Wednesday 27 January 2010

US Supreme Court Strikes a Blow for Freedom

Infamy, Perfidy, or Righteousness?

The US Supreme Court has blocked the gradually growing restrictions upon free speech in that country, at least insofar as political speech is concerned. This is significant because, as has been observed, free political speech is the most important kind of speech to be free, at least in a limited-government polity.

The Court's decision has sent shock waves through the political establishment in the US. Some political leaders are hailing it as a wonderful victory; others are declaring that it is a day of infamy, when democracy became terminally ill. Which is correct?

Free political speech in the US has been successively restricted. It began when, under the indirect influence of socialist ideology, the idea took hold that money could buy elections. If that were true, owners of capital could end up buying political power--not so much through bribery, but through shouting out opposing voices in elections. Capitalists could control the billboards, the newspapers, the electronic media, and the public messages because they could all be bought. Poorer, less wealthy people, would have their voice drowned out.

In New Zealand we find this argument to be very familiar. It is a line that has been run by the socialist left in this country consistently since Noah was a lad. It lay behind the infamous attempts by the last Labour government to restrict and control political speech prior to the most recent election.

Of course, realistically, there may be some risk that some wealthy cabal might buy sufficient public media influence that an electorate can be duped into voting for something which is not really in their "best" interests (as defined by someone else, naturally). But upon examination this notion is simplistic ideological nonsense. It rests on the naive assumption that owners of capital all think the same way and are uniform in their political opinions. Naturally, socialists think this way, for "capital" is a class, with defined and prescribed uniform class interests. But the real world is far from Marx's ivory tower.

Secondly, the best protection against a conspiratorial monied interest gaining undue influence preventing other views or voices being heard is to open up political speech to more people with money.

In an attempt to prevent the spectre of capitalists exercising "undue" influence on elections in the US the government had restricted corporations (businesses, unions, political lobbies, NGO's) from speaking during an election campaign. It had quixotically decided that when the Constitution protected free speech, it was the speech of individual voices, not corporate voices, such as corporations. How absurd was that?

As Justice Scalia has explained:
In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. . . .

[W]here the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore. . . .

It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer. (Hat Tip: Patterico)


Ed Rollins, a senior political contributor for CNN, summarises the Supreme Court decision as follows:
The court overruled decisions it had made 20 years ago and stated that corporations, labor unions and public advocacy groups could spend unlimited funds advocating the election or defeat of candidates for federal office, meaning Congress or the White House.

In 1907, Congress passed the Tillman Act banning corporations from donating money directly to federal candidates. Corporations still won't be able to do that. But what they can do under the court's Thursday ruling is run their own campaigns advocating the election of someone or the defeat of someone. All they have to do is disclose what they are spending and on whom.

Under the new rules, or more correctly with no rules, you as a voter may have to ask yourself why is the Teamsters Union or Goldman Sachs or some other corporation or labor union spending all this money to defeat or elect this congressman or senator.

That is not a bad thing to know. I believe this will be offset by allowing for more competition and that will be a good thing. Raising money is the most difficult part of running a campaign. Many a good candidate falls short because he or she can't meet the hurdles that have been set up to protect incumbents.

The floodgates for money will obviously be opened by the court's decision and that may give good candidates the opportunity to compete against incumbents who have tremendous government resources that help them run year-round campaigns on taxpayer dollars.

Equally important, it will allow candidates to run effective campaigns against millionaires and billionaires who self-fund their campaigns. Michael Bloomberg recently spent over $108 million of his own money to win his third term as mayor of New York. The recently defeated governor of New Jersey, Jon Corzine, spent over $100 million of his own money in his races.
What restrictions, financial or otherwise, upon free speech do is protect the political incumbents from competition and put up barriers to entry for newcomers seeking political office. They effectively establish a political incumbent over-class. It may not be their intended effect, but it is their actual effect. And it is severely deleterious to a democratic polity. The Supreme Court's decision effectively emasculates the considerable advantages built up by those endowed with incumbent political power.

People have long complained that the political elites in Washington, caucused with the liberal-academic-media complex, are now completely out of touch with the common person in the US, whom they dismiss as belonging to the non-educated classes. The Supreme Court's decision is going to change all that.
The court's decision adds another uncertainty to an already nervous Congress and will make some senators and representatives who thought they were election-proof get back out and start listening to their voters. Following Tuesday's upset in Massachusetts, where Democrats lost a Senate seat they had held for 57 years with the election of Scott Brown, many more members now know they are not invincible.

To make our Congress work for us, we have to make it listen to us.

Tuesday's election was the wake-up call and the court's decision will make our system more competitive. A Congress listening to the voters is what will make it relevant to us again. There will certainly be campaign abuses, as there are now, and many will not be happy with the court's ruling, but the full disclosure law lets you know who is doing what and that's a good thing.

Sure, Washington is scrambling to figure out what this all means. But I must agree with Chief Justice John Roberts, who in his own separate opinion, said that upholding the limits would have restrained "the vibrant public discourse that is at the foundation of our democracy."
A friend sent us an e-mail lamenting the Court's decision, raising the spectre of the US being taken over by an oligarchy of monied capitalists. The exact reverse is the case. Monied interests such as George Soros and Warren Buffett are notorious political liberals. Other monied interests are not. And in the end, while money might talk, it does not necessarily say the same thing, nor does it necessarily make people listen. But it does make for a much more vibrant political debate, and one much less controlled by the incumbent political machines--that is, the present ruling class.

And one other salutary effect: the Court's decision will remove the quasi-monopoly of the media over political discourse that has existed in the US. For under the previous restrictions, media (although corporate entities) were exempt from the prohibitions on corporates engaging in political speech. Now, every corporate, profit making or not, will be pretty much on a level playing field. Either the mainstream media will reconnect pretty swiftly with the despised "uneducated classes", or their evident demise will be hastened.



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