[Citizens United] and money in elections
Jragghen
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So among the multitude of bills already submitted by the new Congress, one of them is of particular note because of three points:
https://teddeutch.house.gov/news/documentsingle.aspx?DocumentID=399461
Sections themselves:
This thread is to be a launching point for money in politics discussions, what can be done about them, and the viability of the above Constitutional Amendment (or other similar legislation). It is not a media thread, and it is not a 2020 thread.
e: Press release didn't include it for some reason, but it's also sponsored by Senators Tom Udall (D-NM) and Michael Bennet (D-CO).
- It's a Constitutional Amendment
- It deals with elections
- It's actually got sponsorship from both parties
https://teddeutch.house.gov/news/documentsingle.aspx?DocumentID=399461
On Thursday, the first day of the 116th Congress, Congressman Ted Deutch (D-FL), Congressman Jim McGovern (D-MA), Congressman Jamie Raskin (D-MD), and Congressman John Katko (R-NY) introduced a bipartisan constitutional amendment to get big money out of politics and restore democratic power to the American people.
The Democracy for All Amendment affirms the right of states and the federal government to pass laws that regulate spending in elections, reversing the concentration of political influence held by the wealthiest Americans and large corporations capable of spending millions of dollars in our elections. This legislation comes days before the ninth anniversary of the U.S. Supreme Court’s disastrous ruling in the Citizens United case.
For more information on the amendment, click here for a background summary and click here for a section-by-section and answered FAQs.
Sections themselves:
Section I. To advance democratic self-government and political equality, and to
protect the integrity of government and the electoral process, Congress and the
States may regulate and set reasonable limits on the raising and spending of money
by candidates and others to influence elections.
Section II. Congress and the States shall have power to implement and enforce this
article by appropriate legislation, and may distinguish between natural persons and
corporations or other artificial entities created by law, including by prohibiting such
entities from spending money to influence elections.
Section III. Nothing in this article shall be construed to grant Congress or the States
the power to abridge the freedom of the press.
This thread is to be a launching point for money in politics discussions, what can be done about them, and the viability of the above Constitutional Amendment (or other similar legislation). It is not a media thread, and it is not a 2020 thread.
e: Press release didn't include it for some reason, but it's also sponsored by Senators Tom Udall (D-NM) and Michael Bennet (D-CO).
Jragghen on
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Don't disagree with the problem on section 1, but a Constitution is to be framework for legislation, and "reasonable limits" feels like a legislation problem, not a framework problem?
- Reasonable limits is a problem, it needs a better standard or some direction for the Judicial to make sense of and to guide the legislative.
- "regulate and set reasonable limits" is badly worded. If Congress regulates spending to block all corporate activity but does not set a money cap, has it violated the Constitution because it did only one part but not the other? Must any legislation both regulate and set a financial limit to be Constitutional?
- calls out 'money' specifically, rather than other forms of compensation? If Facebook gives a billion dollars worth of ad space to a candidate, is that "spending money"?
- Section 3 is just stupid. Does this mean it can be construed as granting Congress the power to abridge the Freedoms of Speech and Association? Why not mention the 1St Amendment in its entirety? I suspect it's because the writers do in fact intend to abridge freedom of association and speech.
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I'm not aware of a good Constitutional argument that explains why it should be illegal for a group of people to pool money to speak in support of an electoral candidate. I'm interested in seeing how supporters get around the rest of the 1A...
That said...
Wouldn't the fact that this is an amendment mean that it would carry the same weight, or possibly override, the first Amendment? That's kind of the whole point -- the court ruled it unconstitutional, this modifies the constitution to make it constitutional...
Since we're talking about a constitutional amendment here, the doctrine of implicit repeal - later amendments are considered to supercede prior ones.
As for why it should be illegal, that's because the First Amendment is not the alpha and omega of free speech. If this pool of money is being used to crowd out the speech of others, there's an argument to be made that it is limiting free speech. (See also: the heckler's veto.)
That's not an argument though - we both know the 1A protects us from govt abridgment of speech, it doesn't protect us from being drowned out in the public square by louder speakers. Heckler's veto is Constitutional.
but I guess I should clarify that last point - I'm not aware of a good argument that explains why we should Constitutionally limit the 1A in these ways.
It's an amendment saying Congress is allowed to create laws that regulate money in elections, not a law specifying what the limits are going to be. What exactly are you looking for here?
"States may regulate and may set reasonable limits on the ... etc." The second may is implied, but sure, it doesn't hurt to have it spelled out.
Do we have to specifically spell out that money can take other forms than cash? If so, fine, "money, gifts in kind, and other things of value."
Section 3 is necessary because the press influences elections by reporting on them. So to sidestep any shenanigans, they explicitly lay out that it is not suddenly okay to pass laws restricting the press because they do spend money to do their job. Since speech and association are not money nor vice versa, I don't know why you think it's necessary to mention them in this amendment, nor why this amendment would somehow infringe on those rights.
because it runs fundamentally counter to democratic principles that powerful interests should have a larger control over the representatives of government than the general public via use of economic power.
While it's still a factor, elections are not won or lost based on spending power, so all parties can be heard.
The thing about rights is that they are more complicated than a basic "no restrictions on X". Freedom of speech is irrelevant when you cannot be heard because someone else is screaming.
Also, MPs are not spending most of their time begging for money and listening to the richests.
A democratic system is, by its nature, intended to distribute the power of rule throughout the people governed.
A republican system, ostensibly, is meant to offload the responsibilities of governing to a group of people democratically elected who are able to focus on the intricacies of governing and can devote themselves as necessary to understanding how the system being governed works and impacts the people.
Ostensibly, that system is designed so that the representatives primary influence is that of their constituency as citizens, via vote.
But campaign financing breaks that. For one, it turns a large degree of a representatives time into focusing on raising the money needed to compete in a money-driven election that tends to last, in the American system, about a year and a half. And that in turn makes them reliant heavily on private, big-money donors to keep their campaigns afloat. Which now means the intended balance of power has broken: it isn’t a matter of your vote that determines the representative to represent you, it’s keeping the donors that make their campaigns fiscally feasible happy that does. The power dynamic shifts from democratic representation to oligarchical representation, with a thin gilding of democratic values.
The issue is, is it constitutional? Depending on your reading, sure! If you view the spending of money as a speech issue then you can certainly cram that right into being constitutional.
But the problem is, like, we’re still retrofitting a more just society onto what is a two centuries old legal document that by and large initially only extended its freedoms to wealthy landed gentry. And where continent-wide mass media campaigns targeting individual districts and the financial costs of staging and fighting those campaigns didn’t exist.
At some point, when push comes to shove we need to ask ourselves what our values are. And in this case, we need to ask if what we want is democratically accountable representation that may involve amending the constitution such that election spending is no longer considered “free speech,” or do we preserve a notion of free speech that tramples the spirit of that ideal by establishing what is essentially oligarchical representation?
Because Citizens United v. Federal Election Commission substantially limited the ability of the government to regulate campaign financing, equated the right to free expression of a government defined liability limiting and investment allotment arrangement to that of an individual with natural rights specifically in its ability to attempt to influence an electoral campaign and hamstrung the ability of the government to fight corruption in general by creating an extremely high bar to demonstrate government corruption.
It's in the thread title.
QEDMF xbl: PantsB G+
Moving past the drowning out argument would you agree that campaign donations effect policy votes in ways that arent always in the best interest of the population?
Just in case anybody else needed three tries to parse this,
"equated the right to free expression of a government-defined liability-limiting and investment allotment arrangement, to that of an individual with natural rights (specifically, in its ability to attempt to influence an electoral campaign), and hamstrung the ability of the government to fight corruption in general, by creating an extremely high bar to demonstrate government corruption."
The question posited wasn't "is the heckler's veto Constitutionally protected?", though. It was "should the heckler's veto be Constitutionally protected?" This is why I said that the First Amendment is not the alpha and omega of free speech - because there's a tendency in the US to treat it as such, and as a result, we tend to struggle with the reality that there is no such thing as" absolute free speech" and the ensuing compromises that makes necessary. The point of the proposed amendment is that allowing money to be treated as speech has a corrosive effect on society, so it has to be limited. At this point, I think it's hard to argue otherwise.
All this will do is push the dark money to be funneled through companies setup to fit under whatever legislators deem to be “the press.” So instead of super PACs you have more Fox News types or ad companies or documentary movie companies, etc. All of the money in elections primarily goes to ad campaigns anyway.
There’s actually a decent body of First Amendment law dealing with the heckler’s veto where the Justices grapple with this question.
Also the Court is very bad at predicting the consequences of its decisions. Then again, a lot of First Amendment jurisprudence deals with rights based reasoning in the abstract rather than empirical consequentialist reasoning.
Its ranks up there with Dred Scott in terms of stupid supreme court decisions.
possibly. Certainly the need for funding can distort political behavior once in office. I'm not sure I really buy into the argument that Money = Winning - ultimately it's votes that = winning, and I think there's a hidden patronizing position in here where we assume that people are just stupid and will vote for whoever spends more because they're rubes. There's a danger of falling victim to partisan hypocrisy here - Obama won because he was awesome, not because he had lots of money, but Trump won despite being bad, because of all the money spent electing him?
But yeah, in some cases money does distort policy, and certainly the money barrier keeps underfunded candidates out of the race in some cases. A big megaphone costs a lot, and that means the megaphone operators end up with an outsized ability to influence what comes out of them.
I just can't find my way to a Constitutional reason why we ought not be allowed to start Penny Arcade Forumers for Democrats and pool our cash together so our opinion is heard. We're free to assemble, we're allowed to spend money promoting our speech. I guess the ultimate argument is that we can't be heard by candidates because the Koch Bros drown us out and that's bad for the Republic?
"The Press" isn't even a thing now. I should have caught that. Press Freedom is changing its meaning post-internet.
The proposed amendment is really bad!
What I mean is that it's necessary but not sufficient. You can be rich and also a bad candidate or a bad campaigner, and your money won't get you elected.
removing the necessary part seems maybe impossible! This is perhaps the best argument for public funded elections, but if we're going to overturn CU with an amendment it needs to be a lot better than the one referenced in the OP. PACs should exist! How they are regulated is worth baking into an Amendment imo...
I think that by "bad" Spool means "unpalatable to the electorate" which Trump was not (sufficient to get him the win anyway), rather than "suitable to be President."
One of the nice things Ocasio-Cortez and the other Democratic freshmen did was publicize stuff like the congressional orientation process. Which, it turns out, is run by corporate lobbyists. That pervasive level of access warps elected officials perception of what is important. Instead of hearing from regular people, they're hearing from the mega rich, because money buys access. And that changes your legislative priorities.
EDIT: Forgot my asterisk.
*Of course it does. The less media attention a race gets, the more it matters. Paying organizers alone is a big deal.
Or, basically, another $10 million in a presidential campaign takes you from 100 to 101 ad buys. $10 thousand in a lower level race takes you from 0 to 1 ad buys.
And basic things like "name recognition" are HUGE in lower level races.
I think you either make it super vague and say that states and/or congress can limit any kind of election donation (be it cash or gifts or free ad time, etc.) in any way they want, and live with any consequences of that, or you need to be pretty specific about how and where limits can be made. Much more specific than a one off comment that this does not infringe on freedom of press.
Ignoring that isn't quite what the Amendment does, isn't that why the proposed legislation is an amendment? There isn't, at least not with the current court, a strong Constitutional argument that allows strong restrictions on using money or other financial resources to promote political speech. So the Amendment creates a Constitutional reason that justifies that regulation.
You can't think of proposed Amendments under the framework of Constitutionality, because they by definition supecede it.
That is, even if money doesn't win the election directly, it shapes both candidates towards the pursuit of it. The system incentivizes spending a lot of money, and a fundraiser with a corporation here, a hedging policy statement there, etc. all make both candidates more likely to support at least aspects of the (wealthy) status quo than they would otherwise.
I remember from a WaPo article a few days back, with polling data that suggested that, yes, even Democratic congressional aides have their views of what Americans want skewed to pro-business because of all the lobbyists that they run into.
Some of the data was actually a bit terrifying, like how aides were more likely to believe that a constituent that expressly labels themselves as a member of a big business in their district is a reliable barometer to their districts wants/needs than someone who doesn't. In fact, they were more likely to discount the opinion of the second constituent than not.
There may not be a Constitutional argument why money should be restricted in politics. The point of an amendment is to add one.
So.. was going to say people -are- stupid because no-one has enough time to validate all the information they receive, and instead relies on the trusted sources of the information to do that for them.
But instead I will say that I'm currently looking at the 2018 Edelman Trust barometer for Aus, and 65% of respondents to their survey have (at least) agreed to the statement that they are not sure what is true and what is not.
I don't want the guy who wrote the second amendment in charge of an amendment granting the state the ability to infringe on the right to speech.
The problem with citizens united is that the Federal Government has equated Money with Speech and Organizations with People. Neither of those things are the same thing and should not be regulated as such. We need the amendment to directly affirm that these two notions are incorrect and neither can be used as the basis for governance.