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Kalman posted:A simple tax on advertising is unconstitutional. I already provided you the case cite on it. Of the two cases you cited, one was an attempt by Huey Long to silence only newspapers that opposed him politically via a specifically tailored tax, and in the other what the Court actually ruled was that such taxes were unconstitutional absent compelling justification and Minnesota did not demonstrate such justification. My argument -- as per Kagan's dissent, above -- is that the prevention of corruption and the appearance of corruption is such a compelling justification, and that this tax would be passed as part of an overall system to finance public funding of elections and thus prevent corruption and the appearance of corruption in elected officials. Therefore, constitutional and able to survive strict scrutiny. That said, this isn't a debate about what the rules are now; it's a debate about how they should be changed to fix the manifest problem of political corruption in American campaigns. We seem to differ about whether this problem even exists, so I don't expect to change your mind as to how compelling an interest the government has in solving it, but my reasoning is valid, it's just that you disagree with my premises.
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Apr 30, 2016 04:44
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Hieronymous, you still haven't demonstrated that corruption occurs through the speech you want to restrict.
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Apr 30, 2016 04:46
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And you have a huge over breadth problem in that you're restricting 180 bn in speech to address 5 bn of it.
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Apr 30, 2016 04:48
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Hieronymous Alloy posted:but my reasoning is valid, it's just that you disagree with my premises. No, your reasoning is completely contradictory to basically every First Amendment doctrine in existence. E: this is why loving non-lawyers shouldn't pretend they understand the law.
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Apr 30, 2016 04:50
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Discendo Vox posted:Hieronymous, you still haven't demonstrated that corruption occurs through the speech you want to restrict. This debate is getting circular -- see my post on page 246 of this thread : http://forums.somethingawful.com/showthread.php?threadid=3590854&userid=0&perpage=40&pagenumber=246#post459262829 If you accept the premise that campaign finance corruption is a serious problem that the state has a compelling interest in addressing -- if you look at things like the Princetion oligarchy study I cited above -- then there's a sound (if so far a minority) argument that my proposal to fix that issue is constitutional. If you don't accept that premise then yeah everythings' hunky - dory but as above AreWeDrunkYet posted:You can't prove that any single campaign donation/PAC donation influences a politician, therefore the entire campaign finance system does not present any evidence of corruption. Meanwhile billions of dollars continue to flow and policy continues to favor the donors - but surely that's just a coincidence?
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Apr 30, 2016 04:53
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Kalman posted:And you have a huge over breadth problem in that you're restricting 180 bn in speech to address 5 bn of it. Even accepting your premise, a 2% tax on 180 billion is not a restriction on 180 bn worth of speech; it's a restriction amounting to 2% of that total, not 100%. Kalman posted:
And in this case, the frankly obvious corruption of political discourse in this country requires management.
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Apr 30, 2016 04:56
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Hieronymous Alloy posted:This debate is getting circular -- see my post on page 246 of this thread : The Princeton oligarchy study is headline-grabbing circular trash, like I said before. You're operating based on an unsupported premise. Hieronymous Alloy posted:Even accepting your premise, a 2% tax on 180 billion is not a restriction on 180 bn worth of speech; it's a restriction amounting to 2% of that total, not 100%. Unless you think that all 180 billion is coming from the same place, it's not going to effect everyone equally. You...do understand you're arguing for a flat tax on political speech, right? Hieronymous Alloy posted:And in this case, the frankly obvious corruption of political discourse in this country requires management. Listen to yourself! The greater funding and influence of speech that I disagree with is corrupt, and therefore political speech nationwide requires "management".
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Apr 30, 2016 05:00
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Discendo Vox posted:Listen to yourself! The greater funding and influence of speech that I disagree with is corrupt, and therefore political speech nationwide requires "management". Almost every other country in the world regulates spending on political speech in some way. Like anything else, it's a marketplace ("marketplace of ideas") and ALL marketplaces require some degree of government regulation and management or they spiral out of control into either monopolies or utter chaos. Yes, my proposal is a flat tax BUT it's a minimal flat tax -- literally pennies, count them, two, on the dollar -- combined with a subsidy, and the subsidy goes right back into financing a wider, broader array of speech. Smaller, poorer voices would net out with greater funding overall. As above -- I'm not arguing that this is currently constitutional. But it could be. And the country would not spiral into disaster, and speech would not be unfairly restricted, and no viewpoints would be silenced. Hell, compare my proposal with the constitutional amendments I've seen proposed to overturn Citizens United. I'm not even really disagreeing with the "money is speech" argument; I'm just saying that the argument doesn't end there, and speech can be regulated given compelling interest, as long as it's done in a way that doesn't unfairly burden any particular viewpoint over another (which my proposal does not do). Hieronymous Alloy fucked around with this message at 05:30 on Apr 30, 2016 |
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Apr 30, 2016 05:08
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Hieronymous Alloy posted:Even accepting your premise, a 2% tax on 180 billion is not a restriction on 180 bn worth of speech; it's a restriction amounting to 2% of that total, not 100%. That's not relevant. You're taxing all the speech. It's textbook overbreadth where you impose burden on speech you can't permissibly burden to act on speech you can. some dumb argument posted:As above -- I'm not arguing that this is currently constitutional. But it could be. And the country would not spiral into disaster, and speech would not be unfairly restricted, and no viewpoints would be silenced. You can do it. You just have to repeal the First Amendment to do so.
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Apr 30, 2016 05:09
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Kalman posted:
A number of people are actually proposing this, via constitutional amendment. See: http://www.sanders.senate.gov/imo/media/doc/031213-CUAmendmentFactSheet1.pdf http://www.scotusblog.com/2014/06/senate-judiciary-committee-holds-hearing-on-proposed-campaign-finance-amendment/ I'm not going anywhere near that far. What I've proposed can be conformed with the text of the Constitution and with most existing precedent, including much of even Citizen's United. It *would* involve overturning a number of precedents, but we knew that going, from the moment I proposed public financing at all. Hieronymous Alloy fucked around with this message at 05:19 on Apr 30, 2016 |
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Apr 30, 2016 05:15
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Hieronymous Alloy posted:A number of people are actually proposing this, via constitutional amendment. You would need to to do what you're proposing.
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Apr 30, 2016 05:17
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Kalman posted:You would need to to do what you're proposing. If my proposal overturns the 1st then Miller overturns the 2nd. End of the day, before hard caps on campaign donations were unconstitutional, they were constitutional; all that changed was the Court. My initial proposal was a soft cap, via taxation. (If you want to quibble, yes there's a technical difference between campaign spending and campaign donations, but practically if you block the hose at either end it's blocked). Kalman posted:Trying to impose similar licensure fees on cable channels would be a problem, same as there's some ability to regulate profanity and nudity over the air that isn't possible on cable. Sales taxes on cable channels have been ruled constitutional in some situations. Leathers v. Medlock, 499 U.S. 439, 453 (1991) (tax applied to all cable television systems within the state, but not to other segments of the communications media). Hieronymous Alloy fucked around with this message at 06:17 on Apr 30, 2016 |
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Apr 30, 2016 05:35
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Again, why do you think this is necessary? Why is restricting and distorting the distribution of political speech the best way to pursue the interest you seek?Hieronymous Alloy posted:Hell, compare my proposal with the constitutional amendments I've seen proposed to overturn Citizens United. I'm not even really disagreeing with the "money is speech" argument; I'm just saying that the argument doesn't end there, and speech can be regulated given compelling interest, as long as it's done in a way that doesn't unfairly burden any particular viewpoint over another (which my proposal does not do). Hieronymous Alloy posted:If my proposal overturns the 1st then Miller overturns the 2nd. That's not how constitutional review works. Discendo Vox fucked around with this message at 06:26 on Apr 30, 2016 |
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Apr 30, 2016 06:23
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Discendo Vox posted:That's not how constitutional review works. It is. We just pretend otherwise. Judges make decisions based largely on instinct and personal bias and rationalize those decisions afterwards. This is especially true for emotionally charged issues like civil rights and constitutional law.
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Apr 30, 2016 06:26
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Hieronymous Alloy posted:I make decisions based largely on instinct and personal bias and rationalize those decisions afterwards. You might not want to base a policy argument on the assertion that the entire system of legal review is illegitimate. Even the most hardcore of the legal realists don't go as far as you are now.
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Apr 30, 2016 06:30
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Discendo Vox posted:You might not want to base a policy argument on the assertion that the entire system of legal review is illegitimate. Even the most hardcore of the legal realists don't go as far as you are now. Oh, it's not completely illegitimate. I'm not saying that the text of the law, precedent, the legislature, etc., don't have a role in judicial decisionmaking. I'm just saying those aren't the first or primary driver of judicial decisionmaking. What comes first is the result. The rest is either "find me something to support this" or "wait, that doesn't fit. Can I make it work or not?" It's also a somewhat recursive process because a judge's personal notions of a just and fair result is going to be informed by his or her notions of how important stare decisis is, how important various constitutional principles are, etc. The hope is that in the aggregate over time and the appeal process, all of the various personal biases even out like stones in a tumbler and what's left is "the law as it should be" just and fair etc. But that's hope, not proven. (As I've said before, I suspect something upwards of ten percent of prison inmates are factually innocent of the crimes they're incarcerated for, based on the estimate 4% rate for death row inmates and the fact that death row inmates get massively more defense resources than anyone else does. So by that metric at least, it seems our justice system is somewhere between 80 and 90 percent legitimate)(and thus conversely between 10 and 20% illegitimate). End of the day though if we'd had nine Souters on the Court when Citizen's United was decided, campaign donation limits would still be constitutional, but instead they aren't. If nine Justice Whites had written Buckley v. Valeo, we'd have both spending and donation limits. The Constitution isn't carved on stone tablets, the justices aren't Moses, and there's no mountaintop. Just nine (or eight) people in funny robes doing their all-too-human best. Hieronymous Alloy fucked around with this message at 07:34 on Apr 30, 2016 |
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Apr 30, 2016 06:42
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Hieronymous Alloy posted:If my proposal overturns the 1st then Miller overturns the 2nd. The case that states "Absent a compelling justification, the government may not exercise its taxing power to single out the press." is probably not what you want to cite in support of the proposition that you could constitutionally have a tax that singles out the press.
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Apr 30, 2016 08:05
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Kalman posted:The case that states "Absent a compelling justification, the government may not exercise its taxing power to single out the press." is probably not what you want to cite in support of the proposition that you could constitutionally have a tax that singles out the press. HM believes the government has a compelling interest to limit private speech he doesn't like.
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Apr 30, 2016 09:21
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Discendo Vox posted:HM believes the government has a compelling interest to limit private speech he doesn't like. Even if that was a compelling interest, it'd still fail on overbreadth.
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Apr 30, 2016 09:33
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As a Canadian, reading these past few pages is frankly horrifying. Money is speech, slavish devotion to documents made before mass communication was a thing, and refusal to potentially limit damaging speech because you don't trust your government. Money as speech is loving ridiculous on the face of it, and you can't logically argue that saying money is speech doesn't immediately cause an unequal balance of power. But some people said it once, so gently caress you, it's true forever.
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Apr 30, 2016 10:01
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Avenging_Mikon posted:As a Canadian, reading these past few pages is frankly horrifying. Money is speech, slavish devotion to documents made before mass communication was a thing, and refusal to potentially limit damaging speech because you don't trust your government. Money as speech is loving ridiculous on the face of it, and you can't logically argue that saying money is speech doesn't immediately cause an unequal balance of power. But some people said it once, so gently caress you, it's true forever. What do you mean by "damaging speech"? What do you mean by "your government"?
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Apr 30, 2016 10:04
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Discendo Vox posted:What do you mean by "damaging speech"? What do you mean by "your government"? He means that you and Kalman are more concerned with soulless pedantry than if your slavish devotion to contemporary judiciary interpretation/policy might have ill effects. If it's any comfort though, you're both completely right, you've yet to be wrong, at all. Of course this kind of zealotry has no possible consequences either. (citation needed) 
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Apr 30, 2016 11:06
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Kalman posted:Even if that was a compelling interest, it'd still fail on overbreadth. Unless it wouldn't, because he's making a bog standard crit argument as to how the Court works
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Apr 30, 2016 12:47
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Everyone seems to be ignoring the fact that the money doesn't even have to corrupt. The appearance of corruption is enough to dissolve public faith in the system and there is a compelling interest for the people to believe their government works.
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Apr 30, 2016 14:30
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Discendo Vox posted:HM believes the government has a compelling interest to limit private speech he doesn't like. That's a gross misrepresentation of my argument. The limitation i am proposing is both de minimis and completely non-discriminatory; it has nothing to do with what I do or don't like.
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Apr 30, 2016 14:51
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BiohazrD posted:Everyone seems to be ignoring the fact that the money doesn't even have to corrupt. The use of private funds towards political ends is a de facto corruption of democracy, unless you buy the argument that people are making in this thread that politicians don't make decisions based on the impact on fundraising (lol). Defining political ends can take this down quite a rabbit hole though.
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Apr 30, 2016 14:54
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AreWeDrunkYet posted:The use of private funds towards political ends is a de facto corruption of democracy, unless you buy the argument that people are making in this thread that politicians don't make decisions based on the impact on fundraising (lol). Defining political ends can take this down quite a rabbit hole though. I'm not disagreeing with you. I'm saying that you don't even have to prove that it does corrupt. Everyone looks at the system and assumes it does and that in itself is damaging enough that something should be done about it.
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Apr 30, 2016 15:00
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Kalman, can you explain how limitations on straight up "pay politician to do what I want" stuff isn't a violation of free speech? I'd be interested in seeing how you justify it.
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Apr 30, 2016 15:20
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GlyphGryph posted:Kalman, can you explain how limitations on straight up "pay politician to do what I want" stuff isn't a violation of free speech? I'd be interested in seeing how you justify it. It perhaps is a violation of free speech, but it's also a violation of republican government. The conflict is resolved in favor of republicanism. Straight up bribery of a representative is a crime as a result. All donations to politicians are made with the understanding that said politician will and must act independently of those donations. You donate to a politician because he has promised to do things you like. He may or may not actually do them. If he does, it's not "corruption." Surprisingly, a politician promising to do things nobody likes or wants doesn't get any donations, and thus can't get elected. It's like people are communicating about their opinions of him as a candidate based on how they donate. You might even call it "speech."
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Apr 30, 2016 15:48
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GlyphGryph posted:Kalman, can you explain how limitations on straight up "pay politician to do what I want" stuff isn't a violation of free speech? I'd be interested in seeing how you justify it. I'd imagine that even if literal quid pro quo bribery ran afoul of free speech, bribery laws would pass strict scrutiny.
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Apr 30, 2016 15:54
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The problem isn't so much whether or not money is considered speech -- it is and should be -- but that a relatively small group of people are close to monopolizing the discourse. The marketplace of ideas is vulnerable to private monopoly power just like any other market. http://www.nytimes.com/interactive/2015/10/11/us/politics/2016-presidential-election-super-pac-donors.html Our democracy is suffering because oligarchs both monopolize the discourse and are seen to be monopolizing the discourse. It's not a matter of rank quid pro quo corruption, it's a matter of whose concerns get listened to and whose don't.
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Apr 30, 2016 15:58
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GlyphGryph posted:Kalman, can you explain how limitations on straight up "pay politician to do what I want" stuff isn't a violation of free speech? I'd be interested in seeing how you justify it. Assuming arguendo that such a bribe is speech, there's a compelling interest in avoiding actual corruption and criminalizing bribery is a least restrictive means to achieve that interest, so anti-bribery laws pass strict scrutiny. Similarly, because there's an interest in avoiding the appearance of corruption, campaign contributions can be constitutionally limited (though not barred completely since that implicates the ability to participate in political speech and fails least restrictive means.) There's also the argument that bribery is commercial speech (speech that proposes an economic transaction) and thus is validly regulated because it proposes an illegal act (theft of honest services, for one) which means it is prima facie regulable for the same reasons that payments to hire a hit man aren't protected speech. I could probably articulate some additional reasons if I gave it some more thought, though.
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Apr 30, 2016 16:04
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"arguendo" and other similar latin words should be banned from all legal writing, especially judicial opinions, and definitely from an internet message board come at me
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Apr 30, 2016 16:09
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Green Crayons posted:"arguendo" and other similar latin words should be banned from all legal writing, especially judicial opinions, and definitely from an internet message board Nihil nequius est te. Supprime tuum stultiloquium. Et...Mater tua tam obesa est ut cum Romae est urbs habet octo colles.
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Apr 30, 2016 16:18
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Arma virumque cano, Troiae qui primus ab oris (wow, that one really is solidly in the old memory banks for good)
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Apr 30, 2016 16:22
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Make all bills be written using only the 100 most common words.
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Apr 30, 2016 16:39
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Out of curiosity, what would Kalman etc. think of the way campaign financing is handled in coutries like Germany, where most of the political parties' funds come from public subsidies and membership dues?
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Apr 30, 2016 16:44
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botany posted:Out of curiosity, what would Kalman etc. think of the way campaign financing is handled in coutries like Germany, where most of the political parties' funds come from public subsidies and membership dues? That's not really the issue, campaign donations both constitutionally can be and are limited. Similarly, private individuals independently paying to advertise on behalf of a candidate or policy they support is both legal and constitutional so long as they are not colluding with a given politician. If a bunch of private individuals want to pool their money in order to better do this, that is also legal. The real issue is to what extent independent corporate money-as-speech may be constitutionally regulated, which is centered around the corporate personhood argument, which imo isn't really settled law. The degree of collusion between private individuals and campaigns can and should have greater scrutiny as well.
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Apr 30, 2016 17:22
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BiohazrD posted:Make all bills be written using only the 100 most common words. American law should have the best words, imo.
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Apr 30, 2016 17:24
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fool_of_sound posted:That's not really the issue, campaign donations both constitutionally can be and are limited. Similarly, private individuals independently paying to advertise on behalf of a candidate or policy they support is both legal and constitutional so long as they are not colluding with a given politician. If a bunch of private individuals want to pool their money in order to better do this, that is also legal. And of course if somebody proposed a law that said that only political parties / candidates can run political advertisements, that would violate the first amendment. Got it.
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Apr 30, 2016 17:50
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