When a group (whether it's citizens with a hobby, a union, a corporation, or a church) sees that government is throwing it's $3 Trillion/year bulk around in their neighborhood, they - rationally - try to buy off the government so that it does not destroy them or do them harm.
The solution is not to restrict speech - the solution is to get politics out of so many questions by getting the government out of those issues.
Once upon a time doctors did not feel the need to lobby the government ... because the government did not feel the need to regulate the prices and conditions under which doctors did their work.
Once upon a time target shooters did not feel the need to lobby the government ... because government did not feel the need to regulate every aspect of the hobby of shooting.
Lessig is way off base here. He's a big government statist, but he doesn't want folks who disagree with him to have the power to influence the government.
Lobbying the government is fine; lobbying is just asking the government to consider your point of view. This is what Lessig says in his essay; he never asks for restriction of speech.
Lessig isn't talking about speech, but money. Money paid directly to campaigns. Money paid to congressmen and their staff as soon as they leave congress, providing an incentive to support those interests that are most likely to hire them afterwards. This is not an issue of free speech; this is an issue of buying laws. Whether you believe in a large or a small government, if established interests can buy laws, they can control congress, and those laws that they buy aren't going to do do anything about making the government that they've paid for smaller and less effective.
How are you going to reduce the size of the government without getting rid of the influence of those who benefit directly from government largesse, or from government regulations increasing the cost of mounting effective competition?
Money isn't speech. The issue is to what extent your right to free speech is infringed by laws regulating how (or with whom) you use your money.
Perhaps an analogy will help. You have a right to travel freely. Imagine Congress passes a law banning the use of money to travel between the states. Money is not travel; yet, the law banning the use of money to travel certainly makes it difficult for you to exercise your travel rights.
Now substitute travel with abortion (for abortion rights supporters). Are abortion rights curtailed by this hypothetical law? Substitute travel with the purchase of firearms (for the NRA members out there). Is the right to bear arms infringed?
My examples are admittedly simplistic; yet, the point is that there can be a logical connection between the use of money and the exercise of a right -- including the right to free speech. The extent to which a restriction on the use of money infringes a right, and whether such an infringement is (a) allowed by the Constitution (b) wise as a matter of policy, is open to debate between reasonable people. However, simply stating that "Money IS speech" or "Money ISN'T speech" doesn't advance the conversation much, as your question rightly suggests.
It allows you to pay for pamphlets or tv advertisements so that others can here your message. It actually favors the unknown, those whose opinion won't be covered in the newspaper.
I don't see a problem with individuals or corporations sending out pamphlets or putting out ads (because trying to draw the line would be too hard), as long as the source is clearly indicated as not from the candidate. The problem is when a corporation or individual gives so much money to one candidate that he or she is disproportionately responsible for that candidate's victory. This is the reason why we have 1 vote/person. As it is, the wealthy are able to vote with their money, while the poor can only vote at the polls (with limited choices and high risk of disenfranchisement).
There is a limit on how much people can donate to campaigns, all of the recent hubub has been about corporations acting on their own without coordinate with a campaign.
How do the wealthy vote with their money? They are not buying votes, they are merely trying to influence other voters -- hence it's a free speech issue.
Should an unemployed person have more influence on the government than an employed person? They have more time go and talk up their candidate, can an employed person pay to have people hired to spread their message?
Should a celebrity have more influence over our electoral process because their statements get covered in the press than a successful businessman who isn't well known but works hard to earn money?
This is a band aid solution and does not address they systemic problems.
1. Too much is controlled at the federal level.
2. The government has significantly overreached in its authority.
Some people will always have an easier time of being heard than others. This is just about making sure that people can't directly buy their way to an easier time of being heard, buy buying off people in the government directly. They will instead have to be heard in a public forum, where public debate can occur.
1. Too much is controlled at the federal level. 2. The government has significantly overreached in its authority.
So what's your solution? When was the last time a president or congress made the government smaller? Is it possible for this to happen when monied interests can buy the ear of a congressman and get a great return on their investment because the government is so large and powerful?
The natural counterforce to corrupting influences, all of them rather than just campaign finance, is robust citizen accountability. Clearly this accountability has left something to be desired to date. I would argue this has largely to do with rational ignorance (http://en.wikipedia.org/wiki/Rational_ignorance) on behalf of voters, that they, having so much to do, aren't willing to wade through the maze of political discourse in order to really know who is worth voting for.
But what if it was dead-simple to know where your rep stood, on every issue, not just the obvious ones, and on every level, not just congress?
I'd argue that you could convert a substantial number who currently don't vote, or else default to simple heuristics in deciding who to vote for: e.g. party or incumbency.
To that end, I've started a site: http://votereports.org which aims to be something like the github of political accountability. A simple, decentralized group of folks generating, exchanging and refining politician report cards based on objective criteria such as votes.
The project is just 2 months old, and there's plenty to do, but it should be ready well before November.
For better governance, I'd stake my bet on this before I would on a constitutional amendment or change of heart for politicians. After all:
> "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." - Thomas Jefferson
Why can't people buy their way to be being hear, if I own a newspaper can I write editorials about the candidates and issues? If so, why do we only allow the extremely wealthy to do that? You're disenfranchising people who have some money, but not enough to own media from being able to be heard. How is buying advertising not a public forum?
Do you have problems with PACs?
If we can't trust our politicians to make small changes to reduce their power, how the hell can you trust them to make fundamental changes to the system?
Your argument was simply that money is speech, as if it's a tautology. I didn't feel like going through a long, detailed refutation if that's the level of effort you were going to put in.
The whole thing about money being speech is not because money actually is speech. The issue is that putting restrictions on how people spend their money can unconstitutionally limit their freedom of speech, or of the press. For instance, if you say that they can speak all they want, but can't spend more than $10 on printing costs, then you've limited their freedom of the press. So, the court can strike down laws about spending money in elections if it unduly restricts people's freedom of speech and of the press.
That doesn't mean that all money is speech. Money is trade, commerce; and the Constitution explicitly allows Congress to pass laws relating to interstate commerce (which the court has since broadened to pretty much all commerce or economic activity, even within a single state, as it can affect interstate prices, which I think is somewhat dubious, but that's the precedent we've got).
So, it's the tension between these two issues is where we have the debate. Money isn't speech, but because money can be used to buy almost anything, including a forum for your speech, it's hard to block money without also blocking speech.
I think that we can do considerably better than what we are doing, however. Paying money directly to a candidate or campaign goes beyond simple speech; that could be construed as bribery. With appropriate limits on campaign contributions, you can reduce the disparity, and make it so that everyone (or almost everyone) can afford the same impact on the campaign, though I still find it a little bit dubious.
But beyond campaign contributions, it's hard to determine where to draw the line. It's very easy to write laws which do unjustly forbid certain kinds of political speech. It's also very easy to turn from a democracy into a plutocracy by simply allowing money to buy everything that actually matters in government. I don't know what the right solution is, but I suspect that reducing the financial incentives for congressional staffers and congressmen to act in the interests of those with money will help to get changes in the government that the public actually wants.
I agree about the problem of bribing politicians and agree that direct donation/payments should be reported and controlled. This is a restriction on the candidate not on the individual or corporation, the candidates campaign cannot accept the funds.
I believe a person or a corporation should be able to spend their money in anyway they see fit and advertise anything they want to.
I've stated before in other comments that they way to remove corruption is to remove the incentive for corruption -- reduce the amount of money controlled by congress and the scope of it's control (to prevent regulatory capture). The easiest way to do this is to support action at the state level and only at the federal level for truly national/interstate things. For instance, federal pollution controls only apply to pollution that crosses state lines. This way lobbying is less effective since the amount of effort vs payoff is reduced.
We also need to stop trying ram through legislation whenever a given party is in power. Instead they should seek consensus and if none can be found do nothing.
That is a patently ridiculous argument. Allowing unlimited money to be spent by corporations produces a distortion orders of magnitude larger than that of unemployment. Perhaps an unemployed person can have several times the impact of someone with a job (I don't really buy that, but even so). A large corporation, meanwhile, can buy national advertising and have millions of times the impact of an ordinary person.
If this is about fairness and equal representation, your position is untenable.
Once upon a time people felt the need to lobby their government because they were being killed by their medicine.
It's easy to paint a rosy picture of our past. Do government regulations go too far some of the time? Definitely. But they do serve an important purpose in others.
Your analysis is spot on until your last sentence. Not only do you misuse the word statist in a structural sense (government statist is redundant in this context), you incorrectly apply it to Lessig's politics. You're points are valid without your last sentence and I hope you'll get rid of it.
I'd like you to explain how these political positions of Lessig are statist please:
* Reduced legal restrictions of copyright and patents
* Citizen funded campaign finance
* Increased government transparency and accountability
Clearly he believes the sovereignty of a nation lies with the people, not the government. So again I ask you, without agreeing or disagreeing with Lessig's politics, can you clearly explain why you believe politically Lessig is a statist.
People spend money on politics because they want government to act in a certain way. The spending can be to support or defeat a particular candidate or to insure that existing politicians attach importance to the spenders' interests. In either way, spending is an attempt to exercise some control over government.
When a lot of money is spent on politics, a statist sees a restricted government. The statist wants to free government from spenders' influence. The statist wants to give the government more freedom to act.
When a lot of money is spent on politics, an anti-statist sees an oppressed people. The anti-statist wants to free the people from government power by decreasing the importance of government. The anti-statist wants to restrict government's freedom and power.
Under this framework Lessig is a statist. He sees political spending not as a sign that government is too powerful, but rather that government is not powerful enough to act against the big spenders' interests. Lessig advocates more restrictions on the spenders. He thinks that Citizens United (rebuffing government's attempt to silence corporations) was wrongly decided.
Massive political spending is of concern to both statists and anti-statists. For statists, it is a sign that government is not acting independently and disinterestedly in the people's interests. Money is corrupting government. For anti-statists, it is a sign that government is seen by the people as a large threat or a large opportunitiy, neither of which is good because it implies that government is important, which it shouldn't be.
Little political spending is viewed favorably by both statists and anti-statists. For statists, it is a sign that special interests see political spending as futile to stop a government from acting in the common interest. For anti-statists, it is a sign that government is too weak to matter very much or is acting so neutrally that no one is complaining.
When a lot of money is spent on politics, a statist sees a restricted government. The statist wants to free government from spenders' influence. The statist wants to give the government more freedom to act... Under this framework Lessig is a statist.
The framework you outline is far too general to term someone a statist. Statists are in this subset of people yes, but so is anyone left of center.
If you want to claim Lessig leans more towards a statist school of thought than an anti-statist school of thought I will agree with you. But ultimately a statist believes the sovereignty of a nation lies with the government and not with the people. I don't think Lessig believes this. To label Lessig a statist you'll have to make a far stronger case than what you've presented here.
What do you mean by "a statist believes the sovereignty of a nation lies with the government and not with the people"?
It seems to me that the word "statist" implies a context/framework in which the state, as a coercive institution, is separated from the rest of society which is non-coercive. In this context, a statist is one who favors the state or equivalently, a statist prefers to solve social problems by relying on force rather than cooperation.
It seems to me that most people don't think in these terms. They don't distinguish between the state and everything else. Rather they think pragmatically: "How can I have a better life?" or "What's good for my country?" Lessig seems to fall in this group. So for example, he sees that copyright law is not encouraging an innovative society, and therefore he wants to change the law. Or he sees that government is acting in the best interest of corporations rather than "ordinary" folks and so he tries to change that. He's not thinking in terms of strengthening or weakening the "coercive institution of the state."
Analogous situations: Most web developers think in terms of solving technical problems, "how can I get this page to look a certain way?", rather than being standards compliant. Most general consumers think in terms of comfort, convenience, value, etc, rather than "green" (what's good for the environment) or patriotically (buy American).
So when Lessig is called a statist, he is being characterized in the framework implied by the term, which is not the framework in which he thinks.
Yes and the brilliance of the founders was creating a very limited federal government. The aristocratic senate and the house 'of the people' had to agree. The bill would get vetoed by default. One senator could stop any bill by filibustering. The bill of rights prevented state governments from gettting out of control...
The abuse of the filibuster for one senator to stop a bill is actually a recent parliamentary invention. There's no constitutional mechanism for the filibuster, it's based on senate rules which are adopted every 2 years.
Historically, 40 senators could prevent debate from being cut off but they would need to all occupy the chamber and actually be debating the whole time. See Strom Thurmond reading the phone book on the senate floor during the civil rights filibusters, for example.
But that took a bunch of time, time you could be at fundraisers or hanging out at home or whatever. So they made it easier over recent years, with the result that the current Senate filibusters more than twice as much as the last one, which itself filibustered more than historically, etc.
The tradition of unrestricted Senate debate has been a part of the Senate since the inception of the republic. In fact, prior to 1917, there was no mechanism for ending debate so long as any single senator desired to speak. And given that Congress used to meet much less frequently than it does at present, it was commonplace for bills to be "filibustered" simply because a single senator didn't like the bill, and other more pressing bills (read: supply bills) needed to be taken up before the end of the session. The idea of making someone speak in order to stop debate from ending was even more ludicrous than the idea of waiting out a filibuster (which in itself was ludicrous); it just wasn't even considered as a rational tactic. (For more on the circumstances of this, I would recommend reading Caro's excellent biography of Lyndon Johnson: specifically the third volume "Master of the Senate," where he discusses in depth the South's effectiveness at stopping bills from coming to a vote circa 1957).
As for cloture, in its original incarnation (remember, this was only quite recently: 1917) it required 16 senators to file a petition for cloture, at which point 2/3 of those present and voting needed to vote in favor to lead to a vote. However, presiding officers consistently interpreted this Rule as NOT applying to "motions to proceed to consideration of a bill," which are necessary by Senate Rule (from I don't know when, probably since Jefferson's Manual) for making a piece of legislation the main motion. As a result, if you didn't like a bill, you could still always just filibuster the motion to proceed until the late 50s/early 60s when this loophole was closed. Since there were 3-4 votes between the motion to proceed and the final vote on the issue, a group of 10-20 senators (say, the Southern bloc) refusing to allow a bill to come to the floor was more than enough to kil lit.
My point is this: the notion that the filibuster is a recently parliamentary invention ignores the 80-some-year period from 187X to 1957 when not a single bill related to racial injustice was passed into law at the federal level. To my knowledge, "the South" was never even in control of 1/3 + 1 of the seats in the Senate chamber, but they still managed to effectively use Senate Rules and precedents to restrict these bills from coming to a vote, and I can't think of a single congressional session during this period that was extended to try to outlast opponents of a bill. It just didn't happen.
Today, at least, you can a) get to cloture vote, since the motion to proceed loophole has been closed and b) stand a reasonable chance of succeeding at the cloture vote, since you only need to convince 3/5 of the Senate that something is worth voting on. If there is more technical filibustering right now (by which I suppose one means defeat of cloture motions), then at least there is a public denouement, rather than a policy of simply giving up when a handful of senators express opposition.
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Also, two asides:
1. Thurmond's 1957 filibuster only occurred because he wasn't backed by the rest of the Southern Caucus. They chose to allow the bill to come to a vote, presumably because they knew that Lyndon Johnson (majority leader) needed a civil rights bill in order to be a plausible presidential candidate, and they really really wanted a Southern president.
2. The idea that the Senate Rules are readopted every session has never really been accepted by the Senate. Nixon was the first presiding officer to rule as such in 1953 (it may have been 1955) as part of civil rights strategy, but it was overruled on that occasion and on most later occasions. In general, I would say that the prevailing sentiment among Senate parliamentarians is that the Senate is more of a continuous body, and I would expect a real struggle if a majority ever attempted to pass a new set of Senate Rules under the supposed "normal parliamentary rules" under which the Senate debates at the beginning of each session.
Far from being ludicrous, the original rules served a valid purpose: weighing the conviction of those participating in the debate. By forcing a speaker to hold the floor, the original rules allowed someone with deep conviction to stand against a majority in a test of will. Even if the speaker ultimately failed on the floor, he would have drawn public attention to his point of view and ensured that it was considered.
The Bill of Rights did not apply to the state governments until the 14th Amendment was interpreted to so apply them. Thus you had established churches in several states during the early years of the republic.
The way you casually talk about this as if it were some sort of unanimous opinion at the time of the Constitution's drafting suggests that you should do a bit more actual research into the history. And, possibly, into the document itself, which was drafted as a reaction to the failures of a deliberately-crippled central government.
Once upon a time, charlatans killed people right and left because no one regulated who could claim to be a doctor. Once upon a time, a mob could ransack your house and steal your belongings because there was no law. That's why we invented government. Government starts regulating behavior whenever enough people are adversely affected by that behavior that they demand the regulation.
Rather than simply giving in to anarchy as you suggest, let's try to improve democracy.
Don't be Naive!
Laws and regulation have never _not_ been up for sale to the highest bidder. So your fictional doctor is only lobbying to reverse the result of previous lobbying.
Your fictional "once upon a time" must have been the time when people rode unicorns to work, and nobody ever hungered because elves in trees fed everybody. In the real world money is what makes laws, and Lessig is the closest thing we have to a super-her.
The solution is not to restrict speech - the solution is to get politics out of so many questions by getting the government out of those issues.
Once upon a time doctors did not feel the need to lobby the government ... because the government did not feel the need to regulate the prices and conditions under which doctors did their work.
Once upon a time target shooters did not feel the need to lobby the government ... because government did not feel the need to regulate every aspect of the hobby of shooting.
Lessig is way off base here. He's a big government statist, but he doesn't want folks who disagree with him to have the power to influence the government.