As reported in Pro-Business Ruling Likely in High Court Campaign Finance Case, it appears likely the U.S. Supreme Court will overturn some federal laws that ban corporate and union expenditures in election campaigns, and some older caselaw that permitted such legislation. Libertarians, and some conservatives, typically have a kneejerk opposition to such regulations based on the argument that such action is protected as “free speech.” In my view, it’s a stretch to classify money donations as “free speech.” Come on. It’s not speech, it’s money. Not that this should matter–it’s not relevant whether the First Amendment includes the “right to donate campaign money” or not–the Ninth Amendment prohibits an implication that just because a right is not included in the Bill of Rights means it is not a right. Further, the primary protection of rights from invasion by the feds was the enumerated and limited powers scheme of the federal government: there is no grant of power to Congress to censor speech, nor to regulate money-donations.
But the state already puts eligibility conditions on who can run for or hold office–age limits and natural-born citizenship limits for President, non-felony status for other seats, US citizen status, and so on. These conditions are not that objectionable since no one has a right to hold office, or even to run for office. Thus, I view (some) campaign finance regulations as a type of condition of holding office. In effect, a limitation on donations to a campaign can be viewed as a rule saying, to a candidate, “If you accept $$ in the following manner, you may not hold this office.” Viewed this way, the regulations are not a limit on the freedom of the donors, but on the rights of the recipient to hold office–but since no one has a right to hold office, this is not objectionable–or at least, not as objectionable as limitations on free speech or the right-to-donate-money.Of course, such reasoning cannot be used to prevent donations of money to an independent group not controlled by the candidate. Those regulations simply fall under the Tenth Amendment (forget about the contorted “free speech” argument using the First Amendment) because the federal government has no power to prevent A from donating money to B. But if A donates money to candidate C, the state can effectively limit this donation by preventing C from taking office if he accepts this donation.
(N.B. for those unable to comprehend narrow points: I am not justifying campaign finance regulations, and in fact am against anything the federal government does except commit suicide. What I am criticizing here is the sloppy “free speech” based arguments against campaign finance laws. For other “contrarian” libertarian arguments, see my Supreme Confusion, Or, A Libertarian Defense of Affirmative Action, A Libertarian Defense of Kelo and Limited Federal Power, and Happy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!.)
{ 22 comments }
Strictly as a matter of constitutional law, Congress does not have the authority to impose additional “qualifications” for holding office. Article I, Section 5 empowers each house to judge the “qualifications of its own members,” but there is no textual support for the notion that such qualifications extend beyond those stated in the Constitution itself, i.e. minimum age.
Article I, Section 4 does allow Congress to regulate the “time, place and manner” of House elections, but again, this does not speak to the qualification of candidates. Nor does Congress have any constitutional authority to impose additional qualifications on presidential candidates.
Article II, Section 1 does confer exclusive authority on the state legislatures to appoint presidential electors, so an individual legislature could impose additional “qualifications” for electors consistent with the article and the Tenth Amendment. Congress, however, is restricted to regulating the time for choosing electors and the day they shall cast their votes.
With these reservations, I concur with Mr. Kinsella’s opinion.
These donations are corporations way of trying to by favors from politicians. Look no further than big banks role in the centralization of the Federal Reserve. If the largest company’s are able to manipulate the politics of this country in their favor, well then it’s not a free-market at all, is it? The limitations should be set, not on the market, but on politicians and the markets’ ability to interact with them in an attempt to stifle competition in their favor. Excellent point Mr. Kinsella
These donations are a way for corporations to try to buy favors from politicians. If corporations are able to manipulate policies, they can effectively “privatize gains and socialize losses” as Mr. Paul put it. Look no further than big banks role in the centralization of the monetary system. If the largest company’s are able to manipulate the politics of this country in their favor, well then it’s not a free-market at all, is it? The limitations should be set, not on the market, but on politicians and the markets’ ability to interact with them in an attempt to stifle competition in their favor. Excellent point Mr. Kinsella
Oliva, you may be right that there are constitutional limits on what additional qualifications Congress can place on officeholders. But then that is the criticism to be made of it–not that it violates “free speech” or the First Amendment.
Amen!
If overturned, these would be activist judges. The laws have already been upheld in prior challenges.
Can a candidate pay a voter for his or her vote upon proof of receipt at the polls? If not, why?
So, what will be next on the restrictions of what can or can’t be bought? Maybe health insurance? How about alcohol, or drugs, or light bulbs, or toilets that flush too much water?
You’re treating the symptoms. The problem is the power of the government official, not the money trying to bribe him.
It’s one thing to place generally-applicable restrictions on donations and expenditures. But campaign-finance regulations are objectionable (as a First Amendment matter) in that they single out donations made for the purpose of campaign speech.
” In my view, it’s a stretch to classify money donations as “free speech.” Come on. It’s not speech, it’s money.”
The major effect of campaign finance reform is to shut out third parties and favor incumbents. Most corporations contribute to both Democrats and Republicans – that way they still have influence regardless of who happens to be in power at any particular time.
The thing that Democrats and Republicans fear most at the moment is not each other but a viable third party. Campaign Finance reform effectively makes this a non-starter.
No money = No Speech
I don’t see the issue at all in terms of individual rights. I see it from a political science perspective, which goes like this: since candidates depend on donations for their campaigns, they are forced to cuddle up to the rich. According to the book Unequal Democracy: The Political Economy of the New Gilded Age by Larry M. Bartels (a Princeton professor), empirical studies have shown that once in office, politicians make decisions in favor, not of those who voted for them, but in favor of those who contributed to their campaigns. So in one stroke you disenfranchise 90 per cent of the electorate. This is obviously not a republic, but an oligarchy.
All this hinky-dinky-parley-voo about the Constitution and minimum government is nothing but twaddle when it is used as window-dressing to hide the ugly reality of American political life: the powerlessness of the many and the privileges of the few. And the only way to change this outrageous state of affairs is to assure full public funding for all candidates, the way they do it in France (see Rich Democracies, by Harold Wilensky).
By the way, I think there are good reasons to limit government’s role in economics, but the argument is totally out of place with respect to politics. The government has the duty to assure that each voter will get the same consideration. If that means rigid restrictions on campaigns, as in France, so be it. Candidates in France get free TV time. They are not allowed to use any props in their speeches on TV, and they have to stick to the issues.
And if we want to get out from under the yoke of the Republican/Democrat alternative, we need proportional representation. That way the Libertarian Party, for example, would have a fighting chance to win office, perhaps in coalition with some other ideological party. That would save us from the morass that presently stifles us.
So there’s no getting around a Constitutional Convention, to sweep away the mildew of centuries and re-establish the Republic on principles of equality, fairness and freedom.
TequilaKid,
Not taking any stand on this (but you don’t think your way forces candidates to cuddle up to the masses they would bribe?), just commenting on how it blows me away whenever an advocate of something wants to convince his audience with: “well, this is what they do in France!”
How’s that system working out for Muslim North African immigrants in living France?
Any democratic system is going to ignore the interests of some of the people most of the time and most of the people some of the time, no matter if candidates are financed by corportations, unions, and wealthy individuals or by taxpayers. The only solution is to reduce the power of the government to interfere with the people’s peaceful business.
Saying that something works well in france is kind of misleading. The european countries (and most of the devved world) owe most of their wealth to extortion of third world countries.
A business relocating overseas because people are willing to work for less is one thing. I mean, if you want to work in a sweatshop because your alternative is farming beans, then go for it.
But the kind of government sponsored slavery in Sai Pan, and many other countries, clearly benefits the G8s.
IMF and USAID have loaned hundreds of millions to “barely functioning kleptocracies”. The result is that these countries are saddled with debt forever and forced to comply with IMF “recommendations” which supposedly privatize and democratize these countries, but really just turn over the country’s natural resources to multinational corporations.
Holding a country accountable for debts taken on by a military dictator is like loaning money to a crack addict, watching him overdose, and then claiming his family owes you money.
Saying that “socialism works in france” is like saying “did you know that everyone can be rich AND equal as long as we screw over 10x as many people?”
Wow, thank you for this information. I did not know that my life would be better if I had slaves.
World Government ftl.
Mr. Kinsella,
You wrote: for those unable to comprehend narrow points…
I find that statement snarky and childish. I send people to Mises.org so they can find some of the best scholarly and professional writing on Austrian Economics. It is hard to bring people to a new way of thinking and to show them a new discipline. I hope that when they get here they don’t feel they have just stepped into a chat room filled with teenagers.
If the reader is unable to comprehend a narrow point, perhaps the problem is with the writing (especially when addressing people who might not already understand what you are trying to express).
I think we all need to be a lot more charitable when expressing our views. No intellectual needs to sink to ad hominem attacks. The thinking man responds with reason.
Peace.
p.s. I think your pieces are usually quite excellent. With the exception of that line, I find this piece thought provoking as well.
[RANT]Tequila Kid, you’re wrong, but I’m also tired, so I’ll make this quick. The Italian Republic has a pure PR electoral system, and has done since the war. It is well known for being the most ridiculously corrupt and obscenely inefficient of the Western liberal democracies. Coalition governments collapse and are formed on a whim in smoke-filled rooms where ‘accountabilty’ and ‘democracy’ are meaningless words. Rabidly extremist Communists and Fascists are regularly represented in parliament, and are often required to shore up the crumbling centre left/right coalitions. The incumbent (and wildly popular) Prime Minister is a billionaire who owns a majority of the Italian media; he is also a lecherous coke-snorting demagogue with Mafia connections and was a member of a Chapter of the Freemasons who murdered two journalists. Seriously, look it up. Now tell me that proportional representation brings ‘equality, fairness and freedom’. The fact is, democracy and politics are inherently corrupt – they deal in coercion, which is immoral. [/RANT]
Fascinating point Stephan, as always. I find your illuminating and often surprising blog entries refreshing and evidence against the accusation that libertarianism is becoming dogmatic and cult-like.
Addendum: actually, ‘accountabilty’ is a meaningless most of the time.
Addendum: actually, ‘accountabilty’ is a meaningless word most of the time.
Damn it all.
Good night.
Thanks Alex. I hear you, but I am so tired of people inexcusably and routinely misconstruing what I write and reading more into it than I specifically mean that sometimes I feel compelled to issues a neon warning.
LightBringer,
On Italy you are absolutely correct…from your angle. You may be interested in an article by Theodore Dalrymple in which he claims that the very situation which you accurately describe is in fact the GLORY of Italy in comparison to places like Britain where officials are not “corrupt” in the common view of such things, but are instead quasi-religious in their devotion:
http://www.city-journal.org/html/11_3_oh_to_be.html
Perhaps, given the nature of people, Italy should be OUR role model. Perhaps the climate is a prerequisite though.
- – - – - – - -
SK,
That’s humans for ya.
.LightBringer ..Various forms of proportional representation exist.italy provides great amo against pr but nations like new zealand(my mother land) have provided stable governments(no snap elections)little corruption.with proportional representation offering the potential for voters to vote for parties that truely represent the ideals they hold not some sick choice between a warlord and a overlord.would limiting how political parties get funded be a problem if voters had the ability to vote for a party that does not get its funds from corporates or unions seeking there own goals.in fact why shouldnt voters have the right to vote on every single bill and be able give that voting right to any one or any party if they find someone or some party they trust.
mpolzkill: That article was fascinating. I too utterly resent the depredations of the British state on every part of our lives, and the way people continue to worship, or at least acquiesce to it. (I live in York though, and the beauty of our architecture is at least equal to any Italian city, bar Rome and Venice)
However, that doesn’t vindicate PR; I could point to pre-WW1 Britain, when we had genuinely good men like Gladstone as PM, and the average men in the street protested *for* Free Trade and *against* tarriffs, but that wouldn’t justify constitutional monarchy. It’s theoretically possible for democracy to produce good results, if the people keep voting for small government, but if is accepted that political action is justifiable, the growth of the state is inevitable.
LightBringer,
Oh, no, no, no, I had tongue firmly in cheek; I don’t endorse in any way the biggest Italian gangsters in Italy (ha ha, I’m just kidding around if any readers are of Italian descent). I was just agreeing with Dalrymple that when gangsters know they’re living by the grace of their host they tend to be more agreeable.
Delighted you enjoyed the article, thanks for your insights, cheers.
Comments on this entry are closed.