They can regulate loudness of a loudspeaker because loud sounds cause physical harm and disturb other people, and because they can do it in a content-neutral way.
Limiting money spent on certain political speech doesn’t map onto that. A campaign ad doesn’t cause physical harm (yes, I know, insert joke here). And prohibiting campaign ads isn’t content neutral.
Could the government pass a rule that says no one can spend more than X dollars to place any advertisement for anything within 30 days of an election (the equivalent of preventing a loudspeaker in the park)? Probably not - but that’s something that’s at least content neutral. But could they pass a rule that says corporations can’t spend money to place advertisements for political races within 30 days of an election? Absolutely not - that’s the equivalent of preventing some loudspeakers in the park but not others based on what people’s messages are in the loudspeaker. And that’s verboten.
You can regulate campaign contributions and do it in a content neutral way. It’s easy. In fact, we used to do it: we had campaign contribution limits. You could give to any candidate you wanted, you just couldn’t give them tens of millions of dollars.
For the record, the reason we elect Senators directly instead of through State Legislatures as was directed in the Constitution is because the graft and corruption of doing so was endemic; the bribing (I’m sorry, “contributing”) to individuals and persons in those legislatures was a national scandal, so it was changed. (You have occasionally written about how hard it is to change the Constitution, so you can imagine how flagrant this corruption must have been.)
I am not trying to “prohibit”. I’m trying to “not allow someone to out-shout everyone else and thereby render the democratic process moot.”
We still do. You can’t give an unlimited amount of money to a campaign, or to a political party.
At issue is money you spend yourself. If you want to spent a ton of money telling people something about a candidate, whether the government can restrict you from doing it. That’s what the plaintiff in Citizens United was doing - they had produced a movie that said that Clinton was terrible, and they wanted to run the movie and promote it (that was found to be express advocacy for the election or defeat of a candidate, so it got covered by the then-existing campaign finance rules). They weren’t trying to donate that money to a campaign or party - they wanted to spend it themselves.
But you have to “prohibit” in order to do this. You have to stop people from being able to run those ads, after all.
I am gobsmacked that you would say this. It doesn’t stop people from running ads. It simply stops them from buying every available location and commercial insert to the detriment of other candidates.
When we say “free speech” we have allowed lots of exceptions: libel, copyright, public safety. Freedom of religion isn’t meant to include child beating or polygamy or many other things. The 2nd amendment apparently doesn’t include the right to bazookas or hand grenades. The “unreasonable search and seizure” has been punctured many times, and not just by this administration.
Why the absolutist stance on reigning in campaign “contributions”?
PS: If Monsanto wants to start “The Monsanto News”, I’m all for it.
I didn’t say it stopped them from running ads. Simply that it has to involve “prohibiting.” You have to stop people from running ads above a certain level.
That level isn’t what you describe, either. No candidate or campaign is ever buying so many ads that there are no more ads left to buy. Even in the height of political craziness, there’s still plenty of ad space available - even when Florida was one of the most important swing states, you’d never see an ad break where all the ads were political spots. The intent of campaign spending limits isn’t to address a limited supply - it’s to try to create a situation where a campaign can’t significantly outspend the other campaign.
Because these aren’t contributions. Or rather, if they’re contributions, then every type of political speech is a contribution. You need to find a limiting principle, and there isn’t one on offer.
The issue is that this is the heart of speech that the First Amendment is intended to protect. People sharing their opinion about candidates for public office. It is literally the most political speech there is. If the government is able to restrict someone to spend more than me when talking about a political race, then the government would also be able to restrict people from spending more than me when talking about any other matter of public policy. Why should 350.org get to spend millions of dollars to promote their viewpoints on climate change, when that deprives some random climate-change denier of an equal playing field? Why should the NYT get to have the influence and reach that tens or hundreds of millions of dollars of corporate dollars invested in building a massive distribution infrastructure over the years, when I am getting drowned out by that?
The existence of some exceptions to the rights in the Constitutions doesn’t mean that every floated exception to the rights in the Constitution is valid. The fact that you can’t shout fire falsely in a crowded theater doesn’t mean the government can (or should!) be able to stop you from publishing your opinion on political candidates - the latter speech is a core 1A protection. There isn’t an historical exception you can point to as supporting reason to carve it out.
I don’t see it. If you can’t restrict “press”, you can’t restrict the “press”. As I said earlier, I think the bigger problem would be everyone and their uncle would be opening a “press” division (my previous example, which Gh picked up on, Monsanto).
But we are getting way away from the thread topic, so I’ll stop now. I also agree with Gh’s complaints about the size of “speech” if money is “speech” (and corporations have lots of money).
Senator Ron Wyden proposed a bill that gains on publicly traded assets would be taxed on an annual basis regardless of realization for tax filers with a net worth of more than $1 billion.
Sure, but under your formulation, corporations aren’t the “press” unless they’re allowed to undertake “press” activities. Under current SCOTUS precedent, “press” refers to an activity (press and speech together encompass all forms of expressive communication, with the former referring to printed or other permanent works like newspapers or books or magazines and the latter referring to spoken or broadcast things) - under that formulation, anything government is allowed to do to restrict speech would also allow them to similarly restrict press. Under your interpretation, “press” refers to a class of entities that engage in producing news - not an activity, but the entities that do “news.” So if you don’t let corporations engage in that kind of activity, they’re never “press” in the first place - and therefore never acquire any “press” protections. Thus, no newspapers more elaborate or sizable than what a single natural person can produce.
Money isn’t speech under Citizens United. Rather, the Court held that you couldn’t restrict speech by restricting money. The entire point of the restriction on money was to prevent corporate entities from having too “large” of speech, so the Court treated it as a restriction on speech. If I pass a law that says no individual is allowed to spend any money to promote or advocate abortion rights (for example), the Court will properly treat that law as an effort to censor speech about abortion rights, rather than a financial regulation. They treated the prohibition on corporations speaking about candidates similarly.
I wonder then how they can stop people from publishing the plans to build a nuclear weapon. Oh look, they do!
, the U.S. government actively stops the publication of nuclear weapon plans, primarily through the [Atomic Energy Act of 1946], which automatically classifies "Restricted Data" regarding nuclear weapon design and production.
There are lots of thing you are restricted from “publishing”, so this absolute freedom isn’t really so absolute. I bet someone smart, who knew the law, could figure out a way to separate “money” from “speech” and do it in a way that was Constitutionally able and would inflict as little injury as possible to the concept of free speech.
Because the specific nature of that speech is something the Courts find can be restricted. As to all speakers.
The reason they don’t do that for campaign expenditures is because….well, campaign ads are core political speech. They are literally a person communicating that they believe people should vote for Candidate A instead of Candidate B for X reasons.
The fact that exceptions to free speech exist doesn’t mean that every specific new exception to free speech can be supported. Else there wouldn’t be any free speech anymore.
And that’s why the failure to articulate a limiting principle in campaign speech is so problematic. If the government can stop a corporation from engaging in political speech (prohibiting the distribution of a movie critical of a political candidate), why can they not prohibit all corporations from engaging in political speech (350.org advocating for climate change restrictions, or the NAACP advocating for civil rights protections)?
And yet….they haven’t. As noted upthread, what probably doomed the government’s argument in Citizens United is that the Solicitor General couldn’t advocate a limiting principle that allowed the government to ban corporate spending campaign ads that wouldn’t allow them to ban books about politicians. Because from a constitutional analysis, they’re the same thing - expressions of speech expressing an opinion about a candidate for public office whose creation, publication, and distribution are funded using corporate resources rather than the funds of natural persons.
If someone could come up with a way of differentiating corporate speech from natural persons’ speech in a way that created a constitutionally significant difference, it shouldn’t be too hard to find it. I’ve never heard of one, personally. But it’s not my area of specialty, so perhaps it’s out there. It would be very interesting to see!
No need to wait that long. History provides multiple examples of laws about campaign contributions which stood the test of time - and courts - until this particular USSC came along and took a meat axe to it.
Yes, there have been numerous laws limiting campaign contributions in the U.S. dating back to the early 20th century, most notably the
[Federal Election Campaign Act (FECA)] of 1971/1974. While direct corporate contributions were banned in 1907, modern limits on individual donations were upheld in 1976, though many aggregate caps were removed by the Supreme Court in 2014.
Key historical and legal milestones include:
[Tillman Act of 1907] Prohibited corporations and national banks from making direct financial contributions to federal candidates.
[Federal Corrupt Practices Act (1925)] Strengthened disclosure requirements and set initial spending limits.
[Hatch Act (1939)] Set a $5,000 limit on individual contributions to national political committees and a maximum cap on party expenditures.
Federal Election Campaign Act (1971/1974): Established strict, inflation-indexed contribution limits for individuals, parties, and Political Action Committees (PACs) after the Watergate scandal, creating the Federal Election Commission (FEC) to enforce them.
[Buckley v. Valeo (1976) The Supreme Court upheld, as constitutional, limits on contributions (the amount a donor gives) but struck down limits on expenditures (the amount a campaign spends) as violations of free speech.
[Bipartisan Campaign Reform Act (2002)] Also known as McCain-Feingold, this law increased contribution limits and banned “soft money” donations to national parties.
[McCutcheon v. FEC (2014)] The Supreme Court struck down aggregate limits, which previously capped the total amount an individual could give to all candidates and parties combined, though base limits per candidate remain.
Correct me if I’m wrong, but I think we still had freedom of speech through all of this, and I think politicians still advertised, spent money on rallies, and did all the other things we’ve come to associate with political campaigns, no?
In Montana, organizers are collecting signatures for a ballot initiative called “The Montana Plan”. The initiative would prevent artificial persons from “contributing anything of value to candidate elections, supporting or opposing political parties, or supporting or opposing state or local ballot issues.” It says it doesn’t apply to “news, commentary, or editorial content.”
Corporate groups sued to stop the initiative. The Montana Supreme Court recently ruled that organizers can continue collecting signatures.
Here’s the full text of the initiative.
I-194, if passed, limits the powers of artificial persons to those powers necessary or convenient as provided by law. These powers must exclude contributing anything of value to candidate elections, supporting or opposing political parties, or supporting or opposing state or local ballot issues. Artificial persons include non-profits, trusts, partnerships, corporations, trade associations, or unincorporated associations and includes all such entities doing business in Montana. Any violation of I-194 is punished by forfeiting all privileges to do business in Montana. Those privileges may be, but are not automatically, restored upon disgorgement and certification of compliance with I-194. I-194 does not apply to the distribution of news, commentary, or editorial content. I-194 also does not apply to the state of Montana, political subdivisions, individuals, political committees, or public corporations.
Yep. But in Citizen United, the SCOTUS was not comforted by the government’s observation that even though they claimed that they had the power to ban books, they had not yet done so. Nor was Citizens United about what the politiicans did, because contributions to their campaigns were not at issue - but rather about what everyone else was allowed to do.
And if they can do that, would they be able to prevent artificial persons from “supporting abortion rights?” Or perhaps prevent them from “presenting gay persons in a positive manner?” Or “engaging in any negative commentary on incumbent elected officials?”
Probably. I think that would be OK with me. I’m sure there would be some negative consequences I wouldn’t like, but overall, I’d think it’s a plus. Then again, I’m not an absolutist. I believe there are times when “Freedom of Speech” can be curtailed (and is: libel, “fire” in a crowded auditorium, copyright, etc.) when “Freedom of Religion” can be likewise (polygamy, slavery, women as chattel), and so on.
There’s very little in the world that’s 100%. Maybe this could be one of them?
Then you’re abandoning freedom of speech. Entirely.
Virtually every piece of information you receive is produced, published, or distributed by a corporate entity. Every movie, every television show, every radio broadcast, every book you read. If corporate entities don’t have First Amendment protections, then every single thing they make can be censored.
That also means they can censor all the corporations that play such an important role in our society. I’ve mentioned 350.org and the Sierra Club a few times, but it’s every corporate entity. The NAACP, or Greenpeace, or Harvard University, or the Kinsey Institute, or Doctors without Borders, or every other organization that plays a role in public life.
I don’t think that people who argue “corporations aren’t people” and therefore don’t merit First Amendment protections think through the ramifications of what that would actually mean. Because they’re thinking of corporations like Monsanto, and not corporations like Random House Publishing or NBC/Universal or Columbia University or Planned Parenthood.
Nonsense. I’m not talking about “what they do”. I’m talking about “using money to influence politics.”
That is a vast ocean of difference. I’m surprised you can’t tell the distinction. It’s pretty easy: one involves doing what the corporation does to make a profit and return it to shareholders or the business owner. The other involves bribing politicians to enact laws using bags of cash and secret bitcoin codes..
Nor am I talking about eliminating it entirely. I’m proposing limiting it to some reasonable number, by which one person, corporation, or other entity can’t swamp the boat by dint of volume.
Is TMF allowing people to influence politics right now with this message board?
Can a company advertise that they have no GMOs - or is that political?
Can Ford claim to be an Equal Opportunity Employer - or is that political?
If you let the government determine the definition of what violates a ban on political speech, then EVERYTHING any administration doesn’t like will be defined as political speech.
