Dispatches from the Creation Wars

Okay, It’s Not All Bad

Just in case you’re getting too depressed about the Supreme Court’s rulings on Monday, I should note that they did get one right in FEC v Wisconsin Right to Life (full ruling here). It was another 5-4 ruling with the same breakdown – Alito, Roberts, Scalia, Thomas and Kennedy in the majority, Souter, Stevens, Breyer and Ginsburg in dissent. But on this one the conservative majority got it right. The ruling strikes down a provision of the McCain-Feingold law that bans all advocacy groups from airing commercials about issues within 2 months of an election. This is an absurd law and a clear violation of the first amendment. I’m disappointed that it was only 5-4, it should be a 9-0 no-brainer ruling. And I have the same reaction to the liberal minority here that I had to the liberal majority in Kelo: I do not understand who anyone who considers themselves a liberal can justify such a ruling. How can a liberal make case that for two months of the year, no advocacy organization can try and convince their fellow citizens to agree with them by airing commercials advocating their position (just as I wondered how on earth the liberal justices could justify upholding the right of big corporations to take property, primarily from lower income people, and use it for their own profit in Kelo). I have a hard time imagining ideas less liberal than those.

Comments

  1. #1 BobApril
    June 26, 2007

    I just skimmed through the dissenting opinion, and I find it fairly persuasive. The main points seem to be:
    1. Big money campaign contributions lead to enhanced access to the winning candidate. This is evidenced in part by the frequency of a single donor contributing to competing candidates. This access is AT LEAST perceived as providing undue influence.
    2. The access and influence given to big money contributors results in a cynical and disillusioned electorate.
    3. This disillusionment is a sufficient threat to the very structure of our representative democracy to provide justification for limiting corporate campaign speech.

    Justice Souter made it clear that the limitation was not an outright ban – the corporations could have used newspapers or other non-broadcast media. He further noted that the non-profit corporation could have stayed within the law by funding the ads from its own treasury, rather than funneling cash from business corporations. He also made it clear that the commercials were not merely advocating a position on an issue, but directly linking that position to an election, and thus supporting a candidate.
    It looks to me like the law is designed to limit the interference of CORPORATE persons into the democratic process. Since they aren’t supposed to get a vote, I tend to agree. I found the argument very persuasive.
    I also agree with the people who say that money, like water, will find a way – but I can’t fault the dissenting justices for trying to shore up the dam.

  2. #2 Ginger Yellow
    June 26, 2007

    How can a liberal make case that for two months of the year, no advocacy organization can try and convince their fellow citizens to agree with them by airing commercials advocating their position…

    That’s pretty much the situation in the UK 12 months a year. You’re not allowed to advertise if your main aim is “to influence public opinion on a matter of controversy”. It’s bonkers.

  3. #3 Ginger Yellow
    June 26, 2007

    Just to be clear, that only applies to TV and radio advertising, which are governed by the Communications Act 2003. You can do political ads on billboards, in newspapers and in cinemas, although charities are subject to their own restrictive set of rules on political advertising and all factual statements must have supporting evidence.

  4. #4 MartinM
    June 26, 2007

    …charities are subject to their own restrictive set of rules on political advertising and all factual statements must have supporting evidence.

    Presumably that applies only to politics?

  5. #5 Ginger Yellow
    June 26, 2007

    Not at all. Any unsubstantiated claim in an ad can be challenged. Technically the government regulator Ofcom is now responsible for regulating misleading advertising, but it has delegated its responsibility to the Advertising Standards Authority, an self-regulating industry body. Here‘s the relevant section of the ASA code for TV ads:

    5.1
    DEFINITION OF MISLEADING ADVERTISING
    No advertisement may directly or by implication mislead about any material fact or characteristic of a product or service
    5.2 CLAIMS
    5.2.1 Evidence
    Licensees must obtain adequate objective evidence to support all claims
    5.2.2 Implications
    Descriptions, claims and illustrations must not imply attributes, capabilities or performance beyond those that can be achieved in normal use
    5.2.3 Qualifications
    All important limitations and qualifications must be made clear.
    5.2.4 Use of the word ‘free’

    (a) Advertisements must not describe an offer as ‘free’ if there are costs to consumers other than actual postage or carriage, non-premium rate telephone charges or reasonable travel required to collect the offer. Advertising must make clear the extent of the consumer’s liability for any costs
    5.2.5 Guarantees
    Advertisements must make clear significant limitations to an advertised guarantee
    5.2.6 Environmental claims
    Advertisements must not make unsubstantiated claims about environmental impact
    5.2.7 Animal testing
    Claims that a product has not been tested on animals are unlikely to be acceptable

  6. #6 tacitus
    June 26, 2007

    Whichever way you cut it, the obscene amount of money swilling around the U.S. political trough is a far greater threat to democracy than some minor restrictions to the purist position that money, including corporate money, is somehow free speech.

    The war of ideas is rapidly being subsumed by the war of who can raise the most cash. British election laws severely restricts the amount of spending an individual candidate, to about $8,000 (yes, eight thousand dollars!) and over all the amount of money spent in 2005 was about $80 million.

    That compares with over $1.42 billion spent in the U.S. elections in 2006. In fact, the British elections could have been funded by what American lawyers alone raised, with tens of millions left over!

    Yet, for all the severe restrictions on the amount of spending allowed in British elections, there is no massive outcry that anyone’s free speech is being curtailed. Indeed most people, including the politicians themselves, think the spending limits are good for democracy.

    (Just think how much more work a congressman could do on behalf of their constituents if they didn’t have to spend months raising millions of dollars every two years.)

  7. #7 tacitus
    June 26, 2007

    Correction: the total amount of spending, from all sources, in the 2005 British election was just over $100 million, not $80 million. But the U.S. legal industry could still have covered that amount :)

  8. #8 Ginger Yellow
    June 26, 2007

    Tacitus, I can see arguments both ways. I don’t buy the free speech absolutism of the Supreme Court, but on the other hand I think the UK takes it to the other extreme. I think you could get rid of much of the obscenity and distortion of the US presidential election simply by reducing the length of the process. The UK general election campaign is over in one month. There’s no need whatsoever to have it last more than a few months, even in a country the size of the US. There’s only a handful of states in play as it is, and with modern transport and telecommunication technology you can reach those states easily in a short period of time. Moreover, if the campaign wasn’t dragged out over more than a year, the media would have less incentive to spend its time on trivialities, there would be less time for a spurious narrative to develop independently of the candidates’ actual policies and qualities, and most importantly there simply wouldn’t be as much need for money. The long election campaign is harming American politics more surely than any other process issue, in my opinion.

  9. #9 Ginger Yellow
    June 26, 2007

    Tacitus, I can see arguments both ways. I don’t buy the free speech absolutism of the Supreme Court, but on the other hand I think the UK takes it to the other extreme. I think you could get rid of much of the obscenity and distortion of the US presidential election simply by reducing the length of the process. The UK general election campaign is over in one month. There’s no need whatsoever to have it last more than a few months, even in a country the size of the US. There’s only a handful of states in play as it is, and with modern transport and telecommunication technology you can reach those states easily in a short period of time. Moreover, if the campaign wasn’t dragged out over more than a year, the media would have less incentive to spend its time on trivialities, there would be less time for a spurious narrative to develop independently of the candidates’ actual policies and qualities, and most importantly there simply wouldn’t be as much need for money. The long election campaign is harming American politics more surely than any other process issue, in my opinion.

  10. #10 tacitus
    June 26, 2007

    But you run into the same “free speech” problem if you try to restrict election campaign season to an artificially short period of time. It would not be any more constitutional to limit a campaign to a month than it is to restrict the amount of money a candidate can spend.

    I like the idea, but it’s unworkable in the U.S.

  11. #11 Gordon Stephens
    June 26, 2007

    In as much as I think the election process should be entirely state funded, a certain amount of media placement provided for free, and limited to only the two months prior to an election, I agree with the dissent.

    I have a hard time accepting that free speech is the be-all-end-all, particularly in juxtaposition to the health of the democratic process.

  12. #12 Bill Schmidt
    June 26, 2007

    Ah yes the old misleading in advertising. Except it doesn’t truly apply to political advertising. They don’t have to tell the truth. The damage can be quickly done and the repercussions won’t come round until after the damage has already been done and the election swayed. Remember Swift Boat?

    The median IQ is still after all 100. People tend to believe everything they see and hear. That’s how we got what we’ve got today. Not once but twice.

  13. #13 Leni
    June 26, 2007

    Ginger Yellow wrote:

    Moreover, if the campaign wasn’t dragged out over more than a year, the media would have less incentive to spend its time on trivialities, there would be less time for a spurious narrative to develop independently of the candidates’ actual policies and qualities, and most importantly there simply wouldn’t be as much need for money. The long election campaign is harming American politics more surely than any other process issue, in my opinion.

    I have no doubt that the long campaign season is bad, but I also have no hope that a shorter one would result in better quality. I think we could be justified in assuming that the same amount of crap (or possibly even more) would just be packed into a smaller amount of time.

  14. #14 James
    June 27, 2007

    Free speach aside, the problem with restricting election spending is that it gives the advantage to candidates with a strong existing image i.e. incumbents. It amounts to a form of financial gerrymandering, and increase incumbency bias. This in turn reduces accountability, and encourages existing political parties to ossify (or at least ossify more).

    It seems to me the approach should be to work out why elections cost so much and, if possible, do something about that. Its a vague idea, but it seems the only practical way to proceed. Election length seems a good point to focus on, but I don’t know what you can do about it.

  15. #15 BobApril
    June 27, 2007

    Ginger Yellow said:
    …the same amount of crap (or possibly even more) would just be packed into a smaller amount of time.

    True, but still a useful improvement. But as James pointed out, it would be difficult to accomplish. The UK doesn’t have a specific term length, does it? I mean, a maximum of 5 years, but the PM can call the election early? With our system, the dates are known and predictable, so there’s no way to really limit them. We could, of course, write laws on the subject, but just as with campaign financing and existing campaign laws, there always seems to be a way around them.

    Oh, and speaking of favoring the incumbents…since the British PM calls the elections at a time of his choosing, I assume he can wait until he feels public opinion is most favorable towards him and his party. Not to mention possibly giving his own party advance warning, letting them be fully ready with PR campaigns from Day 1, while the other parties have to flounder around getting set up. I don’t follow British papers much, but I’ve seen both techniques used in fictional governments, and they seem too obvious to not be real.

  16. #16 Ginger Yellow
    June 27, 2007

    But you run into the same “free speech” problem if you try to restrict election campaign season to an artificially short period of time. It would not be any more constitutional to limit a campaign to a month than it is to restrict the amount of money a candidate can spend.

    Well if the parties were serious about it they could either voluntarily agree to push the campaign and primaries back, or you could do it by constitutional amendment.

    I think we could be justified in assuming that the same amount of crap (or possibly even more) would just be packed into a smaller amount of time.

    I’m not saying it would be a panacea, but I do think there would be a marked improvement, for the reasons I gave above. There simply wouldn’t be the need to fill months and months and months of coverage with irrelevant trivia. No doubt the media would do their best to trivialise the candidates and the process, but these narratives take time to develop.

    Ginger Yellow said: “…the same amount…”

    No I didn’t.

    Oh, and speaking of favoring the incumbents…since the British PM calls the elections at a time of his choosing, I assume he can wait until he feels public opinion is most favorable towards him and his party. Not to mention possibly giving his own party advance warning, letting them be fully ready with PR campaigns from Day 1, while the other parties have to flounder around getting set up. I don’t follow British papers much, but I’ve seen both techniques used in fictional governments, and they seem too obvious to not be real.

    The first situation is very real, but isn’t as much of a “problem” as it sounds. Having a (reasonably) strong (executive) government is a good thing in a parliamentary system, otherwise nothing gets done at all. It’s not like parliament can have a separate legislative agenda and push it through against the executive’s wishes a la Congress. As for the second concern, it’s not really been an issue as far as I can tell. There’s normally tons of speculation about election dates well in advance of them being announced, so only in very rare circumstances is the opposition surprised. And in those circumstances the governing party is usually just as surprised. One mitigating factor is that in the UK system the parties have a defined policy on each issue (almost) all the time, so in theory it’s just a question of ramping up the PR and local party machinery. Furthermore the (not available in the US) restrictions on party political broadcasts and the more balanced political coverage on the TV news ensure that the government can’t blanket the airwaves before the opposition gets into gear.

  17. #17 slpage
    June 27, 2007

    I guess I’m just a rube – I never got the whole ‘spending money=free speech’ thing…

  18. #18 BobApril
    June 27, 2007

    Sorry, Ginger, I quoted Leni’s comment in response to you, but put your name on it. That’s what happens when I post too early.

  19. #19 Mike
    June 28, 2007

    The way the liberal justices ruled in both Kelo and the Wisconsin right to life case clearly plays into the conservative stereotype of liberals. In both rulings, the liberal justices argued for increasing government power and decreasing the rights and freedoms of people. The Kelo decision particularly hurts the Democrats in rural areas where property rights are taken more seriously than in urban areas.