[Fwd: THE TEARS OF THE MIGHTY]

Nathan Newman nathan.newman at yale.edu
Wed Mar 15 09:33:38 PST 2000



>On Behalf Of JKSCHW at aol.com
> All that said, there are parts of American first amendment
> doctrine that are not so great, notably the rule that speech is
> money and so campaign expendiutures cannot be limited, see Buckey
> v. Vallejo. I am not sure Nathan would disagree that this is bad law.
> The libel law and campaign expenditures doctrines are distinct
> from each other and distinct from the Brandenburg v Ohio doctrine
> that underlies the right of Nazis (and Commies) to advocate
> illegal conduct.

I am not sure any of them are totally separable, since the "make no law" Hugo Black pole of the debate is precisely the uncompromising separation of speech (always protected) from action (touchable by state regulation).

And for this reason, I think Buckley is generally correct (if anything I think it was too restrictive) in that separating money from speech is pretty tough (even though the courts do make distinctions by upholding certain limits on contributions). If the government can tell anyone that they are free to say whatever they want, but can't spend more than $10 promoting that view, that is obviously a massive limitation on effective speech. The bad effects of campaign spending limits, even as they are allowed under Buckely, are rules that place the same contribution limits on 1-million member labor unions as on political action groups representing a marginal business interests. Such "equality" of spending works to the disadvantage of working class people who need to aggregate their donations to be effective.

I am no fan of any campaign finance "reform" measures that are based on merely restricting spending by certain groups. In almost all cases, as their opponents invariably and correctly charge, there is usually a purpose to disproportionately harm some specific political group in society through such restrictions - not merely "special interests" in some amorphous undifferentiated way as McCain-Feingold style legislation argues.

Constitutionally, there is a simple way to largely achieve political parity for different candidates in elections. It's public financing. Once a candidate accepts public financing, the state can bar receipt of any other kind of contribution. If every federal election was publicly financed, the whole problem of "soft money" could largely be eliminated without any violations of Buckley. "Special interests" would of course be free to spend what they will on their own dime independently, but it is pretty impossible to see how you could in any case theoretically distinguish such spending from Doug publishing an LBO article in praise of the Green Party. In Britain where there is strict campaign finance limits, Rupert Murdoch has just bought up whole newspapers and turned his tabloids into electioneering vehicles (with Labour papers doing the same).

The only solution to inequality in speech is not to restrict that of the wealthy, but to increase the voices of the less wealthy through public financing. To avoid the government playing games, my preferred form is one where each voter could assign $20-100 to any political party or organization. In that case, if the Greens could attract one million supporters, they would have $20-$100 million to spend on their campaigns, with every other assortment of union PAC, Christian Coalition, and mainstream party taking their chunks of the money spent.

The point is that if the public money is high enough, the private money will have less ability to dominate the debate.

Any campaign finance proposal based on restrictions of speech will ultimately fail to do that.

-- Nathan Newman



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