I’m not one of them. I don’t think most people are being as extremist as you portray.
Oh, poor babies.
Curious that it was Constitutional for more than a century, between 1907 (The Tillman Act) and 2010 (Citizens United). I guess it depends which part of the constitution you are arguing, and I can’t find the word “corporation” in there a single time. It clearly says “person”, but some of us think that is a different thing.
As I just pointed out, let him do it as long as he’s acting independently from candidates and politicians. Here’s the thing, extremely wealthy people don’t need Super PACs to exercise their freedom of speech. Ordinary citizens benefit from PACs by pooling their resources and matching the outsized freedom of speech exercised by the extremely wealthy. Here’s how they can be improved - Cap contributions to level the playing field, and allow unrestricted spending. Booyah! By allowing unrestricted contributions, we’re allowing the extremely wealthy to have “more” speech. That ain’t right.
Harvard University isn’t a PAC, nor do they have an affiliated PAC. Capping donations to Harvard doesn’t make sense. The Sunrise Movement does have an affiliated PAC. In fact, many advocacy organizations do. Donors can choose to contribute to the organization, or to their affiliated PAC. Their contributions to the PAC are capped and not tax deductible, their contributions to the non-profit organizations are not capped and are tax deductible.
Some advocacy groups also have Super PACs to get that big donor money. Organizations that have non-profit, PAC, and Super PAC affiliates keep contributions in separate buckets, it’s very possible to cap contributions to political advocacy arms, without impacting their ability to get that big donor money for their charitable, educational, or scientific efforts.
Agreed. I don’t want to restrict their actual speech, I just want to take their 1000 watt megaphone away.
Lots of things are constitutional until they’re successfully challenged - restrictions on contraception, prohibitions on sodomy, bans on interracial marriage, etc. You could fill a book with such things.
As far as “person” being a different thing than a corporation, that’s the main thrust of this argument. States can do anything they want to something that isn’t a person. No right to trials, no rights to contract, no protection against confiscation of property, no free speech, no free press, etc. The 14th Amendment grants all those rights to persons, and if you’re not one, you’re out of luck. That’s the tactic that Alabama (and other states) tried to use during the Civil Rights movement - the NAACP isn’t a person, so we can do anything we want to it. SCOTUS (correctly, IMHO), stepped in and told them no way.
If you start making arguments along the lines that the word “corporation” isn’t mentioned in the Constitution, it sure sounds like you’re arguing that corporations aren’t constitutionally protected under the 14A. Which again, only applies to persons. Are you? If so, are you willing to accept the power that gives to states to do what they will to corporate entities, like the NAACP?
But you can’t really do that. What’s the basis for capping contributions to some corporations and not others? All of this is entirely motivated by, and exists solely for the purpose of, limiting the ability of these corporate entities to engage in core political speech. Government’s not allowed to do that.
…which is restricting their actual speech. You don’t want to restrict their content or their message, but you want to restrict their ability to publish it as broadly as they want to publish it. That’s verboten under the First Amendment. You can’t pass a law that says that Author X can publish any book he wants, but is limited to 10,000 units so that Author Y gets a crack at a larger audience. Same is true for campaign ads, for our sins.
Or, again - you could argue that such a law should be permissible for government, but the 1A reasoning you adopt would apply equally to the campaign ads and to the speech we don’t want to restrict (like Author X’s book). That’s because all these arguments are based on a public policy decision that the government can decide they don’t like it if X speaks too much, and that there should therefore be a way to prevent X from speaking that much. Lots of arguments in favor of that position, but they’re not arguments that work under the First Amendment.
It’s already being done, contributions to political advocacy committees are already being capped. When people contribute to a PAC or a Super PAC, they’re donating to a committee, not a corporation. PACs and Super PACs are tax-exempt non-corporations.
Nuh uh. As I mentioned a bazillion posts ago…If we’re talking about a for-profit corporation, I’m not suggesting that we should limit their independent political advocacy spending (speech). Like individuals, if they want to spend their own money trying to persuade voters, let them at it. No collaboration should be allowed with candidates, nor politicians who can vote for their favored legislation. Like the extremely wealthy, big corporations don’t need Super PACs to amplify their speech, they can do that all on their own.
Get rid of Super PACs and change the rules to allow contribution capped PACs to spend limitlessly.
Same issue. Whether it’s a trust, partnership, corporation, or committee, there needs to be a reason for the restriction other than a desire to limit their speech activities. If the purpose for restricting their donations is to restrict their speech, it’s the same problem.
Then why limit the independent political advocacy spending of a not-for-profit corporation? Why can Exxon spend as much as they want on fighting climate change regulations, but Sunrise Movement is restricted in how much they can take in donations to fund the contrary argument?
I know, I know - you don’t want a rule that says that Sunrise Movement is also restricted. But then we run into the same problem of drawing lines. What is the distinction between public policy organizations (like Sunrise) funding speech on issues they want to change or to get their preferred candidates elected, and other organizations (like, say, Citizens United) that also want to publish speech on issues they care about and get candidates elected that they want?
To prevent bribery, quid quo pro corruption. That’s the SCOTUS accepted reason for why candidates and PACs already have their contributions limited.
I don’t think we should.
You’re comparing apples and oranges. You’re also conflating contributions and spending. Exxon is a for-profit corporation that doesn’t take in donations. Also, they have other measures of accountability to check their political spending. Shareholders can hold them accountable.
It feels like I’m on crazy pills. Contributions restricted? Yes! Spending restricted? No!
There shouldn’t be a distinction. Sunrise should continue to be able to receive unlimited donations for their education and training efforts, while their political advocacy affiliates have limits on contributions. If these organizations want practice the core political freedom of speech. Their contributions should be restricted, but they should be able to spend as much as they’d like. Samesies for Citizens United.
Exactly. SCOTUS has held that is a justification for restricting contributions, but not independent speech.
Apples and oranges are actually quite similar. Just because there are differences between for-profit and not-for-profit corporations doesn’t mean that any of those differences are relevant for Constitutional purposes. Congress is not allowed to have as their goal, “we want less political speech.” They can have other goals that they can pursue that might have a minor, incidental effect on speech - but they cannot have the intention of reducing political speech.
You’re willing to accept a rule that limits contributions to organizations like Sunrise Movement? That’s…certainly surprising. A regulation that restricted contributions to all not-for-profits might pass muster, since it wouldn’t be based on the content of their speech. It would certainly change the world in a lot of ways (bye-bye most big charities, universities, not-for-profit hospitals and other eleemosynary institutions), and I’m not sure how Congress could justify it. But that’s one way to do it.
But that doesn’t work. There’s no constitutionally defensible justification for treating the two entities differently. The government can’t regulate differently based on the content of the speech - so if you can receive donations for education, you have to be able to receive donations for political advocacy.
That doesn’t solve the problem, because the courts see right through that. I can’t pass a limit on how many books a publisher is allowed to publish, for example (restricting output). I also can’t impose a limit on how much ink the publisher is allowed to buy (restricting inputs) for the purpose of restricting output. If the reason that you’re restricting donations is for the purpose of limiting how much money they have to spend on their speech, it’s constitutionally the equivalent of restricting their speech - so no can do.
I’ve said it about a bazillion times. The purpose is to prevent bribery and quid pro quo corruption.
Eleemosynary…nice word!
You’re twisting my words. I’m not suggesting all non-profits should have their contributions capped. I’m suggesting restricting contributions to their political advocacy affiliates (should they have one) to prevent bribery and quid pro quo corruption. I’m also suggesting that they should be free to spend as much as they like on political advocacy.
Let’s take Sierra Club as an example. Sierra Club has a non-profit foundation that can accept unlimited donations and funds projects and education. Sierra Club also has a PAC that has restricted contributions, with restricted spending. They also have a Super PAC that plays by the Super PAC rules. This is an organization that is playing by different rules, depending on how their contributions are used.
The government already regulates contributions. By can’t, do you mean they shouldn’t? Cause if they can’t, but they are, then they can.
But how is that purpose being achieved? By limiting the speech that these entities can engage in.
I understand, but that’s not permissible. On what grounds are you restricting contributions to one type of not-for-profit corporation and not others? IOW, why does Citizens United get their contributions capped and not Sunshine Movement other than you want to restrict the amount of speech that Citizens United can engage in?
The government only regulates contributions when the entity in question coordinates with the campaign - because SCOTUS has determined that the government can regulate donations to campaigns. Independent expenditures that are about campaigns, but are not given to the campaign nor coordinated with the campaign, are not permitted to be regulated or limited. For an entity like an unaffiliated PAC where you can’t limit the expenditures, you can’t instead regulate the donations as a backdoor way of indirectly limiting the expenditures.
IOW, you can’t go about restricting protected political speech (even if you have a good reason for restricting political speech, like you think it will fight corruption or prevent quid-pro-quo transactions). You can restrict actual donations to the campaign. You can restrict donations to related organizations that are serving as de facto instrumentalities of the campaign. But you can’t restrict donations to independent bodies that aren’t de facto instrumentalities of the campaign.
I’m not concerned with expenditures. I want to regulate contributions.
I know, that’s why I think we need to change the law as I suggested.
I understand that. But you asked why the different entities can lawfully be regulated differently. Because the expenditures of the “ordinary” PAC are coordinated with the formal campaign, the government has the power to limit contributions to that PAC under the same analysis that lets them regulate contributions to the campaign itself. However, where the entity’s expenditures are not coordinated with the campaign, they’re not permitted to do that.
But that’s why you can’t. Because the independent bodies are not de facto instrumentalities of the campaign, there’s no legal basis to treat their speech (political or otherwise) any differently from any other artificial entity. You can’t say that these entities are going to suffer from a legal liability (limits on contributions) that other entities are not subject to based on the content of their speech. You can’t say that not-for-profit A is allowed to accept unlimited donations because they don’t engage in certain types of speech, but that not-for-profit B is subject to a donation cap because they engage in other types of speech.
Again, at least without significantly breaking the First Amendment.
Our politics is doomed until we liberate it from money: money mostly for paid adverts that are related to real political discussion as twinkies are to real food.
We need citizens to talk to each other in groups, you know, like no one likes to because it makes almost everyone uncomfortable…
I’m growing tired of the back and forth.
I CAN say that because non-profits are ALREADY treated differently depending on their political speech!
"A 501(c)(4) is a “social welfare” organization, in IRS terminology. In fact, the law requires these groups to be “operated exclusively” for the promotion of social welfare." But the IRS finalized a regulation in 1959 that allows the groups to participate in some political activity as long as politics isn’t their primary purpose. Many of the most prominent issue groups have long existed as 501(c)(4)s – groups like the National Rifle Association and the Sierra Club.
The unwritten rule is that these groups must spend less than half of their resources on political activities. Critics bemoan the lack of guidelines, but the IRS will only go so far as to say they use the “facts and circumstances” of each case, looking at a variety of factors, to determine whether an organization’s primary purpose is or is not political. Most tax lawyers suggest that, to avoid risk, at least 50.1 percent of their efforts must go toward “social welfare” activities, meaning they must be devoted to “promoting in some way the common good and general welfare of the people of the community,” according to the IRS.
Other 501(c) organizations include 501(c)(3) groups, which are charities that can accept tax-deductible donations. Politics is mostly off-limits for them. Others – 501(c)(5)s (labor groups) and 501(c)(6)s (business associations) – can be politically active, within limits. Donations to these groups aren’t tax-deductible. The numerical designations of these organizations come from the provisions of the Tax Code that apply to them."
I’m sorry that it’s frustrating. These things are complicated, and it can be very tiring. But pointing to these differences misunderstands the problem.
Congress can’t distinguish between these groups based on the type of speech they engage in. What Congress can do is say that if you’re a group that’s a social welfare group, you have to be primarily a social welfare group. You can’t have 50.1% of your activity (to pick an arbitrary number) be anything else. Politics, car racing, land banking, whatever - the majority of your stuff has to be social welfare. They’re not saying that if you majority engage in a certain type of speech you’ll lose your tax status: they’re saying that if you majority engage in any activity other than social welfare, you’ll lose that particular tax status.
Congress can do that for almost anything. If they want to grant a tax exemption for a “peanut-butter tasting organization,” they can do that. That means you can’t be majority political - it also means you can’t be majority car racing, or hyrdoponic research, or homeless outreach or anything other than peanut-butter tasting.
IOW, government isn’t basing the decision based on the content of your speech - it’s based on whether you’re doing the thing that qualifies you for the tax exemption. Campaign speech, and indeed any particular kind of speech, is only a small component of the massive universe of things that can’t be the majority of your activity. The point of the regulation is not prohibiting you from doing a kind of speech.
If a non-profit wants to keep their tax exempt status, their speech is restricted. That’s the point.
Given that these kinds of tax laws have not been found to be unconstitutional, it seems possible to implement restrictions on tax exempt Super PACs.
Again, I’m not saying current laws allow for it. I’m only intending to provide examples of how our government currently has laws that result in restricting free speech.
I understand your intention, but those aren’t examples of free speech restrictions. Let me try with a clearer example:
Suppose Congress creates a new tax exemption. This time, for research labs. If you run a research lab, you are exempt from certain taxes.
But to qualify for this exemption, you have to be a research lab. You can’t be running a homeless shelter, or a youth basketball league, or a community garden and get this tax break. Just a research lab.
Of course, that also means you can’t be a Shakespearean theater company and qualify for the tax break. That type of use is also among the literally thousands of thousands of things that are not research labs.
That does not mean the government is censoring Shakespeare. It is not a free speech restriction, and it is not a disability imposed by the government on Shakespeare performances. Yes, there is a trivial effect that Shakespeare performances - along with thousands and thousands of other things - are not within the category that gets that particular tax exemption. But you can’t point to that as an example of how the government is allowed to restrict speech, because the courts would never consider that as a speech restriction, even though one effect of it is that there now exists a tax benefit that is available to a small group of enterprises that doesn’t include theater.
The same is true of the exemption you’ve identified. It’s not an example of a law that restricts free speech. In order to qualify for that specific tax exemption, your organization has to be principally devoted to community welfare activities. Just like the research lab example, that means there are thousands and thousands of things that your organization can’t principally do instead - anything that isn’t community welfare. The fact that politics (not just political speech, but politics generally) is one of the thousands and thousands of things that are not included in the tax exemption is not a speech restriction, even though (like the research lab example) it has the incidental effect that certain speech activities won’t qualify for the exemption.
You can’t point to that as indicating that something which is a restriction based entirely on the content of speech would be defensible under the same analysis.
I haven’t once mentioned restricting the content of speech. Your arguments indicate that any regulation that impacts political speech isn’t possible. This isn’t true. 501(c) non-profits have to navigate lots of regulations that impact their ability to engage in politics. This restricts their political speech.
Let’s talk about 527 organizations - political parties, candidate campaign committees, PACs, and Super PACs. All of them have restrictions on what donors can contribute, except one…Super PACs. The limits to candidates aim to prevent the opportunity for corruption. The limits to all PACs? What’s the justification? If you can limit all PACs, what makes Super PACs immune to regulation?
Super PACs didn’t exist before Citizens United. That ruling didn’t reaffirm the legality of their status. It created an opportunity for political organizations to leverage judicial opinions to find loop holes in existing regulation.
Now we have no-holds-barred, super slush funds that can spend limitlessly. Sure, they have to be “independent”, but in reality many of them skirt the rules, or outright break the law. Since enforcement is weak, there’s no incentive for them to play by the rules. There are plenty of examples of Super PAC corruption, the judicial opinions that assumed independent expenditures could not corrupt have been proven to be wrong.
Ah, but you have. Though you might not have realized it.
If you impose different regulations on an entity if they engage in supporting candidates than if they’re engaged in issue advocacy, that’s a content-based regulation. That’s what was at issue in Citizens United, and is one of the core issues of campaign finance regulations. There is a set of regulations that apply to activities (or entities that engage in activities) that involve promoting the election or defeat of a candidate, which regulations don’t apply to other public policy speech. That is a regulation based on content. I can run an ad advocating for stricter climate change regulation at any time, without restriction - but if I run an ad advocating that a candidate be elected, that would be subject to different rules.
As a very general matter, the First Amendment prohibits government regulations that are based on the content of speech (a number of exceptions, but none really relevant here). Content-based restrictions are subject to the most stringent scrutiny and almost never pass muster. If you’re saying that a not-for-profit organization can have unlimited donations if it engages in any kind of speech except campaign speech (in which case the contributions are limited), then that’s a content-based restriction.
Coordination with the campaign. SCOTUS has said you can regulate contributions to a campaign, but you can’t regulate speech about a campaign. If the PAC is coordinating its activity with the campaign, it becomes a de facto organ of the campaign, and so contributions can be restricted. If the PAC is not coordinating with the campaign and is a separate corporate entity, there’s no constitutionally permissible basis for limiting contributions.
Let’s come at this another way. Since you’re the lawyer. How would YOU prevent the buying and selling of politicians? Because, ultimately, that’s the goal people are arguing for. If politicians can be bought, then we really don’t have a democracy. We have some form or plutocracy. That’s not what we want. The Founders had to be aware of the East India Trading Company (and a very few other entities at the time). Isn’t that perhaps the reason they specified “people”, and not “companies” in our Constitution?
So, how would you address it? It is intractable, and all hope is lost?
