People have a right to unlimited spending on their own political speech.
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My argument is that the principle of free speech extends to unlimited speech; unlimited speech requires unlimited spending; political speech is a valid (and, arguably, the most important) type of speech; therefore, people--whether as individuals or organizations--have a right to spend as much as they wish on their own political speech
1) Freedom of speech extends to unlimited speech.
2) Unlimited speech requires unlimited spending.
3) Political speech is the most important type of speech.
4) If (1)-(3) then people have a right to unlimited spending on their own political speech.
5) People have a right to unlimited spending on their own political speech. (From 1-4)
Elaboration on (1):
The First Amendment to the U.S. Constitution states, in part, "Congress shall make no law"abridging the freedom of speech"or the right of the people peaceably to assemble." From this derives, I believe, a preclusion of quantitative restrictions. Politically enforced limits on how much a political actor can say are questionable and may be justified under only the most peculiar circumstances. I defend the extension of this liberty to unlimited speech as an intuitive notion: free speech, prima facie, includes a liberty to speak as much as one may wish, especially if the speech is of a sort critical to the political process. It is democratically antithetical to allow the government to restrict, directly or indirectly, how much political actors may say when engaging in events that serve the democratic process.
Elaboration on (2)
If we hold that (1), it seems only to follow that government ought not to limit access to resources necessary to engage in politics. Primary among these resources is money. As unfortunate as it may seem, contemporary U.S. campaigns demand a great deal of time, energy and money, especially in very contentious races. Moreover, it is highly suspicious for incumbents to pass laws that limit how much potential challengers may spend on their efforts to gain office.
Elaboration on (3):
It is a truism that political speech"expressions that comment on government action and include discussion about public policy, elections, and campaigns"is necessary for a democratic state to thrive. As such an important concept, it is entitled to the strongest protection the First Amendment can provide. Debate over public policy may be limited under only the rarest circumstances; the government must have a strong, persuasive reason to substantiate such circumstances.
Given (1)-(3), it follows that people have a right to unlimited spending on their own political speech. (This is not to be confused with campaign donations, which I treat as a separate category. I am concerned only with money and other resources that people spend from their own treasuries on their own political speech.)
Quantitative limits on speech may be acceptable only if they serve a pragmatic purpose and are implemented in a way that does no collateral damage. Noise curfews, e.g., are understandable in that their restrictions are content-neutral and they serve to respect neighbors' need for sleep, quiet, etc. Another example would be penalizing a group that has littered a park with political leaflets; the penalty is for littering and has nothing to do with the leaflets' content.
The unfortunate fact of the matter is that money is an essential resource in modern day campaigns. Limiting money implicitly limits speech. Limiting speech is justifiable under only the most peculiar circumstances; therefore limiting money for political speech is, generally, politically unjustifiable.
First of all, I'd like to thank parsimony23 for making this debate possible.
My opponent has made an elegant argument, I grant you that. It seems like an inevitable logical progression at first glance. But it isn't as neat as it appears, which we'll see shortly. That being said, before I address my oppponent's arguments, I'd like to ask a few questions for the sake of clarity about the resolution. For starters, how do you define people? This would seem like a no-brainer, but it's quite crucial. Are we talking about indvidual human beings -- is this an argument about Buckley vs. Valeo? Or are we talking about individuals and corporations -- corporations who were quite oddly characterized as persons in the Citizen's United ruling? That's right, Exxon Mobile is a person according to the Supreme Court, and therefore Exxon Mobile can donate unlimited sums of money to Super PACs. Which brings me to another sticky issue regarding my opponent's stance. On the one hand, my opponent says that, "This is not to be confused with campaign donations, which I treat as a separate category. I am concerned only with money and other resources that people spend from their own treasuries on their own political speech." On the other hand, my opponent says, "The unfortunate fact of the matter is that money is an essential resource in modern day campaigns. Limiting money implicitly limits speech." From this the only conclusion one can draw is that my opponent is saying that campaign contributions of any size are protected by the First Amdendment. One can't have one's cake and eat it too, and I ask my opponent to be clear and consistent on this point. Are campaign contributions protected as "unlimited" speech by the First Amendment? Or are we only debating about SuperPACs and "charitable" organizations that exploit tax loopholes to advance political messages? Oh, and what about lobbying firms? It's absolutely crucial that both sides in this debate know precisely what we are arguing about.
Moving on to my opponent's arguments, here is an excerpt from my opponent's logical proof:
"1) Freedom of speech extends to unlimited speech.
2) Unlimited speech requires unlimited spending."
Now if a single link in this proof falls apart on further inspection -- especially if that link is integral to the overall argument, then the proof collapses and along with it, so does my opponent's case. The most vital link in this proof is from 1 to 2. Even when we accept that freedom of speech extends to unlimited speech (which, however idealistic, isn't entirely true -- incitement to violence is one type of speech that is limited; that being said, 99.9% of the time speech is protected by the First Amendment) it does not follow that unlimited speech requires unlimited spending. As Professor Burt Neuborne put it, there is a difference between the "content' of speech and the "volume" of speech. When individuals or corporations are spending millions of dollars on their speech, they are given a much louder voice than people without the means to spend that kind of money on speech. When a small donor class (and there will be more evidence on how small this class is, and how disproportionate it's influence is) is donating most of the campaign cash, these are just a few impacts:
1. The candidates who win the "money primary" -- the one's who are palatable to the donor class and it's interests, are often the only one's who can run successful campaigns.
2. In order to survive (politically) candidates must make deals with the donor class.
3. The donor class also wields disproportionate influence on public opinion, as they can outspend everyone else on saturating the public with their views.
Thus unlimited spending drowns out most of the public, stifles OUR free speech, and serves the rich and powerful.
Cont.1 Unlimited Spending Undermines Democracy
Democracyhas two root words in Greek, and I'm not telling you about them to show off (because the fact is that they are the only Greek words I know) but to point out what democracy really means. Demos -- the people, and kratos -- rule. The fact of the matter is that the people cannot rule when the wallet matters more than the ballot, to paraphrase Tony Benn. Over the last 40 years, the wallet has come to matter more than the ballot, and manypeople have suffered from policies that were implimented because of this situation. And when "unlimited speech" becomes unlimited political spending -- unlimited bribery, in other words, then it poses a threat to our democratic values. One person one vote gives every person the same amount of power. One dollar one vote is far more pernicious because some people have a disproportionate amount of dollars and thanks to their unlimited "speech" they wield highly disproportionate influence over Washington.
Contention 2: Unlimited Spending undermines freedom of speech
When a small elite can outspend everyone else in getting it's message across, the voices of common people are drowned out. See ^.
To answer questions of clarity, the scope of the term "people" that I invoke is a broad one that includes individuals and organizations. Moreover, I use the term "organizations" in a broad sense to include various sorts of groups, including corporations"both for- and non-profit, volunteer associations, and unions, among others. Contrary to what my opponent has stated, the court has never declared such entities people or persons in a robust, ontological sense of the term. There is indeed a concept known as "corporate personhood," but it is a concept used to facilitate litigation in cases that may involve an organization; otherwise the best thing a party suing a group could do is file a separate case against each and every one of the group"s members, e.g., the shareholders of a for-profit corporation, which is burdensome to say the least.
Also, as an historical note, the case of Buckley v. Valeo did not invent the concept of corporate personhood; the notion had already existed for over a century in American law. (See, e.g., Dartmouth College v. Woodward (17 U.S. 518 ) and Santa Clara County v. Southern Pacific Railroad Co. (118 U.S. 394 ).) Also, such groups as those aforementioned are, essentially, assemblies of individuals, entities that are clearly protected by the First Amendment. When a person joins an assembly, he or she does not suddenly lose such liberties as free speech. One of the purposes of assembly is to amplify the voice of people with a common interest.
I should reiterate that I am concerned only with what have been dubbed in legislation (specifically, the Bipartisan Campaign Reform Act, i.e., the McCain-Feingold Act, of 2002) independent expenditures, i.e., money that a political actor may use for its own political speech, not for the political resources of another actor; hence donations/contributions do not fall within the scope of this debate. I"d like to minimize the use of legalese, but I believe this is a distinction worth making.
Also, I do not conflate money with speech, nor does any serious mind on either side of the aisle in this debate, I believe. Money is not speech; it is, however unfortunately, essential to speech insofar as a political actor wants to send its message by some means beyond standing atop a roof and shouting at the top of its lungs.
I do not propose the notion of unlimited speech as an absolute. There are cases in which speech may be understandably limited, e.g., noise curfews and littering laws, but these are exceptions to the rule, not the rule itself. Political speech is arguably the most important type of speech. Government actions that limit it, directly or indirectly, ought to be treated with the highest suspicion.
My opponent invokes notions of "money primary" and "donor class." Unless I misunderstand them, these terms are, at best, rhetorical devices, which I believe have no place here. Yes, democracy is rule of the people, and I believe such rule is enhanced when the government is restrained from manipulating the rules of political campaigns and elections in a way that gives incumbents an advantage. Moreover, I find such legislation rather paternalistic; the fact that a certain politician happens to be spending more than an opponent does not automatically draw more voters"we don"t need the government to hold our hand in an alleged effort to restore equality. We"re not going to be duped by the mere fact that a certain candidate can afford more ads. Take, for example, the surprising loss of Eric Cantor in a Republican primary election in 2014: he spent nearly forty times more than his opponent but lost no less.
I don't deny that money in politics is a very serious problem. I am very concerned about the financial influence of certain political actors. I believe, however, that the proper way to address this problem ought not to entail limiting speech. We ought to focus on empowering the disenfranchised, not disabling more political actors in order to allegedly level the playing field.
A final point worth making--and one which I may reiterate later in the debate because I find it a very important point--is that, despite how seemingly powerful the likes of McDonald's, Wal-Mart, and the NRA may seem, the federal government is that much more powerful. To defer to it the ability to, in effect, control speech--speech that determines the identity of Congress--is a na"ve, dangerous move that gives the government undue power.
Well, this is shaping up to be a very interesting debate. Actually, it isn't only an interesting debate, it is also a crucial one for the future of our Democratic Republic. (Not that it will be decided here on debate.org or anything grandiose like that, but nevertheless, it's a crucial question for us to discuss.) I hope to win this debate in the eyes of people on debate.org, but I also hope to convince my opponent, in case parsimony23 is ever arguing this case in front of the Supreme Court; it would be comforting to know that ol' Pars would be arguing my side of the issue.
Now that being said, I think that most definitional issues have been clarified. Not all of them, however: what exactly counts as the actions of a single political actor? Is my opponent excluding all contributions and donations from groups of organizations to other organizations -- including Super PACS? Well, my opponent says that Corporations are assemblies of individuals (which is a problematic political characterization as we will soon see) but if we accept my opponent's logic, then a PAC or Super PAC representing a group of corporations would also be an assembly of corporate persons, which may not be exactly the same thing as an assembly of individual people ontymologically speaking, but hell, if corporations have the same 1st Amendment rights as the rest of us, why wouldn't groups of corporations in PACs or Super PACs? The scope of this debate would be ridiculously narrow if Super PACs are excluded.
Now on the issue of corporate personhood, my opponent tried to cite precedent: It is worth noting that neither case which my opponent cited was a ruling about corporate personhood. There is, in fact, judicial precedent negating the rights of corporations as citizens or persons who are entitled to equal protection of the laws. See, e.g., Paul v. Virginia, (75 US 168 ) and Munn v. Illinois, (94 U.S. 113 ) ..
The idea that corporations are mere "assemblies of individuals" obscures the hierarchical structure of corporations. When Verizon's executives choose to spend money on a political ad, are they really speaking for all 177,000 of their employees? Do the employees of said company, the people whose labor is necessary for the generation of money going into those ads, do they really agree with the Executives on every matter? Even the ones who want to unionize? Furthermore, does every single stock/shareholder approve of their company's political activities? Are corporations assemblies of individuals? Well, in a sense they are, but if a company can speak with one "voice" on political matters than it would have to be an assembly of like minded people.
"Money is not speech; it is, however unfortunately, essential to speech insofar as a political actor wants to send its message by some means beyond standing atop a roof and shouting at the top of its lungs." Well there you have it: money is not speech! Is it really essential to speech? Is standing atop a roof and shouting at the top of one's lungs the only alternative to spending vast sums of money? I can say whatever I want, looking into my webcam, I can post it on youtube and I can spread my message via social media. I can go to a rally and carry a sign and chant slogans (closest thing to the rooftop scenario, but it has the power of other people doing the same thing). I can write, call, email, or send twitter messages to elected officials. Why is money essential to the speech of other political actors if I can speak my mind without money, and if I don't have the option of burning 100K - 10 milion dollars on the American's for Apple Pie (revolving doors, subsidies, and bailouts) Super PAC? In a true free contest of ideas, my ideas should have just as much weight as Enron's. Extending on Contention 2: Pfizer shouldn't be able to drown out the sound of my speech with it's "speech" (though as my opponent points out, money does not equate speech).
"...'money primary' and 'donor class.' Unless I misunderstand them, these terms are, at best, rhetorical devices, which I believe have no place here". Both terms are quite real. Let us consider the facts, and as we do so, I'll be elaborating on contention 1. There is a money primary before the primaries begin, and half of the money comes from a small class of donors. By August 2015, fewer than 400 families had contributed nearly HALF of all the money raised. In the case of the GOP, more than half of all their money had come from 130 families. . My opponent says we need to empower the disenfranchised, I'm mystified as to how we can do this when the incredibly enfranchised have this much power (without campaign finance laws). My opponent speaks of the might and power of the USFG -- in my mind, a key reason to stop it's domination by an elite.
As for my opponent"s citations, the Court ruled in Paul v. Virginia that insurance is not considered a type of commerce and thus not subject to federal regulation. The Company lawyers had tried to argue that corporations were "citizens" as defined in the Privileges and Immunities clause (Article IV)"citizens, not people. Hence the Court denied corporations citizenship"I decision with which I firmly agree. In Munn v. Illinois, the Court upheld the federal government"s power to regulate private industries. Where the issue of corporate personhood cam up is beyond me.
Organizations can and do speak as a single unit; by what authority, however, does an organization speak for all its members? The answer to this question depends on some rule of consensus. Such a rule would establish the who and what of representational speech, i.e., who is authorized to speak on the group"s behalf. In the case of corporations, e.g., if a majority of the board of directors endorses a particular policy, it becomes the corporation"s formal position. Furthermore, it is consistent with our language to hold that the board"s intentional public criticism of prevailing orthodoxy is corporate dissent. One example of such a situation might be the populist climate of the 1890"s. If such a tumultuous situation existed today, a state might adopt a huge marginal tax rate on corporate income. Were this to happen, a corporation"s board of directors would surely oppose such legislation as an ideological attack on the rich. Given such possibilities, the problem of collective intent becomes more tenuous.
Thus we have a distinction between the authorized intent of a group and the individual intent of its members. The validity of the former does not depend on the unanimity of the latter. While it is perfectly natural for disagreement to exist within corporate ranks, that alone does not disqualify the organization from acting as a dissident. Moreover, such a view comports with how we commonly think of corporate behavior. We do not sensibly assume that any and all constituents of a corporation agree with its official views. So long as the dissident views and actions of spokespersons are consistent with the group"s purpose (e.g., the NAACP"s aim to identify, curb, and eliminate political racism), the legitimacy of the group"s dissidence remains: there is a meaningful nexus between a group"s statements and its governing objectives.
Finally, denying a group--such as a corporation--the ability to speak to this or that extent on the basis of its supposed treasury size is an attack on speaker identity, which requires the highest scrutiny of the court. Such denial also is inconsistent if it extends to all corporations (as the BCRA did, e.g.), since not all incorporated organizations are the giants Wal-Mart and McDonald's; nearly all businesses--from Mom-and-Pop stores to local diners to movie theatre franchises and big box stores--are incorporated nowadays. Consequently the intent behind reform--to limit the influence of money in politics--overextends itself to groups that never were on the radar.
To reiterate, money is essential for any political actor"whether an ordinary citizen, an election candidate, or a political action group. Political events such as speeches and conventions involve a great deal of material costs: technical expenses such as lighting and sound; costs to publicize the event; payments to rent the venue; and airtime expenditures to advertise the event. Even an activity as minor as writing a political blog requires monetary payment (insofar as the blogger wants to use his own domain name). Hence any limit that the government places on resources for speech places a limit on the speech itself. The evil connotation we tend to attach to money-in-politics does not suffice to fairly consider its real role in political engagement.
The Proposition is doing very well for a first debate, and as I said, I would like Pro to come around to my side and argue for it in the Supreme Court, but I must say that the definitions are still vague. In the third round, we still don't know if my opponent defends the rights of Corporations to give to Super PACs; a simple yes or no on this issue would have sufficed.
Regarding precedent, I first noticed Pro doing this, and then I realized I've been doing it too, but have you noticed that each side introduces their cases with the Constitutional principles behind the decision, and then addresses the other side's cases with specific policy situations involved in those cases? Well, my point still stands -- neither case that Pro cites speaks of corporate personhood, and both cases that I cite deny corporations equal rights. It is worth noting that the Privileges and Immunities Clause inspired Bingham to write the 14th Amendment, and both cases that I cited deal deny equal protection to corporations. Paul and Munn were decided before any case that actually grants Corporations personhood.
"The answer to this question depends on some rule of consensus... In the case of corporations, e.g., if a majority of the board of directors..." Well this is rather disingenious. First consensus, which implies that the whole organization agrees on a policy, and then we hear of majority rule, which is basically 50% plus .00001%. Furthermore, is a majority of the Board a majority of the corporation? Not even close! Thousands, sometimes tens of thousands of workers and individual stockholders are left out of the decision making process. This is democratic? Should such an undemocratic institution be able to speak with "one voice" on political issues?
On the issue of mom and pop stores, mom and pop stores, by and large, can't afford to spend very much cash on politics, so it's a moot point. If there is any ban on all corporate spending, then small businesses could be exempted.
" Even an activity as minor as writing a political blog requires monetary payment (insofar as the blogger wants to use his own domain name). Hence any limit that the government places on resources for speech places a limit on the speech itself. " This is an example of the "if one then all" falacy. One cheap method of spending money on speech is not the same thing as hiring hundreds of lobbyists, spending on PACs, Super PACs, etc. One is accessible to nearly all political actors, and one is accessible to nearly no political actors save a few powerful ones.
"The evil connotation we tend to attach to money-in-politics does not suffice to fairly consider its real role in political engagement."
Contention 1: (further analysis) No, it's not a "connotation", it's a political reality. Consider previous evidence (unaddressed by Pro) that 400 families contributed nearly HALF of all the money in the 2016 cycle (circa last year). Furthermore, according to a Princeton study, when only one fifth of the top 10% of income earners support a policy, it get's adopted 18% of the time. When four fifths of the top 10% support a policy, it get's adopted 45% of the time. Furthermore, the study found, "The probability of policy change is nearly the same (around 0.3) whether a tiny minority or a large majority of average citizens favor a proposed policy change (refer to the top panel of figure 1)."  So when we're talking about the bottom 90% of income earners, if 0% of them support a policy change, it'll get adopted 30% of the time, and if 100% of them support that policy, it'll be adopted 30% of the time. In other words we have a minimal if nonexistent causal impact on public policy. This study used data from 1,779 different policy issues that came up between 1980 and 2002. Even before Citizen's United, money in politics was fundamentally undermining our democracy.
Another way of looking at this is that the top 200 politically active corporations spent 5.8 billion dollars a year on lobbying and political donations, over the last five years. They got 4.4 TRILLION dollars in support from the government..
Contention 2: My second contention is also supported by the above analysis. If the bottom 90% of income earners have a "near zero" impact on public policy -- to quote the study, then it is clear that our "speech" (spending) of the affluent few. My opponent is right, political speech is the most important type of speech -- it should have some impact on policy. Well, for most people, it doesn't, which means its rendered useless by our campaign finance system.
Contention 3: The demands of fundraising make it harder for Congress to legislate. Congresspersons are expected (by their parties) to spend 4 hours a day raisng money, and 2 hours a day on committees and the House Floor. More analysis on this to come.
As professors of mine have said themselves, both of the cases I have mentioned have been cited numerous times in cases and articles regarding the speech rights of organizations. I'm not sure if my opponent"s objection is due to misconstrual or simply ignoring the citations; either way there seems to be an impasse regarding legal precedent. The fact that the very term "corporate personhood" happens not to pop up after hitting Ctrl+F does not render the decisions irrelevant.
The term "consensus" is not synonymous with "majority," nor does the former even imply the latter, as my opponent suggests. To reiterate, different sorts of organizations have different ways of making decisions. It would be naive and impractical to expect a large organization to defer to raw popular votes to make each of its decisions. My opponent seems to have missed a part of my last rebuttal on this matter, so let me repeat. There is a distinction between the authorized intent of a group and the individual intent of its members: the validity of the former does not depend on the unanimity of the latter. We cannot sensibly expect the members of enormous groups to agree on each and every one of the group"s policies without question. Again, so long as the group"s views are consistent with its purpose, its dissidence is legitimate.
To suggest that we ordinary folk have "a minimal if [not] nonexistent causal impact on public policy," as my opponent does, is to make a rather heavy, fatalistic claim that is at best, rhetorical; at worst, self-defeating. It we took it to be true then we"d have no reason for civic engagement. Petitioning, protesting, and other means of addressing sociopolitical issues (means all protected by the First Amendment, I should note) all serve to dissent, to complain to the government about decisions it has made with which one may not agree (including the very issue of corporate speech). I highly doubt we are at a point where we can claim such means have reached a point of futility.
As for the matter of legislators being distracted with fundraising, my opponent uses a red herring to evade the issue, which, once again, does not extend to donations. Indeed our representatives spend a disproportionate amount of time trying to get money for reelection, but this issue would not be resolved by campaign finance reform. Indeed, the problem stems in part from reform itself: raising large amounts of money from a greater number of donors with less money each (as would result from reform) would actually increase the amount of time a political candidate must spend appealing to donors.
Citizens United did not cause a massive spike in political spending, corporate or otherwise. Yes, some corporations have made large contributions to a handful of Super PACs, but such contributions are very rare, as verified by the figures from the FEC, Center for Responsive Politics, and the Campaign Finance Institute. Also, the corporations that have contributed to Super PACs are found more on Main Street than Wall Street. Not one Fortune 100 Company has contributed a dime to any of the major Super PACs during the election cycles since Citizens United. The few exceptions there were to this fact were not mammoth contributions or expenditures as feared by catastrophizers of the Citizens United decision. [See Open Secrets List of Highest Grossing Super PACs]
Finally, a rebuttal often made by campaign finance reform proponents--one that my opponent seems to have invoked in this debate--is that the distinction between independent expenditures and campaign contributions is mere hairsplitting: the former is merely one step removed from the latter. This is a dangerous rebuttal that suggests it is wrong that there happens to be some overlap between the opinion of a group of citizens and the agenda of a politician. There is nothing wrong with this--indeed, this is democratic politics in action. To suggest that such overlap is somehow corrupt is, frankly, wrongheaded.
It is antithetical for a republican government to limit political speech, never mind political speech near the time of an election. To bar such speech on account of the speaker's identity calls such restriction only into further questioning. As stated in the case of Buckley v. Valeo, the "concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment" (424 U.S. 1, 48-49). This was among the more incisive remarks that the Court made in its opinion.
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