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As It Turns Out, Money Is Speech
Those who advocate for more restrictions on campaign finance generally practice a populist politics. They fulminate against the influence of money, demonize donors, and ascribe all the nation’s problems to Citizens United. Once you have read an example such reformist rhetoric, you have read all of them. (But if you must read more, here’s E.J. Dionne’s recent, especially over-the-top offering in the genre).
But not all critics of campaign finance are so intellectually empty. Consider the recent op-ed by liberal law professor Geoffrey Stone. He addresses the question: “Is money speech?” For the conventional reformer, of course, money is not speech. Some even wish to amend the Constitution to recognize what they take to be the obvious truth that money is not speech. Stone shows why they are wrong. He remarks, “Not a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech.”
Stone says the correct question to ask is “When should the government be allowed to regulate political contributions and expenditures — even if they are speech?”
Regarding expenditures, the Supreme Court has for some time answered this question with “never.” Limits on spending abridge the freedom of speech. That answer makes sense. If any speech implicates “the freedom of speech,” political speech does. If spending funds political speech, the “make no law” admonition in the First Amendment applies to such spending.
The Court has also been especially hostile to government regulations of the content of speech. But campaign finance regulations are always content-based. Most seek to advance a partisan cause expressed in speech. Others seek to suppress speech critical of current officeholders. The rest hope to cut funding to speech that they see as ideologically “incorrect.”
Let’s face it: few would care about campaign finance regulations if such rules did not give hope of suppressing speech they disdain and thereby the triumph of a cause they hold dear. Campaign finance regulations should always be suspect in a nation that values in fact as well as words “the freedom of speech.”
Should I Change My Mind about Super PACs?
Lately I have argued that Super PACs, a result of the SpeechNow judicial decision, have enhanced democratic debate in the 2012 presidential election.
Super PACs have had one undeniable specific result this year: they enabled a donor to give a Super PAC supporting Newt Gingrich several million dollars. Mr. Gingrich, it turns out, has put that money to good use to win the South Carolina primary and now to take the lead in Florida, according to recent polls. Absent that Super PAC spending (and the contribution that made it possible), Mr. Gingrich’s candidacy would have come to an end no later than the end of the New Hampshire primary.
Some people say that Mr. Gingrich’s nomination or election would be a disaster for the Republican party or for the nation, respectively. Let’s assume the accuracy of those beliefs for purposes of argument. Given that, shouldn’t I at least reconsider my position on Super PACs?
Freedom of speech, like all public things, has risks. The real question should be: is such freedom better on the whole than the alternative, i.e. giving government officials the discretion to suppress speech? In this case, a ban on Super PACs would give the government the effective power to decide who loses and when in a party presidential primary. I do not believe that such power, even if it were constitutional, would be exercised on behalf of the general welfare of the country.
In any case, if Mr. Gingrich’s efforts turn out to be a disaster for the GOP or the USA, it will not be because he spent money on television ads. He can only succeed through gaining the assent of voters who were moved by his ads and other considerations (his general demeanor, debate style, and so on). Money fosters speech; it does not guarantee electoral success.
Finally, in this case, as always, more (money spent on) speech is the answer to (money spent on) speech. Gov. Romney and President Obama, I suspect, understand that truth and are ready to act on it. The rest will be up to voters, as it should be.
SpeechNow, the Decision that Made a Difference
Tomorrow will be the anniversary of the Citizens United decision. We have also been hearing a lot about “Super PACs,” which have supported a lot of speech in the Republican primaries. That speech has had a good effect: voters have heard a lot more about the candidates, their positions, and their character. Such information can only lead to better elections.
You might recall that Citizens United involved a movie about Hilary Clinton partially funded by a corporation. You might also notice that the Super PAC ads are not being funded by corporations but rather by individuals. What’s going on? Why can individuals freely fund political speech in South Carolina and other states?
Citizens United established the principle that government cannot prohibit the funding of speech undertaken independently of candidates and the parties. It did not free up spending on speech by individuals.
The decision that accomplished that was SpeechNow.org v. Federal Election Commission. In that case, a federal court found that individuals who want to associate with one another to fund political speech cannot have their contributions limited by government. Individuals can give what they want to an independent group and spend what they want on speech. That seems logical now, but prior to SpeechNow it was not the law.
Consider what might have happened if SpeechNow had not been decided. It would have been up to the Federal Election Commission to decide how to apply the Citizens United principle that independent speech should be free of government suppression. The FEC does not have a good record on moving quickly to liberalize campaign finance regulations (to put it mildly). The Super PACs question might well be tied up in the bureaucracy.
Voters in South Carolina and elsewhere have reason to celebrate the second anniversary of Citizens United. As we rightly celebrate that decision, we should not forget SpeechNow, the decision that made free speech a reality for voters in South Carolina and everywhere.
The 99 Percent
A New York Times-CBS News poll finds that 15 percent of the population consider themselves “upper middle class.” (Question 94) That same survey finds 16 percent report household incomes above $100,000 annually. I suspect there is a high correlation between the two groups.
The six-figure income must make it easier to cope with being oppressed by the 1 percent.
The Citizens United Anniversary
The second anniversary of the Citizens United decision has arrived bringing with it a new poll by The New York Times and CBS News. Question 68 asks whether groups unaffiliated with a candidate should be permitted to spend unlimited sums on advertisements during a political campaign. 67 percent say such spending should be limited; 29 percent say it should not be limited.
Three points here.
First, the majority disagrees not just with Citizens United but also with the basic campaign finance law decision, Buckley v. Valeo, which established that while contributions could be limited, spending could not be restricted under the First Amendment.
Second, it is discouraging but not surprising that freedom of speech in this concrete case does not receive majority support. While majorities support the First Amendment as an abstract symbol, polling has shown for decades that majorities oppose concrete applications of many provisions of the Bill of Rights. It is good, therefore, that a constitutional republic is not just rule of a majority.
Third, the glass is half full. Support for spending unlimited sums on advertisements has increased by 45 percent over the last 15 months (from 20 to 29 percent). The trend is better than the headline number. Moreover, after a few elections, independent spending may become less a partisan issue, thereby adding to the support for free speech by such groups.
How Google Destroyed American Democracy
Eugene Volokh poses some pertinent questions about Google and freedom of speech.
Google notes that Congress is considering the Protect IP Act (PIPA) in the Senate and the Stop Online Piracy Act (SOPA) in the House. They urge their readers to sign a petition opposing both bills.
You may recall the First Amendment says “Congress shall make no law…abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Google the corporation is also exercising its freedom of speech in this case.
As Volokh notes, many critics of Citizens United have argued corporations should not have First Amendment rights because they are not persons. Letting corporations fund political speech, they say, will destroy democracy.
If that position were judicial doctrine, Google would have no right against congressional regulation to speak on this issue or “to petition the government for a redress of grievances.” Congress would have the power to prohibit the speech associated with the link above.
If McCain-Feingold were still good law, Google’s case would be a bit complicated. As the speech stands, McCain-Feingold would not prohibit it. Google is addressing an issue which was permitted. However, if just prior to an election, Google had said “contact Lamar Smith (a sponsor of the House bill) and tell him you oppose SOPA!,” McCain-Feingold would have prohibited that speech or petition.
Because of Citizens United, Google can criticize Congress as it wishes. They can even mention the name of a member of Congress in their speech if they want. If the critics of Citizens United have their way, Google’s criticisms of Congress could become a criminal act.
The Age of Hayek?
Gallup has a new poll that shows “Fear of Big Government at Near-Record Level.” The headline might also have been “Fear of Big Business Falls by 20 Percent in 2011.” Or perhaps “Fear of Big Government Has Risen Sharply during the Age of Obama.”
This is not good news for Progressives in general. They need for the government to be trusted, if not loved, to undertake great projects in pursuit of a presumed public good. But the real losers here are Occupy Wall Street. The Gallup survey was done in late November and early December of this year. After several months of attention to OWS, the fear of Big Government has gone up while the fear of Big Business has dropped. OWS is not moving public opinion in its preferred direction.
Does Mandated Disclosure Help Voters?
After the Citizens United decision, mandated disclosure of campaign spending has become the major tool of campaign finance reformers. The Supreme Court has validated forced disclosure as a way to inform voters about candidates. Knowing who supports an advertisement supposedly gives a voter a cue about a candidate’s positions and outlook. If labor unions support a candidate, a voter who supports (opposes) unions can then vote for (vote against) the candidate supported by the union.
David Primo reports on his research showing that voters do not use disclosed information in this way. He also finds that the disclosure process makes it harder to participate in politics.
For some time I have suspected that electoral players want disclosure so they can attack those who fund their speech favoring their opponents. Such attacks presumably make such fund (and such speech) less likely. Disclosure is just a weapon in the ongoing electoral struggle.
Orszag and the People
Former OMB Director Peter Orszag has written a provocative New Republic essay calling for less democracy. Most people, myself included, would be inclined to dismiss his effort as an obviously self-serving call for rule by progressive experts. I believe that temptation should be put aside. After all, in 1789 and afterwards, the American people have not created a democracy but rather a republic. So we should address Orszag’s arguments on their merits while asking whether he is proposing a “Republican remedy for the diseases most incident to Republican Government.”
A bit of historical context offers a way into Orszag’s argument. Progressives did favor expert influence over government, but they also plumped for direct democracy; the referendum and the initiative were progressive reforms. They believed direct rule of the people would bypass corrupt and “reactionary” state legislatures who refused to enact progressive legislation. Orszag does not propose reforms introducing direct rule; he is thus left with the expert aspect of the progressive legacy. Why not more democracy?
The people are dysfunctional. Orszag reasons that legislative gridlock does harm to the nation and will do more in the future, that gridlock is rooted in polarization of the masses and not just of elites, and that polarization arises from people living and interacting only with people who share their views. Representatives in DC reflect these divisions. The problem, according to Orszag, is not in our agents but in ourselves. In response, we should sever the link between policymaking and the problematic people.
You need not equate the voice of the people with the voice of God to find Orszag’s analysis unconvincing. Is it really so surprising that the people are so polarized? For decades, we have lived under a redistributive government. Your gain is my loss and vice-versa. The politics of redistribution also foster a rhetoric of blame and contempt. You are the cause of my problems and vice-versa. In the zero sum struggles around the redistributive state, people begin to see each other as friend and enemy. Big Government leads to Big Polarization.
Orszag offers three general ways around the people and their representatives: automatic policies, backstop rules (like the sequester governing the supercommittee), and institutions more independent of the dysfunctional people. I focus on the last of these.
Is the independent judgment of experts what we need? Policies are means to ends, and the latter are tied to values. For example, Cato experts often argue for a policy of deregulation to limit government and thereby increase individual liberty. Experts have special knowledge about means not ends, about the effects of policies and not about the worth of values.
However, Orszag might say, Americans agree about ends/values. Everyone wants more, not less, economic growth. Politicians (and their constituents) bicker over the policies needed to bring growth; in contrast, experts agree about the effects of policies. If we turn over policy to experts, we will get policies that achieve the ends everyone wants. Is this true? Consider for a moment the expert debates about the stimulus, the most recent policy designed to renew growth. Would you say those debates reflect expert agreement or a polarization not unlike what Orszag ascribes to the public?
Orszag’s case for more independent institutions cites policies that involve ends as much as means, values as much as facts. Tax policy might be given to a board of independent experts similar to the Federal Reserve. But making tax policy requires making tradeoffs between liberty and equality (among other values). Why would a board of experts have special knowledge about the proper tradeoff between those two cardinal values? In fact, mainstream economics assumes such values and their proper relationship cannot be known. Hence, economists begin with exogenous preferences which are not a matter of knowledge but rather, of will. The most important decisions about tax policy are simply not within the competence of experts.
You might think that Orszag takes as his slogan “taxation without representation” but that would be unfair. He does allow that the legislature could overrule his various independent institutions and their judgments about ends and means. But the experts would set the agenda, and political scientists have found that those who set the agenda usually win the policy battle. So actually Orszag is proposing “taxation (usually) without representation.” The original Tea Party Patriots of 1773 might wonder: has it really come to this?
Orszag does have a point. Americans do deeply disagree about public ends and means and thus about the size and scope of government. Why must all those disagreements be resolved in Washington? Must we always be at one another’s throats? Actually, no. The same political tradition that promised “no taxation without representation” also endorsed a division of power between national and subnational governments. Federalism offers an chance for people who deeply disagree about values to live at some distance politically from one another. We are too centralized and too much a nation for the people that we have become.
But we can and should deal with this challenge by drawing on, not repudiating, American political culture.
Update: I did a podcast on this topic with Cato’s Caleb Brown.
Term Limits and Popular Government
Rasmussen Reports has a new poll indicating 71 percent of the public want term limits for members of Congress. This finding is nothing new. Strong majorities have supported congressional term limits for the past two decades. What about before that? I decided to take a look at the Gallup polling going back more than six decades. Here’s what I found.
The first polling on the topic in 1947 showed 46 percent supporting limits for the House (48 percent opposed) and 52 percent favoring them for the Senate. Eight years later Gallup found support had fallen to 38 percent for senatorial limits. In 1964-5, from 48 to 50 percent favored term limits for members of both chambers. The late 1960s and early 1970s saw weak results for term limits. In 1969, 43 percent favored House limits; two years later a survey showed support for Senate limits had fallen to 39 percent.
And then everything changed.
Surveys in 1977 and 1981 showed about 60 percent support for limits on the terms of members in both houses. Later in the 1980s, support went up toward 65 percent or so. By 1994, Gallup found its first 70 percent response in favor of congressional term limits. A year later, the number was 67 percent. Thereafter, Gallup apparently did not poll on the topic, perhaps because the Supreme Court took term limits off the political agenda.
Still, in 2003, an NBC/Wall Street Journal survey found 67 percent of the public thought term limits were a good idea. A year later a Fox News/Opinion Dynamics poll found 78 percent supported the idea. Against this background, the Rasmussen poll makes perfect sense.
People sometimes argue that popular changes to the Constitution or the rules of the political game can reflect momentary passions that pass, leaving only unwise policies. This concern is not without merit. However, if the public indicates a strong and growing desire for change over more than three decades, shouldn’t a republican government follow that settled and presumably considered desire? I mean, republican government is government by the people, right?
A Look at the Balanced Budget Amendment
As the Balanced Budget Amendment once again comes to the front of political debates, I wondered what David Primo thought about the return of the BBA to public notice. Primo is the author of Rules and Restraint: Government Spending and the Design of Institutions.
John Samples: David, you have studied the history and politics of budgeting by Congress and the federal government. Your studies led to your book Rules and Restraint which, as I recall, was somewhat skeptical of the constitutional solutions requiring a balanced budget. What did you think of the importance the House Republicans attached to the Balanced Budget Amendment?
David Primo: Supporters of the BBA are certainly correct that constitutional restraints on Congress will help restore fiscal discipline to the federal government. It’s unfortunate, however, that the BBA has become so politicized. Without buy-in from Democrats, the chances of ratification are nil. I understand the fear of compromise here; we don’t want a poorly constructed rule placed into the Constitution, after all. That said, I’d love to see serious reformers like the Gang of Six get together and craft a constitutional budget rule that has a chance of being ratified. Rep. Justin Amash has also introduced an amendment that is a twist on traditional BBA proposals, and it deserves to be part of the debate.
A Turning Point?
Greg Sargent cites a CNN poll question:
As you may know, the agreement would cut about one trillion dollars in government spending over the next ten years with provisions to make additional spending cuts in the future. Regardless of how you feel about the overall agreement, do you approve or disapprove of the cuts in government spending included in the debt ceiling agreement?
Approve 65
Disapprove 30
Sargent continues:
Sixty five percent approve of deal’s spending cuts. But it gets worse. Of the 30 percent who disapprove, 13 percent think the cuts haven’t gotten far enough, and only 15 percent think the cuts go too far. One sixth of Americans agree with the liberal argument about the deal.
About 20 percent of Americans self-identify as liberals. This would suggest that all non-liberal Americans and one-fourth of self-identifying liberals approve of the deal or think the cuts have not gone far enough. It could also mean that some non-liberal Americans disapprove of the deal and more than one-quarter of liberals approve of it. Either interpretation will not encourage those who believe government should be larger.
Still, the political agenda is defined as cuts, and the public seems willing to go along. 2008 seems like a generation ago.
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