Money, Speech, Lots of Money

At Volokh Conspiracy, Eugene posted a video of himself (well, his thoughts and voice anyway) made by the Federalist Society to explain the virtues of Citizens United.

Some might call this a rather facile, even simplistic, discussion of the issues, but then, it’s propaganda.  When attempting to persuade people (remember, election time is just around he corner again) that corporations, funds, trusts, are entitled to spend money to provide their side of the issues, they aren’t obliged to either give a fair presentation or the other side’s views. It’s their dime, and so they get to offer their view.

And the point, I suppose, is to rally the faithful around the moral right of legal entities to use their cash on hand to Influence our elective choices. If so, then it has to have cool graphics and not require much thought, since it would otherwise fail to displace Real Housewives of New Jersey in the minds of believers.

Of course, the complaint is that videos such as this seek only to maximize the utility of wealth in controlling popular thought, and therefore the democratic process.  The alternative view is that the ability to use funding to get out a message might be a fair component of the political process,

The video made me wonder how, if Eugene’s logic holds, it might be modified to reflect the alternative concerns.  And then it dawned on me: wherever Eugene says a thousand dollars, replace it with ten million dollars.  Except, of course, when it comes to the cost of retaining defense counsel, it changes things.

And where Eugene says “you can’t spend more than a thousand dollars,” replace it with you can’t spend less than $10,000,000.  Because nobody is seriously suggesting that a thousand dollars will do the trick, and once we start talking real money, the problem becomes a little more apparent.

The problem is one of extremes, since ordinary folks can’t afford to put together cool commercials and pay for television air time, leaving it to those with great wealth.  Of course, that doesn’t stop others from talking to their neighbors and explaining their political views, or the mass of Americans from educating themselves politically so they don’t easily succumb to nonsensical political hype.

Does that change the video?  It works for me.

14 comments on “Money, Speech, Lots of Money

  1. Jim Majkowski

    How did the joke go? Would you have sex with me for $1 million? Yes. How about $10? Do you think me a whore? We’ve established that; now we’re negotiating price.

    As for substituting, $10 Million for $1 thousand, how about talking the price of buying and maintaining one’s own newspaper or network? I would like the opponents of Citizens United to explain to me why it is so much more evil to buy advertising time (restricted by the voided statute) than to own a “media outlet” (exempted from the scope of the same statute) and use it to broadcast one’s “protected speech.” Why is a commercial bought by, say, the Koch Brothers, so much more pernicious than a “news program” aired on Fox News, MSNBC, Aljazeer America, or whatever?

    1. SHG Post author

      I don’t see a commercial bought by the Koch Brothers any more pernicious than one bought by Soros. But I do see the point of how the ordinary citizen’s voice is marginalize by the ability of Super PACs to outspend them. Does this mean the rich should be denied the right to use their wealth to spread their message as far and wide as they can? It’s no more a crime to be rich than it is to be poor (with apologies to Reb Tevya).

      But it is a conundrum, and to ignore that enlightens no one.

      There is, however, one issue that does merit caution: When corporations controlled or influenced by foreign entities fund Super PACs to influence American elections. That presents a hard issue that isn’t adequately addressed.

      1. Jim Majkowski

        My communications skills leave much to be desired. It’s not whether the Koch Brothers or Soros is the more pernicious. It’s whether those who have to buy advertising are more pernicious than “media outlets.” As I argued, the prophylactic statute voided by the excoriated Citizens United exempted such favored entities from its scope.

        As for who shall be permitted to present arguments to the voting public, even including “corporations controlled or influenced by foreign entities fund Super PACs to influence American elections,” oughtn’t we be cautious about empowering whoever is currently in executive office to grant or withhold such permission?

        Besides, since when have Americans held a monopoly on wisdom?

        Here’s something I stole:

        “Campaign finance laws, laws against hate speech, mandated disclaimers in political advertising — all these may seem like good ideas, but they come with a cost. The cost is allowing government (courts, bureaucrats, legislators) to get the idea that it’s okay to restrict what people say.

        “It isn’t.”

        1. SHG Post author

          The press holds a unique place in our Constitution, regardless of whether you think it should or not. Corporations (other than media corporations, of course) are not the press. It may be fun to argue the lack of differences, but until the Constitution is amended, media outlets get special treatment.

          1. john

            No, it does not hold a special place. Freedom of the press does not elevate “the press” as a group of people, it protects “the press” as in the printing press the physical analog of “speech”

            1. SHG Post author

              That’s the uber originalist view, though there has been an awful lot of first amendment cases since then that didn’t get hung up on whether a printing press was involved, and if you want to adhere to that view, then there hasn’t been any freedom of the press for quite a while now. Personally, I think the efforts to connect the 1st Amendment free press to the physical printing press is batshit crazy, but then I wasn’t there at the time.

          2. SHG Post author

            First, when you start with “AFAIK,” bear in mind you aren’t a lawyer and AFAIK doesn’t mean a whole lot. Second, think New York Times v. Sullivan. Third, just because Scalia “suggested” something in Citizens United doesn’t make it so, and his interpretations tend not to be the mainstream for the last hundred and fifty years or so. The problem when you read only a handful of select cases, and think you have a jurisprudence based on that, is that as far as you know is not very far, and not far enough.

            Now, while it may be true that anyone (or entity) has the potential to be the press, it doesn’t mean every person is the press because they express their opinion. The 1st Amendment also protects freedom of speech, but it’s a different clause and a separate right from the free press.

          3. SHG Post author

            Sigh. There are other aspects of Justice Brennan’s decision that, had you the interest and ability to understand, would have explained it to you. But you apparently prefer to prove your point and remain wrong. Whatever. It’s not nearly as much fun debating the law with someone who has google but no grasp as you think it is. You’ve now put yourself back into the nutjob column.

          4. SHG Post author

            You don’t understand Volokh either, but that isn’t why you’re in the nutjob column. It’s your failure to understand that your reach exceeds your grasp, and yet you have that Dunning-Kruger need to persist. Do you wonder why, given that most readers here are lawyers, they haven’t raised the point you think so monumentally important? But then, it tends not to be in a nutjob’s nature to ponder such questions.

          5. SHG Post author

            You really don’t know how to stop, do you? This was an outlier argument (as noted earlier) accepted by no one, no court, ever, intended to raise an interesting possibility for a law review article that no one had ever before considered.

            But he does not say, nor could he, that this was or is the state of the law since or today, which is what you are utterly incapable of grasping. This is not the law. You’ve wasted enough of my bandwidth and time. You are now done.

  2. Andrew Fleischman

    In the same term, the Supreme Court decided that the government may arbitrarily designate groups as “terrorist organizations” and criminally punish speech that favors them.

    Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)

  3. Matt James

    I’m waiting for the much anticipated follow ups: “Corporations are People, Too”; “Articles of Dissolution are Murder”; and “You Say Chapter 7 Bankruptcy, I Say Court-Assisted Suicide”.

    1. John Jenkins

      Corporations *are* people for a lot of purposes (e.g., they can sue and be sued) but not others (e.g., no 14th Am P or I rights). Legal personhood is a lot more complex than some people want it to be but for as long as business entities (excluding GPs) have been around, the concept has encompassed more than natural persons.

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