The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.
The right position for the Court is that McCain-Feingold, and all other campgain finance regulation, constitutes unconstitutional limitation on free speech. This means reversing the Court's 1976 Buckley v. Valeo decision, which held that government limits on campaign spending were unconstitutional but limits on contributions were not.
This distinction is meaningless. If it is OK for a millionaire to spend his own money promoting his own campaign, why can he not give that money to somone else, who might be a more effective adovocate for that millionare's views, so that this other person can run for office?
More broadly, campaign finance regulation is thought control: it takes a position on whether money should influence political outcomes. Whether or not one agrees, this is only one possible view, and freedom of speech is meant to prevent government from promoting or discouraging particular points of view.
It would be a brave step for Court to reverse Buckley, but it is the right thing to do.
Addendum: A nice youtube video from Cato on this issue.
18 comments:
If only Miron had the courage to ask for what conservatives like him really want: one dollar, one vote. Then he'd have the restored plutocracy to its throne.
In the mean time, he will settle for a close substitute based on the fallacy that money=speech. He wants to legalize bribery of representatives and call that free speech.
Representatives are NOT supposed to vote as their biggest contributors want. They are supposed to represent ALL their constituents. Enormous corporate campaigning and contributions subvert this purpose, and it is legitimate to protect the purpose by regulating them.
And of course Miron misses the forest for the trees: the combination of freedom and enormous concentrations of wealth are a government project. Legal protections for wealth by laws against theft and creation of corporations create conditions where freedom can be abused to subvert the benefits of government. Without those protections, we'd be back to feudalism.
I appreciate your concern about buying a congressperson, Mike, but how does that apply to a decision like Buckley v. Valeo? If spending limits are unconstitutional, how can contribution limits be so? That is logic that I've never understood.
That decision has served to guarantee that ordinary people (read "unconnected, non-millionaires,") have severe limitations on running for office. And if you are not established with a major party apparatus, you have no chance.
Critics of opening contribution limits tend to invoke the greedy corporation as a reasonable defense. I guess so. Corporations, greedy or otherwise, already spend considerable amounts in lobbying efforts. It would naive to think that they do not already influence the votes in Congress.
I'm left wondering why we have a law that prevents me, for example, from being bankrolled by a rich friend or relative to give me a fighting chance at a campaign against established parties and all too powerful incumbents.
Isn't the more logical behavior to simply place all of these transactions in the open and let people criticize them where they may? I don't have a problem with a politician being bought by a corporation or a wealthy benefactor if I know that's why they're going to hold certain interests of a higher order. I can then vote against them, perhaps vote instead for a person who receives from corporate or other private interests of which I approve, or, at worst, do not disapprove. This might have the effect of corporations and other large donation sources, like unions, moving their financial campaign supports around more broadly if it was consistently stated and reported upon by interested parties.
Naturally such informed voting is not particularly common in any specific nature, but don't most voters at least casually associate particular parties with particular interests already? Unions with Democrats for example.
I don't think Miron has ever claimed to be a conservative.
I can see an argument for campaign restrictions compatible with libertarianism: elected officials are public employees, and as our employees the public can put all sorts of restrictions on them. That wouldn't justify prohibiting others from campaigning on their behalf, it would just restrict the behavior of the candidate. For those not currently public employees, having violated the rules would serve as a disqualifier for officer.
I recall reading John Lott argue in Freedomnomics (I haven't read the whole book) that there isn't a detectable effect of campaign donations on votes. Politicians have their own ideologies, and even if they're about to retire and don't have to run again they vote accordingly. He theorizes that people donate money to a candidate for the same reason they vote for them (this jibes with the finding in Freakonomics that self-financed candidates do badly because money is only a proxy for support rather than a major factor in electoral success). Perhaps for small amounts, but if we accept Bryan Caplan's theory of "rational irrationality" then as costs rise (as they do with donations) more self-interested rational behavior will predominate.
Mike, I don't think the argument is quite that money=speech. I believe some campaign laws prohibit media mentioning candidates names during some data range unless they provide balance. So it is actually the government which is claiming that speech=money and regulating the former using a justification previously limited to the latter. If the government declared some view unfundable (say, that the U.S government is guilty of war crimes) and said you could not spend money promoting it I think most people would regard that as a restriction on freedom of speech/press.
Cato had a video on this "Hilary: The Movie" case and the wider implications. I'm not especially familiar with the details, so feel free to fill some in or correct their inaccuracies.
http://www.cato-at-liberty.org/2009/08/18/citizens-united-and-false-consciousness/
Representatives are NOT supposed to vote as their biggest contributors want. They are supposed to represent ALL their constituents.
Didn't John Jay say that the country should be run by those who own it? I guess that was back in the feudal era! I think there are many liberals who would claim that a representative should be willing to buck their constituents in order to do the right thing.
Continued from above, since there appear to be length restrictions.
You seem to be promoting the theory Will Wilkinson has called the Inequality Road to Serfdom. My impression is that the Dems have managed to raise quite a bit of money from rich people during this rising inequality (Slate coined the term "Bushenfreude" for it). Perhaps this just means they are capturing that party as well to be a bunch of corporate lackeys (to the extent they weren't already), but if I was going to use my fantastic wealth for political advantage I'd want something like the feudal era where I was exempt from taxes rather than paying more not merely as a flat percentage but as a higher share of income. So a pretty pathetic performance that doesn't seem much to worry about from a progressive's perspective. Its really the spending of money in the U.S that is less progressive than European countries (whose taxation is more regressive in terms of income, relying on VAT).
For all the foolish and frivolous arguments above, the issue is the corruption of an important institution: democracy. Libertarians generally despise it because it conflicts with their ideas of property as liberty and the righteousness of those with the most wealth. The rest of us appreciate democracy for a wide range of virtues, not least the fact that we must choose among many conflicting liberties.
Folks like Will Wilkinson are propagandists hired explicitly to deny their own nature propping up the inequality of the plutocracy. "The Inequality Road to Serfdom" is a classic big lie technique, in this case a simple psychological projection. Hayek's "Road To Serfdom" is now widely recognized as pathetic, extremist and hysterical, and Wilkinson wants to tarbrush liberalism as being a mirror reflection. The thing that makes this a big lie is that libertarians frequently employ public choice and regulatory capture theory in their own favor, and now Wilkinson claims that those are liberal fallacies.
Mike said, "...the issue is the corruption of an important institution: democracy."
Are you saying the Buckley v. Valeo or McCain-Feingold or both are somehow protecting us against the corruption of elected officials?
What is the argument against open campaign contributions if all of them are made public? Is it that American voters are too stupid to pay attention and therefore must be protected?
Money has simply been moved to phony support groups that run ads as if they were part of the campaigns they support. I'm not sure how or why this is good for democracy.
I don't want to set up a straw man, but I'm trying to think of an alternative to campaign financing that would give the appearance of being incorruptible. Would that be "public" financing? With a government agency controlling the disbursement of funds to candidates? Who determines who should receive funds? Wouldn't this just reinforce the current incumbency/power dynamic?
Its possible that a lot of public choice theory is wrong (Caplan & Wittman seem to think so). Its also possible that campaign donations are not the mechanism by which it occurs. "Regulatory capture", for instance, involves regulators who are supposed to be independent of the political process. What evidence should we look to for competing takes on public choice?
In ancient Athens it was believed harmful for some speakers to have such rhetorical talents that they could easily convince crowds, so lotteries were used in elections. In our own time we laud politicians who are "Great Communicators". The case of "Hilary the Movie" seems to invoke the prior standard of persuasive speech being harmful. Do you believe it is corrupting for democracy?
Campaign contributions: whether open, public, or private can constitute bribery. As the NUMBER of contributions grows and the significance of any few contributions diminishes, the overall contributions become more representative of a population rather than a few donors. It is corrupt for an official to represent an astroturf group instead of a populist group.
Is an "astroturf" group just one you approve of vs disapprove of? If lots of people give money to a political pressure group (NRA, ACLU, whatever) and that group aggregates their money into a large donation, is that okay? Was Gene McCarthy corrupt because his campaign was so dependent on a few large donors?
I'd like to reiterate my question about the corrupting effect of persuasive rhetoric. That is basically the idea behind this "Citizens United" case.
If you want to order donations in terms of corruption, here's what I'd suggest from most corrupt to least corrupt for large donations:
Individuals or single firms Most corrupt
Industry organizations
Unions, political pressure groups, bundled donations
Many separate small donations by individuals. Least corrupt
Ideally, donations should be proxies for opinion of the electorate. When this mechanism is gamed, or when it is used merely as a channel for bribery, there is corruption.
So was Gene McCarthy an especially corrupt candidate?
I will ask again, since it is central to the "Citizens United" issue, is persuasive rhetoric corrupting, as the Athenians believed?
One advantage I think donations have over voting in being representative (hold your laughter!) is that it allows range-voting. What if there were no limits on contributions, but they were taxed based on how wealthy the donor was? This would permit "intensity" of support to be factored in, rather than a binary vote, while correcting for the advantage the rich have (not that I'm endorsing equality, I'd actually like to bring back literacy tests to disenfranchise the unintelligent and poorly informed, its just a hypothetical). A utilitirian would say that in the case of Nazis confiscating Jewish property or Idi Amin kicking out asians, if the minority could effectively bribe the majority that would be the more efficient outcome than a simple majoritarian (no intensity considered) total property seizure. Since people care differently about different aspects of policy, it would be even better to unbundle them somehow. Electing officials according to responsibility, as in many local elections?
Via Eric Crampton, James Buchanan discussing intensity overlooked by majoritarian democracy.
TGGP, perhaps you didn't read to the bottom where Crampton asks the important question:
"Why would logrolling not ensure the satisfaction of mean rather than median voter preferences across all issues?"
In case you don't understand his criticism of Buchanon, we do NOT have a majoritarian democracy: we have a representative democracy. Representatives are elected by interest coalitions. Logrolling is vote trading to maximize satisfaction among interest coalitions, and it works well to prevent the oppression you worry about. That's why legislatures (which are representative) have mostly supported gay marriage, and initiatives (which are directly democratic) have rejected gay marriage. Direct democracy doesn't give opportunity for logrolling.
I didn't take it as a criticism of Buchanan. I thought the implicit normative standard was satisfying mean preferences. Majoritarian (or direct) democracy satisfies median preferences. Crampton's question seems to assume that logrolling does not actually satisfy mean preferences. Otherwise he could have written "Does logrolling ensure" or "Why does logrolling ensure".
Also, do you think persuasive rhetoric corrupts democracy?
Essentially, Crampton is pointing out where Buchanan's argument is incomplete: I view that as a criticism. Everybody informed knows about logrolling, and how minorities can use it to signal the intensity of their issue. So why did Buchanon fail to address it? If anything, by focussing on majoritarian democracy rather than our much more dominant representative democracy, he's making an irrelevant argument.
Buchanan did not fail to address logrolling. He discussed it in his work. I just found that out with a bit of googling.
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