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Money = speech? Help me with a hypothetical

tigglon
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1/27/2015 10:22:48 AM
Posted: 1 year ago
This will mostly be of interest to those who feel that money = speech, as conceived by the Supreme Court.

Let's say I would like to spend $10 million to finance a campaign, but I only have $5,000 in the bank.

Has the freedom of my speech been compromised? Most people would say no. I wanted to spend $10 million dollars, but external conditions prevented me from doing so. But that does not mean my speech has been stifled.

But the Supreme Court says that things are different for the wealthy. If they wish to spend $10 million, but are prevented from spending all of if because a law says they can only spend $5 million, their speech has been stifled.

So when I spend $5,000 on political activities, my freedom of speech remains intact -- even though I wanted to spend $10 million.

But when the wealthy man spends $5 million on political activities -- although he wanted to spend $10 million -- that means his freedom of speech has been compromised.
KhaosMage
Posts: 1,475
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1/27/2015 11:20:45 AM
Posted: 1 year ago
At 1/27/2015 10:22:48 AM, tigglon wrote:
First, there are limits to campaign contributions. This applies to groups, like PACs, that are not (supposed to be) affiliated with a particular politician, although they often run parellel. For example, Education America is pro-teacher, so it is likely going to help the DFL, or hurt a GOP candidate with attack ads, but it is not directly endorsing a specific candidate.

This will mostly be of interest to those who feel that money = speech, as conceived by the Supreme Court.

Let's say I would like to spend $10 million to finance a campaign, but I only have $5,000 in the bank.

Has the freedom of my speech been compromised? Most people would say no. I wanted to spend $10 million dollars, but external conditions prevented me from doing so. But that does not mean my speech has been stifled.
Let me answer with a question:
What if I want to protest in the streets, but am stuck at work. Is my speech compromised? No, as your inability to exercise your rights is not relevant to your desire to exercise your rights.

Now, keep in mind my opening and let me ask you this question:
Should it be illegal for me to take that $10 million and produce a commercial endorsing a candidate, without his knowledge?
How about an issue?
How about using that money to organize a grass roots campaign?

But the Supreme Court says that things are different for the wealthy. If they wish to spend $10 million, but are prevented from spending all of if because a law says they can only spend $5 million, their speech has been stifled.

See above.

So when I spend $5,000 on political activities, my freedom of speech remains intact -- even though I wanted to spend $10 million.
Correct.

But when the wealthy man spends $5 million on political activities -- although he wanted to spend $10 million -- that means his freedom of speech has been compromised.
See above.
KhaosMage
Posts: 1,475
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1/27/2015 11:29:27 AM
Posted: 1 year ago
At 1/27/2015 10:22:48 AM, tigglon wrote:
To further this issue, what is an individual (or person)?
Imagine there is a company who will go bankrupt if a certain legal measure is passed (we'll say it is some type of regulation, perhaps forcing a business to now acquire a license).
Should that business be allowed to spend as much money as they are able and willing to address the public opinion? They are not lobbying politicians, just swaying public opinion. Is this not a superPAC?
Fly
Posts: 2,044
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1/27/2015 11:41:14 AM
Posted: 1 year ago
At 1/27/2015 10:22:48 AM, tigglon wrote:
This will mostly be of interest to those who feel that money = speech, as conceived by the Supreme Court.

Let's say I would like to spend $10 million to finance a campaign, but I only have $5,000 in the bank.

Has the freedom of my speech been compromised? Most people would say no. I wanted to spend $10 million dollars, but external conditions prevented me from doing so. But that does not mean my speech has been stifled.

But the Supreme Court says that things are different for the wealthy. If they wish to spend $10 million, but are prevented from spending all of if because a law says they can only spend $5 million, their speech has been stifled.

So when I spend $5,000 on political activities, my freedom of speech remains intact -- even though I wanted to spend $10 million.

But when the wealthy man spends $5 million on political activities -- although he wanted to spend $10 million -- that means his freedom of speech has been compromised.

In your hypothetical, it is not the government limiting your "speech." Having said that, perhaps we can claim that taxation is a violation of our freedom of speech? Things to ponder...
"You don't have a right to be a jerk."
--Religion Forum's hypocrite extraordinaire serving up lulz
tigglon
Posts: 6
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1/27/2015 2:52:58 PM
Posted: 1 year ago
KhaosMage, thanks for responding. I'm afraid that with all of the questions answering questions, I don't quite see the point you're trying to make. But that may be because mine wasn't clear either.

First: regardless of the existence of campaign finance laws, the Supreme Court has explicitly said that a campaign donation is constitutionally protected speech that reform laws cannot inhibit.

My point is that if "speech" is supposed to be a real facility that exists in the world -- not just some legal fiction -- then the Supreme Court's writing on the matter leaves us with an absurdity: If one man's speech is said to be hindered because he wants to spend $10 million, but an external restriction prohibits it -- in this case, a hypothetical campaign finance reform law -- then we would also have to conclude that everybody's speech is hindered who would like to spend $10 million, but cannot, for whatever reason. That the former case may be actionable under the law, but not the latter, is not relevant to that conclusion.
tigglon
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1/27/2015 3:03:28 PM
Posted: 1 year ago
At 1/27/2015 11:41:14 AM, Fly wrote:
In your hypothetical, it is not the government limiting your "speech."

That's right -- and so given current laws, one might be able to seek redress if the prohibiting condition is the government, whereas one would not be able to seek redress in the other case.

And yet the SCOTUS writing on the matter would still require us to say -- even if there is no legal consequence to it -- that everybody's speech has been thwarted if they wanted to spend $10 million but couldn't, for whatever reason.

Remember that the SCOTUS opinions do not say that the only thing that could hinder a person's speech is a (possibly) unconstitutional piece of legislation. Such a proposition would make clear that there is no "reality" to "free speech" -- i.e., it's a mere legal fiction. If "speech" is defined simply as "that which could only be thwarted by legislation," then that would clearly be an absurd and incoherent definition of speech. It would be an admission that it does not refer to any real facility in the world.
Fly
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1/27/2015 3:16:27 PM
Posted: 1 year ago
At 1/27/2015 3:03:28 PM, tigglon wrote:
At 1/27/2015 11:41:14 AM, Fly wrote:
In your hypothetical, it is not the government limiting your "speech."

That's right -- and so given current laws, one might be able to seek redress if the prohibiting condition is the government, whereas one would not be able to seek redress in the other case.

And yet the SCOTUS writing on the matter would still require us to say -- even if there is no legal consequence to it -- that everybody's speech has been thwarted if they wanted to spend $10 million but couldn't, for whatever reason.

Remember that the SCOTUS opinions do not say that the only thing that could hinder a person's speech is a (possibly) unconstitutional piece of legislation. Such a proposition would make clear that there is no "reality" to "free speech" -- i.e., it's a mere legal fiction. If "speech" is defined simply as "that which could only be thwarted by legislation," then that would clearly be an absurd and incoherent definition of speech. It would be an admission that it does not refer to any real facility in the world.

I'm not really sure what your underlying point is. The SCOTUS only rules on what the government can or cannot do when it comes to governance. That is already understood in all of its opinions and need not be stated explicitly all the time. What citizens simply desire and cannot get in their personal business is outside that scope entirely.

Example:

If a certain venue requires a government permit for giving a speech, that, obviously, is a matter of government limits on speech.

If you broke your jaw and are unable to speak until it heals, that is not a matter of government limiting your speech.

I just don't get your point, I guess...
"You don't have a right to be a jerk."
--Religion Forum's hypocrite extraordinaire serving up lulz
KhaosMage
Posts: 1,475
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1/27/2015 3:21:53 PM
Posted: 1 year ago
At 1/27/2015 2:52:58 PM, tigglon wrote:
KhaosMage, thanks for responding. I'm afraid that with all of the questions answering questions, I don't quite see the point you're trying to make. But that may be because mine wasn't clear either.

First: regardless of the existence of campaign finance laws, the Supreme Court has explicitly said that a campaign donation is constitutionally protected speech that reform laws cannot inhibit.

Show me where they said this.
There is STILL, after the decision, campaign finance laws.
Thre is STILL, after the decision, limits to the amount of money you can donate.

The very fact that these laws STILL exist after this ruling (of which these laws weren't even being ruled upon), shows you are confused on the issue.

The issue is, neither you or I nor a millionare can donate money to Hillary Clinton's campagin in excess of $3,500 (I think). However, there is no such limit on raisiing money for a PAC called "Keep the White House Blue", which is only going to highlight Democrats, in this case, only Hillary, but IS NOT PART OF THE CAMPAIGN.

So, the relevant question you need to answer is:
Can I not spend $10 million on a commercial that says Hillary is best for office? If not, why not?
Then, explain why I can't pay you to produce said commercial, since you agree with me, and are getting money from others.

Keep in mind the Citizens United decision was about just this: a political action committee that produced an attack on Hillary Clinton, NOT a campaign.

My point is that if "speech" is supposed to be a real facility that exists in the world -- not just some legal fiction -- then the Supreme Court's writing on the matter leaves us with an absurdity: If one man's speech is said to be hindered because he wants to spend $10 million, but an external restriction prohibits it -- in this case, a hypothetical campaign finance reform law -- then we would also have to conclude that everybody's speech is hindered who would like to spend $10 million, but cannot, for whatever reason. That the former case may be actionable under the law, but not the latter, is not relevant to that conclusion.

I can, in fact, spend $10 million if I want to, if I can raise the money for that direct purpose. So, I don't really see your issue.
tigglon
Posts: 6
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1/27/2015 7:29:14 PM
Posted: 1 year ago
At 1/27/2015 3:21:53 PM, KhaosMage wrote:
At 1/27/2015 2:52:58 PM, tigglon wrote:
KhaosMage, thanks for responding. I'm afraid that with all of the questions answering questions, I don't quite see the point you're trying to make. But that may be because mine wasn't clear either.

First: regardless of the existence of campaign finance laws, the Supreme Court has explicitly said that a campaign donation is constitutionally protected speech that reform laws cannot inhibit.

Show me where they said this.

Buckley v. Valeo equated, without explanation, political contributions and expenditures with "discussion of public issues," holding that "contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."

You're right about the substantial outcome of Citizen's United. But it cited both Buckley and Bellotti to explain why corporations' "speech" would be thwarted by the BCRA.

There is STILL, after the decision, campaign finance laws.
There is STILL, after the decision, limits to the amount of money you can donate.
The very fact that these laws STILL exist after this ruling (of which these laws weren't : even being ruled upon), shows you are confused on the issue.

No... it shows that you're not reading what I've been writing, which is about the Court's incoherent conception of "speech." Contribution restrictions are just the environment in which this incoherence is usually articulated.

I can, in fact, spend $10 million if I want to, if I can raise the money for that direct
purpose. So, I don't really see your issue.

My point is only that the Court's conception of speech would require us to conclude that your speech would be thwarted if you simply could not afford the $10 million that you want to spend. The fact that that "injury" is not actionable doesn't change that conclusion. Remember that the court has never held the preposterous position that speech is something that could only be thwarted by a lawmaker's bill and nothing else.

So my point is that the court's conception of speech would require us to accept one of two impossible conclusions:

The point I'm making is that when the Court rejects limitations on political donations based on the principle articulated in Buckley (and elsewhere), it is relying on a logic that requires one of two impossible things:

1) That the free speech of anyone who wants to spend more than a given contribution limit, but can't afford it, has been thwarted; or,

2) Speech is something that can only be thwarted by a legislator's bill, and nothing else.
tigglon
Posts: 6
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1/27/2015 7:43:27 PM
Posted: 1 year ago
At 1/27/2015 3:16:27 PM, Fly wrote:
I'm not really sure what your underlying point is. The SCOTUS only rules on what the government can or cannot do when it comes to governance.

? That would certainly be an odd situation! No, the courts rule on all kinds of things besides what governments and legislators do. A court can rule that your neighbor violated your rights, and a higher court can rule that that ruling was wrong because the lower court misconstrued the facts of the case. When they make rulings on whether somebody's "liberty" was unjustly violated, they measure the facts of the case against common-sense or previously articulated understandings of what constitutes "liberty."

The same is true of "speech." The judiciary has made clear that it takes "speech" to be a real thing that exists in the world -- not just in a legislative building -- and requires protection.

The point I'm making is that when the Court rejects limitations on political donations based on the principle articulated in Buckley (and elsewhere) -- where speech is simply equated with expenditures and donations -- it is relying on a logic that requires one of two impossible things:

1) That the free speech of anyone who wants to spend more than a given contribution limit, but can't afford it, has been thwarted; or,

2) Speech is something that can only be thwarted by a legislator's bill, and nothing else.

One of these 2 premises has to be true in order for the Court's conclusion -- that expenditures are speech -- to be true.
KhaosMage
Posts: 1,475
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1/28/2015 8:59:11 AM
Posted: 1 year ago
At 1/27/2015 7:29:14 PM, tigglon wrote:
At 1/27/2015 3:21:53 PM, KhaosMage wrote:
At 1/27/2015 2:52:58 PM, tigglon wrote:
KhaosMage, thanks for responding. I'm afraid that with all of the questions answering questions, I don't quite see the point you're trying to make. But that may be because mine wasn't clear either.

First: regardless of the existence of campaign finance laws, the Supreme Court has explicitly said that a campaign donation is constitutionally protected speech that reform laws cannot inhibit.

Show me where they said this.

Buckley v. Valeo equated, without explanation, political contributions and expenditures with "discussion of public issues," holding that "contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."

You're right about the substantial outcome of Citizen's United. But it cited both Buckley and Bellotti to explain why corporations' "speech" would be thwarted by the BCRA.

And you have yet to explain why a person or company should be limited in their actions, abilities, and spending to "discuss public issues".

The fact that you are unable to discuss them (via money) is not the issue.
That is like saying your speech is limited because you are in jail and thus, cannot join a labor strike you otherwise would.

There is STILL, after the decision, campaign finance laws.
There is STILL, after the decision, limits to the amount of money you can donate.
The very fact that these laws STILL exist after this ruling (of which these laws weren't : even being ruled upon), shows you are confused on the issue.

No... it shows that you're not reading what I've been writing, which is about the Court's incoherent conception of "speech." Contribution restrictions are just the environment in which this incoherence is usually articulated.

In your mind, my speech must also be limited because I cannot be in two protests at once. Your issue falsely equates being UNABLE to actually do something (lack of funds) with being DISALLOWED to do something. It is a false equivalency.

I can, in fact, spend $10 million if I want to, if I can raise the money for that direct
purpose. So, I don't really see your issue.

My point is only that the Court's conception of speech would require us to conclude that your speech would be thwarted if you simply could not afford the $10 million that you want to spend. The fact that that "injury" is not actionable doesn't change that conclusion. Remember that the court has never held the preposterous position that speech is something that could only be thwarted by a lawmaker's bill and nothing else.

So my point is that the court's conception of speech would require us to accept one of two impossible conclusions:

The point I'm making is that when the Court rejects limitations on political donations based on the principle articulated in Buckley (and elsewhere), it is relying on a logic that requires one of two impossible things:

1) That the free speech of anyone who wants to spend more than a given contribution limit, but can't afford it, has been thwarted; or,
And they have been thwarted, not by the law, but by their own inherent limitations.

2) Speech is something that can only be thwarted by a legislator's bill, and nothing else.
tigglon
Posts: 6
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1/31/2015 8:52:14 PM
Posted: 1 year ago
Buckley v. Valeo equated, without explanation, political contributions and expenditures with "discussion of public issues," holding that "contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."

You're right about the substantial outcome of Citizen's United. But it cited both Buckley and Bellotti to explain why corporations' "speech" would be thwarted by the BCRA.

And you have yet to explain why a person or company should be limited in their actions, abilities, and spending to "discuss public issues".

It was SCOTUS in Buckley, not me, who claimed that a corporation's ability to "discuss public issues" would be thwarted if there were a law limiting the amount of money a corporation could spend on a campaign.

The point I'm making is that when the Court rejects limitations on political donations based on the principle articulated in Buckley (and elsewhere), it is relying on a logic that requires one of two impossible things:

1) That the free speech of anyone who wants to spend more than a given contribution limit, but can't afford it, has been thwarted; or,
And they have been thwarted, not by the law, but by their own inherent limitations.

Thank you. You have confirmed what I'm saying. The SCOTUS logic is that nobody has been able to exercise their free speech, because presumably everybody would like to spend more money on a campaign than they are able to.

It just demonstrates the foolishness of equating speech with money.