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.