Tag Archives: First Amendment

How the Roberts Court’s Freedom of Speech-Dollars Can Save American Democracy (Unintentionally)

The Supreme Court’s recent decision in McCutcheon v. FEC continued the trend of rolling back limits on how money is used in elections. Today, money as free speech can be regulated only to stop quid pro quo corruption, “a direct exchange of an official act for money.” Those speech-dollars can do almost anything under the court’s ever-narrowing definition of corruption.

Those that support the decisions expanding the freedom of speech-dollars may be disappointed to see how it could be used to actually improve American democracy by increasing voter participation. Doing so could lead to more populist electoral outcomes that would eventually lead to electoral reforms that again limit the power of great wealth over our electoral process. (Yes, it is amusing to consider that to close the loophole we must exploit it.)

Supreme Court Campaign Finance Citizens United McCutcheon

from Vox

Under the Court’s current interpretation,  the First Amendment gives you the right to express your political beliefs through the act of giving your money to candidates for office (and other groups) that support the same (candidates or beliefs).  What if you were to spend speech-dollars in the electoral process for the following belief: “the republic is best served by maximizing voter turnout”?  The Court is also repelled by content-based restrictions on speech.  One could put those speech-dollars behind efforts to support the act of voting instead of the act of running for office.  You support voters, not candidates.

You support voters and want to spend money to help more of them vote. Yes, you could fund traditional “get out the vote” drives. However, under McCutcheon and its ilk, you can get more creative (so long as you avoid quid pro quo corruption).

The federal statute regulating “expenditures to influence voting,” 18 U.S.C. § 597, is now partially unconstitutional under the new precedents protecting free speech-dollars with the First Amendment. The statute states:

“Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate; and whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote—shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.”

Don’t let that scary language fool you: similar sanctions used to be in place for persons exceeding various campaign donation limits. Under the Roberts Court version of American democracy, the constitution gives money much more freedom.

An individual or organization could now offer to pay, say $5 million, to one randomly selected person who voted in a given election. A similar plan was on the ballot in Arizona about a decade ago, but turned out to be ahead of its time. It was defeated, surprise, in a state dominated by a party that, putting it lightly, doesn’t think everybody should vote.

A follow-up post will examine what a privately-funded “American Dream Prize” could look like under the new electoral system that protects freedom of speech-dollars — and you can believe the folks that love Citizens United & McCutcheon will absolutely loathe the “American Dream Prize.”

Which Crisis is More Bleak and Irreversable: Campaign Finance or Climate Change?

Climate Change Campaign Finance

Here’s an interesting conundrum that popped into my head the other day:  Which Crisis is More Bleak and Irreversable:  Campaign Finance or Climate Change?

Climate Change Campaign Finance

Campaign finance impacts the state of our American democracy; climate change concerns the livability of our planet.  It could be we are past the point of no return on both of them.

Campaign Finance.  It still costs a lot of money to run for office in America.  We attempt to regulate how candidates get and spend campaign cash in order to protect the idea that citizens are equal participants in our republican democracy.  This fundamental goal mildly conflicts with First Amendment principles, and we get to watch the Constitution eat itself.  Since McCutcheon, with the Supreme Court no longer recognizing everyday Americans’ understanding of corruption, wealthy donors can freely purchase influence by donating to every member of Congress and — just to be sure — every one of their general election opponents.  Lest we forget, the impact of Citizens United continues as unlimited “independent” expenditures are permitted.  Candidates’ official campaign organizations no longer have to bear the entire burden of the campaign; let some “independent” group produce and pay for that attack ad.

What are the odds of halting or reversing the slide from American democracy to plutocracy (no, it doesn’t mean “rule by Pluto,” though we might be better off under the control of a fictional cartoon dog than a handful of sociopathic 0.1%ers)?  Well, Justices Scalia, Thomas, and Kennedy are getting old, and it looks like Democrats will control the White House for the next generation.  However, I wouldn’t be surprised to see a Democratic president cave in and nominate a “confirmable” choice for a Republican-controlled Senate to confirm.  If the Democratic president does grow a spine, we could be in for some kind of constitutional crisis.

Climate change.  My god, they’re still arguing over whether it’s real! Every time it snows, some dumbass will remark, “So much for global warming.  Har-har.”  The people/corporations with the most power got that power because the status quo worked out pretty well for them.  Changes dramatic enough to make a difference, won’t look good to their short-term bottom line.  After all, they’ll be dead in 60 years, why should they care if the rest of us have to deal with weekly Hurricane Sandys?

Can climate change be fixed?  Scientists have stated that the safe level of CO2 in the atmosphere is 350 parts per million.  We’re over 400 this month.  It’s a global problem.  It is going to be hard to get all the industrialized countries on board, especially the recently developing ones.  China wants a chance to live like Americans, too.  I’m skeptical that we’ll be able to recruit the will to do enough and that when we do the damage will not have already reached some kind of tipping point (I’m looking at you so-called permafrost).

Well, both campaign finance and climate change are nearly unresolvable.  If I were to bet, I’d say we figure out how to manage our democracy just in time to watch Miami flooded.  It’s just as likely we’d be snapped back to sanity by some other unrelated natural catastrophe, like an asteroid strike or massive volcanic eruption.



Sorting Out the Newest Contestants on America’s Next Top Presidential Scandal

“America’s Next Top Presidential Scandal:” Worst. Show. Ever. So the second term is about defining your legacy and having your enemies do everything they can to tarnish it. In the past few weeks a lot of Scandal Spaghetti has been thrown against the wall. Overall, these allegations are pretty tame compared to what the last two guys actually did. Here are the contenders, and no, I refuse to stoop to being one of those idiot journalists who thinks it’s cute to tack on a -gate to everything. (See rant in previous post.)

Benghazi. The administration is getting heat for trying to spin the motivation/identity of the attackers. The right is in a tizzy over this one because it touches on terrorism and Hillary Clinton. Even Krauthammer thinks they are wishing too hard for this scandal to be huge, and are perhaps overhyping it.

IRS v. conservative “nonprofit” groups. Certain groups got additional scrutiny in their attempt to attain tax-exempt nonprofit status. Let’s see, we have groups that want to eliminate the IRS applying to the IRS for special treatment. What could possibly go wrong?

DOJ snooping on AP reporters. The Justice Department had a subpoena and was investigating leaks by officials to reporters. I see how this could affect the First Amendment rights of reporters to be able to provide confidentiality to their sources. The source might not want to contact a reporter if the reporter’s phone records could lead investigators back to him. Why didn’t the DOJ just get the records of the people they were investigating. “Hey, look here. According to his phone record, Mr. Leaker called this number, which belongs to a reporter at the AP.” The same facts would be discovered without damaging the reporter’s rights or reputation. Seems like this scandal is about laziness or incompetence. Of course, what the scandalmongers are really looking for is some kind of coverup.

The Marine and the Umbrella. The outrage! How dare a Marine hold an umbrella over the head of the president? I wouldn’t be surprised to hear a scandalmonger chime in and point out that the umbrella is black, and “what kind of message is that sending? Why does Obama have a deep-seated hatred for white umbrellas? And why isn’t the umbrella wearing a flag pin?”

Sad Obama

On the Wisconsin Sikh Shooting: I’ll Not Say, “These Shootings Make Me…

For the second month in a row we’ve got a mass shooting breaking into the headlines. On Sunday, a gunman shot 6 people at a Sikh temple in Wisconsin before justice was swiftly served and he was removed from the gene pool. Reports indicate this bozo had white supremacist ties (he was even in a white power rock band). So it looks like this is not necessarily the work of an idiot-bigot who mistakenly thought he was shooting at Muslims. I’m willing to bet those skinheads probably don’t like Sikhs either.

Again, like America’s litany of school shootings, here’s another case of a lone wacko causing more damage than al Qaeda has in America since 9/11. Yet we’re still spending the lives of our soldiers and billions of dollars each year chasing a couple hundred of those guys around the world, and killing others in the process.

I wonder how the gun control debate will develop following this case. Unlike the large arsenal in the Aurora shooting, this guy had only a 9 mm handgun and some extra clips of ammo. No assault rifles were present. It’s hard to see an angle for gun control advocates, except for maybe seeking to impose more mental health screening for gun permits. It’s a futile cause simply going after a handgun ban.

I predict you might even hear some commentators trampling over the First Amendment on their way to reigning in the Second Amendment. They might call for limiting someone’s ability to purchase guns based on membership in certain groups or based on the content of certain statements they have made. Under the Constitution, you have a right to possess immoral beliefs, but can you can lose rights for having a range of mental conditions. Yes, evil is more protected than crazy.

Mental illness is such a broad category. Where do you draw the line for which diagnosis loses 2nd Amendment rights? How long before a certain political party comes out and says, “Well, if we can’t trust you with a gun, we probably shouldn’t trust you with a vote?” It might be more effective to approach the issue of reducing the number of armed mentally ill by focusing on promoting access to treatment while reducing the stigma rather than attacking the gun ownership half of the equation. It’s more humane and certainly may be easier logistically, and we wouldn’t risk creating too broad a ban.

Lawmakers should tread carefully here. Perhaps because mental illness is such a broad category there is legitimate dispute in academic circles about the usefulness of focusing on the mentally ill in preventing incidents of gun violence:

[S]urprisingly little evidence supports the notion that individuals with mental illnesses are more likely than anyone else to commit gun crimes. Many scholars hold the association to be overstated. According to Columbia University psychiatrist Paul Appelbaum, less than 3—5% of American crimes involve people with mental illness, and the percentages of these crimes that involve guns are actually lower than the national average—particularly when alcohol and drugs are taken out of the mix. For Appelbaum, the focus on so-called mentally ill crime obfuscates awareness of a far more important set of risk predictors of gun violence: substance use and past history of violence.

It may be hard to accept, but when dealing with constitutional rights we should be sure to focus on a much smaller portion of the mentally ill (those who have displayed actual evidence of violent behavior). This will be difficult to regulate because it seems you need an actual diagnosis and/or adjudication before it can be entered into any background check system. Perhaps it all comes down to our freedom to own guns limiting our freedom from fear of random shootings.