Campaign Finance and Free Speech

Because only bad government is possible until we reform campaign finance, I recently signed a petition supporting House Judiciary Resolution 29 (H.J.Res.29).  I asked others to join me or point me to a better approach.  It will be a while before I can do the necessary research to find a better approach – if there is one – so in the meantime this is an anchor for comments thus far.

H.J.Res.29 is a proposed Constitutional amendment that would make the rights extended by the Constitution apply only to natural persons and provides a basis for fundamental campaign finance reform.  It was introduced in the House of Representatives on February 14, 2013 and referred to the Committee on the Judiciary.  It reads:

    `Section 1. The rights protected by the Constitution of the United States are the rights of natural persons only.  Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.  The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.
    `Section 2. Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure.  Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed.  The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
    `Section 3. Nothing contained in this amendment shall be construed to abridge the freedom of the press.’.

The intent of Section 1 is to establish that artificial entities such as corporations do not have constitutional rights.  The intent of Section 2. is to establish that money is not free speech.

My overall view is:

(1) Our government today is unacceptably bad so we must make a substantial change

(2) A more effective form of democracy is possible, e.g., using social media technologies, that was unimaginable 250 years ago but we’re not going to change the current system

(3) Any legislative change will have negative as well as positive effects so we should make the best change we can, then make more based on future results

10 comments on “Campaign Finance and Free Speech

  1. Julie responded: “So while the goal here is clear, remember that there would be collateral repercussions if this particular amendment actually became part of the Constitution. Off the top of my head, section 1 would effect commercial free speech as it pertains to advertising. While this might not seem to be a big deal, we are talking about unlimited censorship by all levels of government. Is that good? As for section 2, remember that not all “entities” are evil for profit empires. Do non-profits still have a voice with their money? I am talking about big money contributors and policy makers such as Sierra Club, Lung Association, American Cancer Society, etc. What do we do about the “good” ones? Should they be treated differently? Just a few items to think about..”

    • My reply to Julie was: “What might be a better approach, Julie? It’s hard or impossible to know for those of us who don’t have legal training. Section1 says artificial entities, unlike natural persons, have no inherent or inalienable rights. It seems right to me that the 1st Amendment, “Congress shall make no law … abridging the freedom of speech” should apply only to natural persons. The freedom of speech of artificial entities already is abridged by laws that prohibit false advertizing. I think we want commercial speech to be less free than speech by natural persons.

      I do not think all artificial entities are evil for-profit empires. In fact, I can’t off hand think of any inherently evil ones, and I don’t categorize non-profits or even labor unions that way. Artificial entities exist because they can fill needs that would otherwise be difficult or impossible to achieve. There’s only a problem if the law treats them as identical to natural persons.

      The fundamental change I want is, as Section 2 concludes, that “judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment”. Modifying the phrasing in Section 2, what I want is no entity, artificial or natural, to “gain, as a result of their money, substantially more influence over the election [or subsequent behavior] of any candidate for public office”. Should that be the focus?”

  2. Julie followed up: “One of the reasons I comment from time to time is that since I have a legal background it is likely that I can give a rounder picture or bring to light something a reader might not have considered.

    In re the commercial speech example, commercial speech is already not as protected as an individual’s rights but I would point to the fact that giving local governments unbridled censorship opportunity is generally not a good thing and that is what that section ultimately calls for. My point was broad and only meant to point out that there would certainly be collateral effects that would likely be perceived as negative.

    Section 2 still troubles me because (putting aside the evil v. good entity language) there are many causes that gather funds from the many to influence candidates for office and those already elected. I would hate to see these organizations lose their effectiveness (and I am not sure how much effectiveness they would have without using their money to support candidates who are like-minded.) I read a very good book once called “Who Governs?”. I don’t know if there is an updated edition (I read it in the 80’s) but it might be worth looking at. It chronicled the history of American politics by who influenced and how during which time periods.”

    • I greatly value the thoughtfulness of your comments, Julie, especially because you have the legal background that I lack.

  3. Paul responded to Julie’s comment about “Who Governs”: “Dahl’s Who Governs was taken on in W. Domhoff’s Who Rules? and frankly I think that Domhoff gets the better of it. WG is considered a classic defense of the American system as having pluralism as its chief virtue. Interestingly, Dahl’s view about democracy in America shifted much more to critical/progressive end of the spectrum over the course of his career and it seems he was somewhat at odds with his earlier work (especially to degree it became something of an apology for the status quo).

    • I’m probably not going to devote the necessary time to read “Who Governs” and “Who Rules”, not in the near future, anyway because there’s so much else I want to explore, but I’ll try to find the gist of the arguments and counter-points.

  4. To my original point about campaign finance reform, Paul responded: “Martin, my problem with campaign reform is that I actually think the system is broken at a much deeper level. To the degree we want to encourage social solidarity or cohesiveness you really need something more like parliamentary democracy (which actually doesn’t really describe Great Britain or France). And frankly the problem isn’t even just the party system, it is that combined [with] a mix of disproportionality/super-majority obstacles to legislation which [makes] our system one of the most inefficent in the world. We don’t live according to majority rule but by consensus and veto. It is no way to run a modern nation state.”

  5. This whole topic is worth a great deal more thought. As it happens, I finished reading Robert Harris’ novel “Lustrum” last night. It’s written as if by Cicero’s personal assistant about Cicero’s political battles and alliances with Caesar, Crassus, Pompey and others. How much of the detail would I accept as true if I’d done more study of that history? I’ve no idea, but the overall picture of a deeply corrupt government feels accurate. That’s a bit of a long way round to saying, I know it could be a lot worse. I just want to do what I can so it doesn’t in fact continue to get worse. And, hopeless as it seems, I do believe we could make it better.

  6. Julie wrote: “Let’s set the commercial free speech issue aside and focus on the meat of the issue or the preferred outcome as stated in section 2. I think it is necessary to be more specific about what exactly we mean by gaining influence as a result of money. Is it the funding of campaigns, the formation of PACs, financial backing of candidates or purchasing of media that is the primary target of reform?

    I think Paul moved beyond the amendment issue and into the political philosophy arena anyway so perhaps we are beyond contemplation of the proposed amendment at this point. I am not a political theorist by a long stretch and so don’t have any thoughts on majority rule versus consensus building and veto. Interesting to think about, though.”

    • Excellent point, Julie. I’ll try to refine the objective when I get back next week. Fundamentally, I want equal representation for all natural persons. That’s impossible fully to achieve in real life because some people always will have more access to law-makers. So the question is, how to get as close as reasonably possible to that situation.

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