as there was some narrow safe harbor where one could express his opinion.    The better test is whether the proposed law, ie a restriction on how much and when a person can spend money advertising his or her opinions, abridges or reduces freedom of speech.  And I think it is hard to deny that everyone has less freedom, in the form of fewer options and reduced scope, after such legislation.
  • One interesting test is to broaden the question -- Does restricting spending on something (in this case speech) constitute a restriction on one's underlying right to the activity (e.g. speaking freely).  I was tempted to ask her (she is a strong and vocal abortion rights supporter) whether she would therefore consider the right to abortion to be untouched by Congress if a law were passed to limit each person's spending on abortion to $5 a year.   Abortion would still be entirely legal  -- all government would be doing is putting on some spending restrictions.   Obviously one's scope and options to get an abortion would be limited -- only those who happened to have a doctor in the family could perhaps get an abortion -- just as under her speech plan only those who had a large newspaper in the family could speak fully and freely before an election.
  • Roy

    Glad you could have a civil conversation when the magnitude of the stakes combine with the closeness of the relation to make such very, very difficult.

    I've long appreciated your "broaden the question" technique. Beautiful use regarding abortion. Along that line I've posed a related question.

    I've stated in conversation with pro aborts that I've several assumptions controlling my interaction. First, I assume they understand that we don't debate what to do when not causing the child's death means physical death to both mother and child. In such a (very rare) situation, we both make the pro life choice. Second, I assume they do not endorse murder. That is, they do not think it a wise private much less public policy to legalize killing other people for whatever personal reasons. Thus, if we were to finally wrestle thru to the bottom line, their support of abortion has to include the premise that whatever is killed is not a person. So, how do they support that premise? No scientific evidence exists which supports a DNA change or nature of being change via birth (evident especially since everybody knows that everybody knows about premies and about c-sections and similar). Their only support has to be law. Which leads to the broadening of the question. Since law, not science, determined personhood, why not change the law to better reflect their concerns? What hinders our extending abortion legality from .5 microseconds before birth to, say, 10 seconds before reaching 18 yrs and voting age? Certainly that would allow a much longer period for a far more accurate determination of whether or not the not-yet-person would prove a burden to self or society.

  • http://evilredscandi.blogspot.com Evil Red Scandi

    From a utilitarian standpoint, just look at how effective the ban was while it was in place. As you pointed out before (at least I think it was you; the blogosphere starts to bleed together after awhile), the only thing it accomplished was laundering the money through various PACs and other groups.

    Trying to restrict political advertising budgets in any way whatsoever is like trying to block a river by standing in it. The money just flows around the restriction.

  • Dr. T

    I find it impossible to argue logically with most liberals (especially when they are in-laws). The abortion cost-restriction analogy was great, but it will not change the opinions of liberals regarding restrictions on our rights.

    After decades of arguing with liberals about rights, I have concluded that most liberals like the Bill of Rights only when Republicans control the federal government. When Democrats hold power, liberals prefer that all rights be downgraded to government-controlled privileges. They seem oblivious to the fact that this would backfire once they lose the majority.

  • http://www.plumbbobbblog.com philwynk

    Dr. T wrote:

    I have concluded that most liberals like the Bill of Rights only when Republicans control the federal government.

    This is not only true of the Bill of Rights, but of all moral principles. Leftists use principles like a drunken brawler uses a beer bottle in a fight. If there's one handy, they'll grab it and bash someone with it. As soon as they're done using it, they'll toss it away. They do not believe in the principles, they simply use them as weapons when it's convenient.

    I suspect that they can do this because they are narcissists, and have no principles apart from personal power and prestige.

  • IgotBupkis

    > One interesting test is to broaden the question

    Nice touch. I like that one.

  • perlhaqr

    I would have loved to heard about the reaction to the abortion thesis.

  • IgotBupkis

    > After decades of arguing with liberals.

    There's your problem right there in a single brief sentence.

    :D

    The reason to argue with liberals are many, but have nothing to do with ever changing the opinion of the liberal:

    a) To validate/reexamine your own position on the matter in question, just to make sure it is still fully valid within the context of changing information. Perhaps there is something which you have since become aware of which would change your attitude in some aspect, but you haven't put the two together in your head prior to this. By hashing it out, you do a fact-check against current data.

    b) So keep the argument honest for bystanders/fence sitters/"impressionable types". You'll never convince the libtard, but, if you don't have the discussion, then any onlookers have no context into which to place the libtard fantasies, and may be swayed -- especially if they lack experience with libtard tendencies to make things up, if not outright lie, about the facts of the case.

    c) Mental exercise. Just as one's body will atrophy if one does not perform acts which use it, so, too, does the mind atrophy whenever it doesn't exercise its reasoning/debate faculties.

    But never, ever argue with a libtard with the expectation that you will "convince" them of anything.

    This is DOOMED to failure.

    Paradoxically, even if you succeed in winning them around, it is still DOOMED to failure.

    This is due to a mechanism in libtard brains which I call the "Midnight Reset Button" (it ties to the utter and complete lack of wisdom -- the ability to learn by experience -- common to all libtards).

    Consider:
    a) Suppose you meet a libtard who appears reasonable. They are open and honest and fully willing to discuss, without excessive histrionics, any point of view they espouse...
    b) Now, pick a topic dear to them, which you know they believe in but which you also know to be clearly wrongheaded, even if well-meaning.
    c) Start with their supposition, and take them, step by logical step through from their supposition, getting acquiescence at each stage: "Yeah, that follows, uh-huh...". Show by such reasoning that the net affect of their supposition is the end result will be the exact opposite of what they purportedly support or believe in.
    d) OK, you've won. Now what? Wait. You'll hear something like... "Hmmm. I'm going to have to think about that.", and you'll go your own separate ways.
    e) Now, a week passes, seek them out. Bring the subject of their supposition up again, subtly. You will hear them espousing the exact same notions of their original supposition unchanged, unaltered, as though the entire reasoning process you took them through in "c" never happened!

    So what happened? The Midnight Reset Button® is what happened. At some point in the ensuing day or so, after they dropped off to sleep, their tiny widdle libtard brain started to process the new information. It carefully examined the new information in relation to Officially Accepted Liberal Dogma®, found it to be unacceptably running counter to it, and purged the new information without adding it to the libtard's store of knowledge. BAM, conflict ended, Liberal Twitticism remains intact.

    With practice, you can even watch this thing start to kick in as you have the discussion with them. In many cases, if they learn you're "dangerous" to their precious Officially Accepted Liberal Dogma®, they will preemptively act to terminate, redirect, or otherwise alter the conversation to avoid the necessary mental CPU cycles required to purge the non-agreeing data.

    You think I'm being facetious? Only in a sense. This process does exist and it really does act to prevent true libtards from actually learning anything new. ;)

  • http://www.pugsofwar.blogspot.com BlogDog

    Just one thing: Bellwether, not bell weather. It's a goat that leads.

  • http://evilredscandi.blogspot.com Evil Red Scandi

    @Igotbupkis - There's an awful lot of truth to the Midnight Reset Button® thing :-)... but it applies to many conservatives as well.

  • http://lorenzo-thinkingoutaloud.blogspot.com/ Lorenzo (from downunder)

    What your mother-in-law may not realise (because the report was so shoddy) is that she was arguing against all nine Supreme Court justices, as Glenn Greenwald points out:
    Most commenters (though not all) grounded their opposition to the Supreme Court's ruling in two rather absolute principles: (1) corporations are not "persons" and thus have no First Amendment/free speech rights and/or (2) money is not speech, and therefore restrictions on how money is spent cannot violate the First Amendment's free speech clause. What makes those arguments so bizarre is that none of the 9 Justices -- including the 4 dissenting Justices -- argued either of those propositions or believe them. To the contrary, all 9 Justices -- including the 4 in dissent -- agreed that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections.

  • http://lorenzo-thinkingoutaloud.blogspot.com/ Lorenzo (from downunder)

    What your mother-in-law may not realise (because the report was so shoddy) is that she was arguing against all nine Supreme Court justices, as Glenn Greenwald points out:
    Most commenters (though not all) grounded their opposition to the Supreme Court's ruling in two rather absolute principles: (1) corporations are not "persons" and thus have no First Amendment/free speech rights and/or (2) money is not speech, and therefore restrictions on how money is spent cannot violate the First Amendment's free speech clause. What makes those arguments so bizarre is that none of the 9 Justices -- including the 4 dissenting Justices -- argued either of those propositions or believe them. To the contrary, all 9 Justices -- including the 4 in dissent -- agreed that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections.

  • http://lorenzo-thinkingoutaloud.blogspot.com/ Lorenzo (from downunder)

    What your mother-in-law may not realise (because the report was so shoddy) is that she was arguing against all nine Supreme Court justices, as Glenn Greenwald points out:
    Most commenters (though not all) grounded their opposition to the Supreme Court's ruling in two rather absolute principles: (1) corporations are not "persons" and thus have no First Amendment/free speech rights and/or (2) money is not speech, and therefore restrictions on how money is spent cannot violate the First Amendment's free speech clause. What makes those arguments so bizarre is that none of the 9 Justices -- including the 4 dissenting Justices -- argued either of those propositions or believe them. To the contrary, all 9 Justices -- including the 4 in dissent -- agreed that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections.

  • http://lorenzo-thinkingoutaloud.blogspot.com/ Lorenzo (from downunder)

    Sorry about the double commenting, I was trying to fix the formatting. Everything after the colon is a quote.

  • Stuhlmann

    If giving money = free speech, then do not law prohibiting bribery also violate the 1st Amendment? If you are discussing the cleanliness of your restaurant's kitchen with a health inspector, what better way to express your opinion that you meet all applicable state and local requirements than to give the guy $100, or whatever the going rate is. To me there is no moral or practical difference in bribing a public employee and giving a significant donation to a campaigning politician. In both cases the guy/gal handing out the cash is trying to get some special treatment at the expense of the general public. If giving money is just free speech and not buying influence, then why do corporations often give money to both candidates/parties, with more going to their preferred candidate/party?

  • mahtso

    I believe the SC Opinion was the right one. But for those who do not, how do you reconcile allowing some corporations (e.g., Foxnews; NY Times) the right to spend money "speaking" on the issues, while denying most others. Picking up on the abortion analogy, prior to the ruling it was: If you work for the Times, Fox, or other government approved corporation you may spend your money on an abortion, but if you work for another, non-approved corportation you may not.

    Stuhlmann, I don't think your comment is applicable to a discussion of the Citizen's case, because the Court upheld the ban on direct contributions.

  • http://evilredscandi.blogspot.com Evil Red Scandi

    @Stuhlmann - The health inspector argument doesn't fly because you're educing them into a conspiracy to engage in fraudulent behavior. Free speech has never been an excuse against criminal activity. For example, if you threatened to murder the health inspector and their family if they didn't pass your restaurant, it wouldn't be protected under the First Amendment.

  • http://evilredscandi.blogspot.com Evil Red Scandi

    @Stuhlmann - As for the rest of your paragraph, you're making the case for libertarianism rather than the case against free speech. Immediate, direct cash transfers aside there will always be ways to buy favors from people with power. The only possible check against this is to absolutely minimize the power these people have. It's just like the analogy I used for corporate spending in campaigns - trying to stop bribery in government is like trying to stop a river by standing in it. There's way too much pressure and way too many ways around whatever impediments you put in place. Special interest lawyers have always been and will always be 20 steps ahead of the regulators and legislators... and would be so even if they weren't buying off the regulators and legislators in the first place.

    As PJ O'Rourke said: When legislatures control buying and selling, the first thing to be bought and sold are legislators [and you can substitute regulators just as easily].

  • IgotBupkis

    > but it applies to many conservatives as well.

    Not to anywhere near the degree for liberals. There are a few issues you might get a conservative stuck on, but you can eventually get them off them. I recommend you do not hold your breath waiting for the liberal to see cause to change their viewpoint.

  • Pat Moffitt

    The real issues are paradox, dilemma and perverse consequences.There is no position that can fit all situations within a complex system-- fine tune a system on the micro scale and it can produce outcomes contrary to the intent on the macro scale. (See Schelling and Tipping theory)

    In complex systems it is generally best to keep tweaking the system rather than believe any one single element can insure long term control. Campaign finance reform is just a way not to deal with the more important voting paradox shown by Arrow's Impossibility Theorem. We haven't even found a way to make voting display ranked preferences. Campaign finance reform seems minor by comparison.

    And were we able to prove the correctness of any one position we would still be faced with Wm Blake"s paradox "You cannot have Liberty in this world without what you call Moral Virtue, and you cannot have Moral Virtue without the slavery of that half of the human race who hate what you call Moral Virtue."

  • http://evilredscandi.blogspot.com Evil Red Scandi

    @IgotBubpkis: Not to anywhere near the degree for liberals. There are a few issues you might get a conservative stuck on, but you can eventually get them off them.

    True, but if I leave that bit out the conservatives start getting all cocky. And there's a joke in there about if you can eventually get them off, they can't too conservative, but I won't go th.... oops I guess I did.

  • http://evilredscandi.blogspot.com Evil Red Scandi

    @Pat Moffitt: And were we able to prove the correctness of any one position we would still be faced with Wm Blake”s paradox “You cannot have Liberty in this world without what you call Moral Virtue, and you cannot have Moral Virtue without the slavery of that half of the human race who hate what you call Moral Virtue.”

    Thus, the less people stick their nose into other people's Moral Virtue, the better off everyone is... Sadly both liberals and conservatives have lots off issues with that. If only we could show them the Moral Virtue of not sticking their nose into other people's ... ah, damn it.

  • Stuhlmann

    Evil Red Scandi

    You are right that bribing a health inspector is conspiring with him to commit fraud, which is criminal activity. But this fraud/conspiracy is only criminal behavior because laws were passed making it so. Making a significant campaign contribution to a legislator is also conspiring to commit fraud. That legislator is duty bound to represent the interests of his constituents, not the interests of the one making the contribution. I contend that when the legislator places the interests of his contributor(s) above those of his constituents, he harms the public welfare at least as much as that health inspector. The only difference is that legislatures are reluctant to criminalize their own instances of fraud/conspiracy.

  • Pat Moffitt

    Evil Red Scandi
    Perhaps the greatest freedom -is the right to be left alone.

    However with reference to this subject- Arrow's Impossibility Theorem trumps campaign spending as ground zero for a voting process's ability to represent the "will" of the people. Other than that I agree with your simple solution - limit the power of government- limit the impact of corruption. This also limits the impacts of the "voting paradox."