Justice Breyer detached from reality by “good” intentions
Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-to-4 vote the McCain-Feingold law that banned unlimited donations to political parties.
Acknowledging that critics had a point in saying that the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to candidates not tied to special interests.
For the sake of argument, let’s stipulate that making the election process “fairer” and “more democratic” by weakening special interests groups justifies limitations on our freedom of speech. Has McCain-Feingold weakened the special interest groups? If anything, the McCain-Feingold version of campaign finance reform has strengthened special interest 527 organizations, like MoveOn.org, who raise millions of dollars to influence the political process. But since liberals are never required to analyze the results of their actions, Justice Breyer continues to trade on good intentions while he blithely ignores reality.
Archived in: Campaign Finance, Constitution, Free Speech, Liberals, Supreme CourtDecember 4, 2006 at 6:14 pm | Trackback
14 comments
I’ll certainly agree that the birth of 527’s as perverted the underyling goal of “reform,” but I still don’t buy the whole idea that contribution limits per se violate free speech. So do laws against prostitution, which when you think about it, are an apt analogy.
Breyer’s problem is that his position has stimulated arrogance rather than humility in him. He also might not be very smart. Any argument against the influence of “interest groups” would have to include some proof that validates the kind of egalitarianism Breyer favors. These days it’s just assumed to be a desirable thing, a leftover of the various stupidities in the philosophies of The Common Man. Most of it is bullsh**. I’ve listened to Breyer several times. He’s pretty dull, sort of hack too.
He’s John Olver with a law degree.
Wave:
Went to Wickipedia and read Olver’s entries. He represents a “heavily Republican district”? This invites an explanation of what constitutes a heavily Republican district in MA. Anyway, in spite of his admirable creds, the chairmanship of the Congressional Climate Change Committee says more about him. His wife also teaches at Amherst, which says even more.
“but I still don’t buy the whole idea that contribution limits per se violate free speech.”
But doesn’t the rise of 527s prove that money in political campaigns is free speech? MoveOn isn’t out there holding signs on street corners after all. And how else can an organization get its message out and help its candidates without funding them?
I think the real issue is one of paternalism. CFR proponents believe the state needs to protect the unenlightened masses from themselves by limiting political free speech. But nobody is holding a gun to voters heads when they cast their ballots so ultimately, it is their decision to be influenced or not. Freedom comes with corresponding responsibilities.
The Incumbent Protection Act aka CFR was and is about stifling speech by those held in distaste. The MSM has no strictures on how or what they say right up to the opening of the polls.
The advocacy groups(NRA, Right to Life etc.) are muzzled before a primary and the general election. None of the unfavored groups will find common cause with the MSM. News about them is invariably slanted, if reported at all. Notice the cry about the 527’s came about after the conservative causes formed them to counter the media landslide of liberal “thought.”
why Bush signed this is unknowable.
Rhod — OBVIOUSLY, the Wiki entry was written solely by Olver’s staff, yes?? LOLOLOL –
It is a “heavily republican district” insofar as one might exist in MASSACHUSETTS — but really. It encompasses Amherst, Northampton, Pittsifeld and the Lenox/Stockbridge area (referred to by some as “Concord West” and “Westchester North” — get it??) It was represented in Congress for 34 years by Silvio Conte, one of the paradigm Massachusetts Republicans of that era (i.e., “liberal Republican,” when that label wasn’t pejorative).
Pat — your question about 527’s proving that money is free speech is a syllogism. It suggests that money “is free speech” because 527’s were CREATED to let people spend like drunken sailors to fund the messages.
But that presupposes that SCOTUS has sanctioned the profligate spending on partisan activities (okay, it’s suposed to be “issue oriented” — give me a freakin break, okay?!?) as “free speech.”
But we all know that some Constitutional rights are not absolute, and Free Speech is one of them. They all must be weighed against competing interests and rights, and that’s where the “balancing tests” come into play — and I ask you if the unrestrained spending of money by 527’s on the left and right is more, or less, inclined to (a) improve the quality and substance of political discourse among the general citizenry and thus (b) increase the relative informedness of the people who choose the leaders of this country.
I think the question answers itself.
“t suggests that money “is free speech” because 527’s were CREATED to let people spend like drunken sailors to fund the messages.”
Ok. I’m open to your suggestions then about how a group of people can reach a broad audience of people without funding???
“But we all know that some Constitutional rights are not absolute, and Free Speech is one of them.”
Sure, if it’s proven to be harmful like the classic yelling fire in a crowded theater. But who decides what harmful political speech is? Government? Republicans? Democrats? CFR provisions appear to favor incumbents so maybe we let them decide.
Freedom of speech is really aimed at political speech and not the Larry Flynts of the world. It’s a very dangerous thing when the government decides what kinds and methods of political speech are acceptable, and that’s why it says “Congress shall make no law..”
“(a) improve the quality and substance of political discourse among the general citizenry”
Again, by whose definition? Who has the right to decide what “good” political discourse is and what’s to stop them from abusing this power?
“(b) increase the relative informedness of the people who choose the leaders of this country.”
This can be legislated? You aren’t really suggesting that the government be in charge of informing people about the “right things to know”, are you? Bit of a conflict of interest, no?
Let us, for the sake of discussion, assume (and this isn’t that much of a hypothetical) that there are two extraordinarily rich individuals in the U.S. who wish to spend the vast amount of their fortunes (let’s say, oh, A BILLION DOLLARS EACH) to influence the outcome of the next Presidential election. One is a raving moonbat (sort of a Michael Moore/Jim Lampley type - LOL) and the other is a neanderthal troglodyte.
Each funds a 527 and hires the left and right’s respective Wunderkinds of attack advertising and produces an endless stream of television, radio and print advertisements that utter devastatingly effective defamatory (but privileged under NYT v. Sullivan) claims against the opposing candidate.
The resulting election evidences a 33% turnout. Exit polling of those who voted indicates that 75% of people who voted were motivated by negative factors against the other candidate. In follow-up telephone polling, it is determined that 50% of those who did not vote deliberately stayed home either because (a) they were so averse to either candidate or (b) they were “turned off” by the negative campaigning.
As a result of the election outcome, the chasm between the left and right widens, and the vast middle is increasingly disillusioned by both.
Of course this is Orwellian, but has a ring of familiarity, yes?
When I mention “balancing test,” I refer to the weighing of relative significance between the Right of (political) Free Speech and what its impact is on the Constitutional system of elective government. It is indeed a tricky proposition, but from a purely conceptual point of view, we can agree that the former can have a deleterious effect on the latter, can’t we?
Oh shit — the 33% is supposed to say 13%. We’re LUCKY to get 33%.
So a couple of points to your hypothetical.
1. When was the golden era of political discourse? Many of the Founders died embittered men because of their political divisions and nasty campaigning. It’s a bit of wishful nostalgia to assume there was some great era where politics was a civil and tame sport where discourse focused only on the facts and was completely civil.
2. When haven’t wealthy individuals had a huge voice in the political affairs of the country? Weren’t many of the Founders the wealthy, land owning aristocracy of their day? And look at the type of democracy they setup for a second. Senators weren’t directly elected. Women weren’t allowed to vote. The wealthy have always had disproportionate influence and you aren’t going to stop them with CFR because the private sector will always innovate faster than you can legislate.
3. People have the right to vote, but don’t they also have the corresponding right not to? And since when do people have the right not to be annoyed and aren’t they free to decide how to vote on whatever factors they want? You may think that political attack ads are awful, but I might feel they raise an important issue that influence me. Is it your right to stop that?
The bottom line is people are free to be influenced by whatever or whomever they wish. Is anybody forcing you not to hit the mute button on your TV? Although a better informed electorate and more civil public discourse is a nice goal (history proves it doesn’t happen), implementing it is wholly unrealistic and shifts the balance of power from the people who should be able to use any discriminating factors they want to the government.
Freedom comes with responsibility. Legislate the responsibility away and you also kill the freedom.
Man, I love this blog. This is great.
Pat — I’ve said this before (and my fuzzy memnory sez Rhod agreed) –
(and granting that your side of the argument about “restricting speech” –i.e. spending — is a dicey legislative task)
It seems to me that we should not restrict individual spending whatsoever. A candidate can take as much money from any individual as he can get.
All s/he has to do is accurately and timely report it, so that the electorate can understand who’s funding his speech.
I agree. I think restricting political activity through spending limits or speech limits is extremely dangerous.