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AreWeDrunkYet posted:How did we end up with a ridiculously shaped district-based first-past-the-post wing of our legislature? Obviously you can point to a long series of contextually reasonable historical decisions and compromises, and the basis for many of these is so foundational to the US legal system that it would be almost impossible to rework without figuratively breaking the laws of physics. Yet the resulting policy is obviously substantially less democratic from all this - do you just shrug your shoulders because, by golly, we followed the appropriate process to get here? quote:e: And yes, quite literally, "you guys figure it out". Significant policy changes would introduce larger questions and contradictions in the existing body of law that would then be up to those trained lawyers to reconcile.
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May 1, 2016 18:08
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AreWeDrunkYet posted:How did we end up with a ridiculously shaped district-based first-past-the-post wing of our legislature? Obviously you can point to a long series of contextually reasonable historical decisions and compromises, and the basis for many of these is so foundational to the US legal system that it would be almost impossible to rework without figuratively breaking the laws of physics. Yet the resulting policy is obviously substantially less democratic from all this - do you just shrug your shoulders because, by golly, we followed the appropriate process to get here? Lumping together legally unrelated things here in a way that doesn't lend itself to a coherent answer because the the question itself is incoherent, you're also conflating upholding a bad law because there's no basis to overturn it with overturning a good law because it's unconstitutional. But if there was no way to ban gerrymandering without violating foundational principles of the bill of rights then yeah, I would shrug my shoulders. My intuition on the gerrymandering at least is that I think it probably violates the constitution, though I haven't put in the due diligence required on the issue to feel like I can assertively take a position. AreWeDrunkYet posted:You're also making the assumption that everyone involved is acting in good faith or that the competing interests are 'legitimate'. A bunch of intractable racists significantly slowed down the legal system on civil rights because woah there, we wouldn't want to upset this carefully balanced system constructed by historical racists. When the status quo is producing poor (undemocratic) outcomes, there may be value in damaging or introducing more radical change to the underlying system that's producing those results. So who gets to decide who's operating in good faith and who doesn't get access to the rule of law? This example is particularly funny because of how many civil rights advances were undemocratic outcomes that came about because courts stubbornly stuck to the process instead of telling people to get lost with their funny ideas about what due process of law meant.
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May 1, 2016 18:16
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Jarmak posted:which were absolutely correctly decided and basically revolve around stacking the court with justices that will decide cases based on what you want the law to be instead of what the law is, which is not the job of the Supreme Court. My proposal really wouln't overturn much; for example, the "money is speech" doctrine would stay intact. As to "absolutely correctly decided," a lot of people disagree with you on many of them, including four sitting Supreme Court justices. As to your final point, "what you want the law to be instead of what the law is" -- the law is quite literally whatever a majority of the Court says it is, almost as a tautology. The Court has more than one job. Part of its job is to protect the American people from injustice. There are many cases now considered absolute landmarks and cornerstones of our judicial system -- Miranda v. Arizona, for example -- where the Court essentially ignored all existing precedent and created new law. that was a good thing and exactly what they should have done. Conversely, well, Korematsu upheld the existing law at the time, precisely under your argument that Court just couldn't do anything to change the law -- "that is their business not ours." And Pontius Pilate washed his hands. There is no "what the law is." At best the law is a river with shifting banks and every single lawyer in the world is digging away at those banks with a shovel. For the thirty-odd years that followed the Lochner decision, the Constitution prohibited almost all regulation of contracts between employers and employees. Then West Coast Hotel came along and suddenly the government could regulate those contracts (and there was much rejoicing). Here, anyone with eyes can see that we have a massive crisis in how political campaigns are financed -- not just a direct crisis, in terms of actual corruption, but also a perceived crisis in that the public generally believes the system to be corrupt. Fixing both of those problems is a compelling state interest. We need a West Coast Hotel for campaign finance. There are only so many ways to fix the campaign finance problem though. Option 1: We need public financing of campaigns. There are a few things we can do here, but the best system I've seen was Arizona's and that was explicitly ruled unconstitutional -- again in a five-four decision; I've cited the dissents in that case extensively and agree with them; if you don't, I'd like to ask why. By itself, though, this won't solve the problem. For one thing, the money has to come from somewhere; for another, the amounts of money being thrown around are so huge that most public financing programs simply get outbid and drowned out. So Option 1 has to be paired some sort of limitation on the money hose. We can kink the hose at the inlet or at the outlet, but we have to do one or the other. So: Option 2: Limit or restrain campaign spending. This is the approach most other major democracies take (United Kingdom, Ireland, Japan, New Zealand, Canada, etc.) It has not ended in disaster. It does raise significant constitutional concerns for obvious reasons. The question is what is the minimal interference , the minimum amount of regulation, that's consistent with the ideals of free public debate protected in the first amendment and that will also prevent a situation where only people who can drop a million on a political candidate have their concerns heard. The "soft cap" of a light tax, with the money going to public financing of all competitors, seemed the least-restrictive still-possibly-functional restriction I could think of. And / Or Option 3: Limit or restrain campaign donations. This is what we were doing before Citizen's United blew the lid off. It's also somewhat constitutionally problematic given current American precedent. It really didn't work that well before and it works less well now. As above, a "soft cap" via a tax on donation, with the revenue re-directed into public financing of elections, seems the least restrictive measure that would address the issue. It certainly could be ruled constitutional -- hard caps have been, so soft caps could be. If someone else has decent ideas I'm all ears. But if you think the problem doesn't exist you're delusional. A number of people have proposed constitutional amendments but I have yet to see one that wasn't far more frightening than anything I've put forward. If your only counterproposal to address the issue is "well, the way I read this map, it says we have to drive off that cliff, so good thing I like Thelma & Louise!", well, that's definitely an opinion. Hieronymous Alloy fucked around with this message at 18:40 on May 1, 2016 |
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May 1, 2016 18:26
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There's some inherent irony in arguing that the rights of minorities will be subjugated if there isn't a strict adherence to decisions made on occasion by a 5 to 4 majority.
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May 1, 2016 18:36
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Kalman posted:I disagree. I deeply distrust government intervention in political speech (so should you) even as I am generally pro intervention in economic and social spheres. The basic issue here is not that people don't distrust government intervention in political speech. What you keep basically ignoring is that it's not the only issue at play. We are not discussing, in a vacuum, if the government should restrict political speech. We are discussing to what extent the corrupting influence of money on politics (both in direct corruption, and in the buying of friendly representatives through massive spending). What is at issue is how to balance the two: you are generally arguing for a categorical rule while we are arguing for balancing tests. The fundamental problem with your argument is that there is no real reason to believe the slippery slope argument of "well, first no ads within 60 days of the election using money outside the campaign finance system, tomorrow banning dissent!". That is what courts are for, and the basic principle being advanced - that in the service of the compelling governmental interest in the integrity of the democratic system, limited viewpoint-neutral restrictions that are narrowly tailored are permissible. This sort of balancing is absolutely standard practice for first amendment law, which constantly, constantly, constantly makes decisions along the lines of "well obviously this is a restriction on speech, but based on how much of a restriction and the type of restriction, is it permissible based on the interest being advanced, Now, as to the (frankly idiotic) harping on if this is a "content neutral" restriction, it clearly, clearly is. And because you're harping on your status as a lawyer (and some other idiot is trying to harp on it and I don't even know if he's a lawyer) I'll even give you a cite for a much more extreme case that was found to be content neutral: See Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986) (a zoning restriction on adult theaters is a "content-neutral" restriction because the restriction is targeted at the secondary effects of the adult video theater, despite that it targets adult video theaters). That is because what the court concerned about when it discusses content neutrality: "the fundamental principle that underlies our concern about "content-based" speech regulations: that "government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Id. And if you think that case is too old, it was cited as the basis for the holding that abortion buffer zones are content neutral (though overbroad and struck down on those grounds). McCullen v. Coakley, 573 U.S. ___ (2014) (can't find the direct cite without logging into westlaw, which I'm not doing for this). A flat ban on political advertising of all viewpoints is content neutral for the precise reason laid out in Renton: it does not discriminate based on views (and let's be very clear: the Court said that what was at issue in determining if something is content-neutral was the banning of unfavored views), so we can put that idiotic semantic derail to bed and the idea that this would constitute some radical departure from Supreme Court precedent when the only precedent it would overturn would be Citizens United - which itself overturned at least two decisions and probably many more. Now, so on the one hand we have the alleged slippery slope where if we allow content-neutral restrictions on political speech we are inevitably sliding into more and more severe restrictions on governmental speech - a stupid argument, because the Supreme Court would retain the ability to go "nope, that's not cool" just as it has when people tried to abuse any other situation the government is able to restrict speech (such as, say, when the government says "no signs...except for churches"). On the other hand, we've had a very long history of seeing the evils that insufficent restriction on campaign finance laws has created - and we've all seen the explosion of the power of special interests and superpacs post-Citizens United. It is fully consistent with First Amendment law to overturn Citizens United and reinstate McConnell v. FEC. With that stupid derail out of the way, the underlying facts make it clear that is also the preferable way to go: we have experience (2003-2010) with the horrors of legalized campaign finance, and we have experience (2010-present) with the post-Citizens United world of the value of freedom of monetized speech for all. The concerns that you raise did not come to pass: the concerns we've raised have come to pass. Looking at real-world facts, it's essentially incontestable that we're right: money has played a vastly increased role in our political system to the detriment of democratic values and the responsiveness of the government to the people. Now, because a balancing test is fully in line with 1st Amendment law - See - well, any first amendment decision you can name, but let's go with a bunch of the most famous decisions I can find expanding the 1st - Near v. Minnesota, 283 U.S. 697 (1931) (holding prior restraint was unconstitutional, but noting certain exceptions where the government interest might be so strong, such as wartime exigencies that might make that principle inapplicable); New York Times Company v. United States, 403 U.S. 713 (1971) (holding that the United States had failed to satisfy the "heavy burden" of showing a need for prior restraint of the publication of the Pentagon Papers); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (holding that while speech intended to cause emotional distress should not receive "much solicitude" and states are free to make it a tort, they may not make it a tort for "public figures" because of the need for a robust debate regarding public figures through satire and the lack of a legitimate standard to distinguish between satires that public figures may not recover for intentional infliction of emotional distress absent "actual malice"); Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991) (applying a balancing test to New York's interest in compensating victims from the profits of crime, but holding New York's Son of Sam law was not narrowly tailored to achieve that interest). There's many others but that's the limit of the legal research I'm willing to do in my spare time. So, it's clear beyond measure that a balancing test is an appropriate way to resolve conflicts between the 1st Amendment and other compelling governmental interests and that is reflected in virtually all First Amendment law (there's one Justice who always advocated a categorical interpretation, Douglas maybe, but that view was never adopted by the full court). It's clear that heming and hawing over what "content neutral" means is a red herring at best, as the use of the term fits Supreme Court precedent. An interpretation of the 1st that does not involve Citizens United is completely compatible with the 1st Amendment (as you can tell from the fact that it was for a long time, and CU was a 5-4 decision). And there's a century of precedent that avoiding the corrupting influence of money on elections and the governmental process is a compelling governmental interest (that not even CU tried to deny, it just subordinated it to its view of the 1st). So that is every legal argument out of the way for why we cannot overturn CU. And once we look at the real-world impacts - and testing the decisions about what principle ought to prevail in a case like this must look at the real world - we have an incredibly helpful real-world test - 2003-2010 vs 2010-present, where we can look at what the precise effects of CU were on the political process, and the freedom of speech. And based on those, it's pretty incontestable that we live in a better society when the 1st Amendment is interpreted to permit content-neutral campaign finance laws.
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May 1, 2016 18:39
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i did not bother with pin cites because those are a pain in the rear end without westlaw and i do not think my firm would appreciate paying a $500 research bill for my internet posting, i also did not bother to do the bluebook abbreviations because i have a moral opposition to bluebook abbreviations, terribly sorry
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May 1, 2016 18:43
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evilweasel posted:i did not bother with pin cites because those are a pain in the rear end without westlaw and i do not think my firm would appreciate paying a $500 research bill for my internet posting, i also did not bother to do the bluebook abbreviations because i have a moral opposition to bluebook abbreviations, terribly sorry I'm sorry, your firm is just going to have to accept that winning internet arguments is the most beneficial and public-spirited form of pro bono work there is.
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May 1, 2016 19:35
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evilweasel posted:i also did not bother to do the bluebook abbreviations because i have a moral opposition to bluebook abbreviations, terribly sorry Amen, brother/sister.
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May 1, 2016 19:56
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evilweasel posted:The basic issue here is not that people don't distrust government intervention in political speech. What you keep basically ignoring is that it's not the only issue at play. We are not discussing, in a vacuum, if the government should restrict political speech. We are discussing to what extent the corrupting influence of money on politics (both in direct corruption, and in the buying of friendly representatives through massive spending). What is at issue is how to balance the two: you are generally arguing for a categorical rule while we are arguing for balancing tests. The fundamental problem with your argument is that there is no real reason to believe the slippery slope argument of "well, first no ads within 60 days of the election using money outside the campaign finance system, tomorrow banning dissent!". That is what courts are for, and the basic principle being advanced - that in the service of the compelling governmental interest in the integrity of the democratic system, limited viewpoint-neutral restrictions that are narrowly tailored are permissible. You're citing only half the holding of Renton in a way that completely changes the context (and misses the point), also your description of why the court cited Renton in McCullen is completely wrong. The key part you're leaving out was that a big part of the reasoning of calling the zoning laws content neutral was that they were only a restriction on where the adult speech took place, not a ban on the speech. The court is arguing that the restriction is content neutral because the city of Renton was not trying to stop the adult speech from happening but rather control the time and place of the secondary effects of that speech, not its content. To stay with the bullhorn argument essentially it's like making a noise ordnance prohibiting concerts after certain hours, they're not trying to restrict the content of the speech they're just saying that sort of speech is inherently loud so you can't do it while people are sleeping, the restrictions you are trying to equivocate this to are based on stopping the content. Amusingly Brennan's dissent is based in part of complaining that the majority ruling leaves the door open for someone to come along and painfully stretch "secondary effects" like you are doing right now. The counter argument Playtime Theaters tries to make is that the zoning regulation violates the first amendment even if it is facially content neutral because it has a disparate effect on adult speech (the argument being the land where they were required to operate by the zoning law was too expensive so it effectively shuts them down), and it was Renton's shoot down of the "disparate impact" theory of first amendment that is being quoted in passing in McCullen not what you stated. McCullen's holding that the restriction was content neutral had absolutely nothing to do with the main holding of Renton that you're trying to cite as the basis of your argument (the basis of calling it content neutral was that it banned all speech within 35'). Essentially Renton was decided on the fact the justices squinted really hard and decided that the city's restrictions were really no different from its normal zoning powers and there was nothing to see here regarding the first Amendment, the case which that decision was primarily based on, Young v. American Mini Theatres was basically an instance of the court deciding zoning for adult entertainment is definitely okay and then no one could agree on a justification as to why; they're not particularly strong cases even if they were controlling (which they're not). You can't get away with calling content based restrictions content neutral by trying to claim that the content is only a secondary effect. If you ban bullhorns because it's 4am and the noise wakes people up that's content neutral, if you specifically ban those old political trucks driving around with megaphones from operating after certain hours that's content neutral, if you ban political speech over bullhorns because it's not fair that not everyone can't afford bullhorns so you need to equalize how much content people can put out there that is not content neutral. evilweasel posted:Now, so on the one hand we have the alleged slippery slope where if we allow content-neutral restrictions on political speech we are inevitably sliding into more and more severe restrictions on governmental speech - a stupid argument, because the Supreme Court would retain the ability to go "nope, that's not cool" just as it has when people tried to abuse any other situation the government is able to restrict speech (such as, say, when the government says "no signs...except for churches"). On the other hand, we've had a very long history of seeing the evils that insufficent restriction on campaign finance laws has created - and we've all seen the explosion of the power of special interests and superpacs post-Citizens United. I've already spent way too long reading SC decisions today so I don't have time to read everything you've cited in this second part right now but even taking your summaries at face value I'm not sure why you think they support you. Your own summaries of these cases seem to directly contradict what you're saying and form a very robust basis for saying prior restraint of political speech is not allowable except for in war-level extreme exigencies. edit: I need to learn how to proofread my posts edit2: My wife pointed out the irony of citing how a sloppy decided porn case was cited to justify suppressing political speech two decades later (even if it was thrown out on different grounds) as an argument for why sloppily deciding CU because we want a certain outcome won't have any carry on effects. Jarmak fucked around with this message at 20:24 on May 1, 2016 |
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May 1, 2016 20:08
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[quote="twodot" post=""459378061"] I suppose not. You can't simultaneously demand change, and not be able to describe the change you want. [/quote] "Unless you've written a book/made a movie/fought a war you can't be a critic"
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May 1, 2016 20:09
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Jarmak posted:You're citing only half the holding of Renton in a way that completely changes the context (and misses the point), also your description of why the court form a very robust basis for saying prior restraint of political speech is not allowable except for in war-level extreme exigencies. As I said above .--- the argument being made is that we are in exactly such an extreme emergency. (We're also in a war, but that's an aside). Hieronymous Alloy posted:
Ultimately the disagreement we're having isn't so much legal as factual. We're arguing over whether or not there is a crisis in the American political system brought on by problems with our lack of adequate regulation of campaign finance. If you agree that there's a crisis then everything being put forward is justifiable. If you don't think there's a crisis, then none of these proposals are justifiable because there's no compelling interest in fixing a problem that doesn't exist, but then AreWeDrunkYet posted: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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May 1, 2016 20:38
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Hieronymous Alloy posted:As I said above .--- the argument being made is that we are in exactly such an extreme emergency. (We're also in a war, but that's an aside). You've provided no basis for the idea that running political ads within 90 days of an election is corruption, never mind that even if we were to accept that as corruption arguendo you still haven't come remotely close to showing that said corruption is an exigency that rises to the level of a war. The idea that rich people can afford to support candidates of their liking more then poor people can is not corruption but rather an element of inequality. The idea that people must be equal in their ability to project political speech has never been established constitutionally as a compelling government interest so it's your responsibility to show why the constitution states that as the case. edit: Avenging_Mikon posted:"Unless you've written a book/made a movie/fought a war you can't be a critic" Actually it's more like unless you understand literature/film/war you can't be a critic. Or at least when someone who does tells you why you're wrong you should listen. Jarmak fucked around with this message at 21:57 on May 1, 2016 |
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May 1, 2016 21:54
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Jarmak posted:You're citing only half the holding of Renton in a way that completely changes the context (and misses the point), also your description of why the court cited Renton in McCullen is completely wrong. The key part you're leaving out was that a big part of the reasoning of calling the zoning laws content neutral was that they were only a restriction on where the adult speech took place, not a ban on the speech. The court is arguing that the restriction is content neutral because the city of Renton was not trying to stop the adult speech I don't think you get the concept of citing a case for a particular point. The specific point of citing that case is to put the dumb semantic argument people have tried to use and make it clear beyond dispute is that "content-neutral" is a reasonable way to refer to viewpoint neutral restrictions on political speech when discussing first amendment issues. It is made even more apparent how much you don't get the point when you say that the cases I cited regarding that there's always a balancing test aren't directly supporting my overall argument: that is precisely the point, even cases that strongly expand 1st Amendment rights always recognize a balancing test. f I wanted to cite cases specifically supporting the constitutionality of campaign finance (which I don't, because I'm making an argument about what the proper interpretation of the 1st Amendment should be), I would have simply string-cited all of the cases Stevens cites in his Citizens United dissent. There are intelligent arguments to be made in favor of CU - wrong arguments, but not crazy ones - but yours aren't one of them because you don't really even understand the discussion and you are poorly trying to shut it down because you don't have the capability to discuss it.
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May 1, 2016 22:49
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Hieronymous Alloy posted:As I said above .--- the argument being made is that we are in exactly such an extreme emergency. (We're also in a war, but that's an aside). The issue isn't really is it a crisis or an emergency, but is the issue at stake a compelling governmental interest (which is pretty obvious that it is, and it's been accepted as one for a century). It is every bit as constitutionally permissible to pass campaign finance laws to prevent the problem from occurring as it is to respond to the problem once it's already occurred. The fact it's already occurred and the results have been extremely bad is helpful in winning the argument over how compelling the interest is and what the relative harms are though because it takes it outside the theoretical realm of "perhaps this will just encourage more speech and nothing bad will happen" so you can go no, the results are bad, look at what happened.
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May 1, 2016 22:54
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Avenging_Mikon posted:"Unless you've written a book/made a movie/fought a war you can't be a critic"
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May 1, 2016 23:18
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You still haven't demonstrated actual harm or compelling interest, HM and EW. You just assert it, the Beck school of policy argument. And EW, you really should be better than to argue that semantics don't matter on the neutrality issue. Law is semantics. You're raising existing caselaw to argue for something that they don't support. You're citing Renton incorrectly. Content and viewpoint neutrality are different concepts, supporting different analyses. Discendo Vox fucked around with this message at 23:35 on May 1, 2016 |
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May 1, 2016 23:29
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evilweasel posted:I don't think you get the concept of citing a case for a particular point. The specific point of citing that case is to put the dumb semantic argument people have tried to use and make it clear beyond dispute is that "content-neutral" is a reasonable way to refer to viewpoint neutral restrictions on political speech when discussing first amendment issues. It is made even more apparent how much you don't get the point when you say that the cases I cited regarding that there's always a balancing test aren't directly supporting my overall argument: that is precisely the point, even cases that strongly expand 1st Amendment rights always recognize a balancing test. f I wanted to cite cases specifically supporting the constitutionality of campaign finance (which I don't, because I'm making an argument about what the proper interpretation of the 1st Amendment should be), I would have simply string-cited all of the cases Stevens cites in his Citizens United dissent. Yes, I understand the point for which you were citing the case, the case you were citing did not prove the point you think it did because you did not understand the holding and the reasoning behind it beyond ctrl-fing for statements that superficially shut down the argument I was making because you fundamentally don't seem to understand what "content-neutral" means. The fact that I took the time to connect the dots all the way back to the overall issue at hand to illustrate just how wrong that reading of the case is doesn't mean I didn't understand the reason you cited it. The reason I didn't understand the purpose for your other cites is because I didn't comprehend that as a point that you thought needed to be made, no loving poo poo everything has a balancing test. Even if you read the cases on viewpoint based discrimination there's an acknowledgement that it's not explicitly verboten but the balancing test is so strict that no one has thought up a plausible scenario that would pass muster (unless there's a newer case I haven't read where someone did). Amusingly enough despite you making this point content-neutral restrictions actually aren't subject to a balancing test because the doctrine itself is the result of a balancing test that's already been done (though they can be challenged for being over-broad, which is a different balancing test). I haven't even made an argument for CU, I've only pointed out your arguments thus far have been wholly awful, I haven't made an argument regarding the constitutionality of campaign finance restrictions. I've only made an argument that your interpretation of the first amendment is really loving wrong, not like we can disagree on this and a judge might see it either way wrong but wholly without merit, you clearly do not understand the case law at all wrong. The closest you got was citing a loving porn case which danced really close to the line of agreeing with the point you cited it for... but didn't, and then cited another case which was itself citing the same porn case for a completely different point then the precedent you were trying to prove wasn't "too old" (seriously it's from 1986, why the gently caress would that be "too old" anyway?). Like I'm not making absolute statements because I don't know any better about how you should never make absolute statements in regards to the law, I'm making them because your arguments are really that bad and it's shocking that an actual lawyer didn't realize just how bad they were after even a cursory google search.
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May 1, 2016 23:49
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Discendo Vox posted:You still haven't demonstrated actual harm or compelling interest, HM and EW. As I said on page 246: Hieronymous Alloy posted:Yup, this is the debate in a nutshell, at least from my perspective. The conclusion is well supported and easily inferable, but not conclusively provable in the sense that an individual person can be proven guilty, so lawyers and judges are by their training going to reject it. I've posted plenty of articles and studies demonstrating that the field of campaign finance is massively lopsided, that our government policies favor elites over non-elites almost to the point of oligarchy, that the system is seen as corrupt, etc. etc. etc. This non-representativeness means that the government has been unable or unwilling to solve or address the problems that most Americans are facing and has resulted in a genuine crisis. quote:This election — not only the Trump phenomenon but the rise of Bernie Sanders, also — has reminded us how much pain there is in this country. According to a Pew Research poll, 75 percent of Trump voters say that life has gotten worse for people like them over the last half century. http://www.nytimes.com/2016/04/29/opinion/if-not-trump-what.html The economy has been malingering for a decade; not a single Wall Street banker was prosecuted after the 2008 crisis; etc. It has also caused the public to embrace wilder and wilder candidates every election cycle in the hope that someone will finally listen, which is why Trump is a major candidate (and if Trump's candidacy isn't evidence of a crisis of democracy I don't know what is or could be). Or, in other words, 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? Hieronymous Alloy fucked around with this message at 01:06 on May 2, 2016 |
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May 2, 2016 01:02
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evilweasel posted:The issue isn't really is it a crisis or an emergency, but is the issue at stake a compelling governmental interest (which is pretty obvious that it is, and it's been accepted as one for a century). It is every bit as constitutionally permissible to pass campaign finance laws to prevent the problem from occurring as it is to respond to the problem once it's already occurred. The fact it's already occurred and the results have been extremely bad is helpful in winning the argument over how compelling the interest is and what the relative harms are though because it takes it outside the theoretical realm of "perhaps this will just encourage more speech and nothing bad will happen" so you can go no, the results are bad, look at what happened. Yes, absolutely. I'm just pointing out that arguing over whether or not there's a leak in the boat is relatively silly when we can look at the boat and tell that it, is, in fact, sinking.
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May 2, 2016 01:08
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Hieronymous Alloy posted:I've posted plenty of articles and studies demonstrating that the field of campaign finance is massively lopsided, that our government policies favor elites over non-elites almost to the point of oligarchy, that the system is seen as corrupt, etc. etc. etc. You haven't demonstrated jack poo poo. You posted a pair of press releases, one for a bad book and one for that godawful circular Princeton shitpile. You've demonstrated that some people spend more money on political speech than others, and such speech is sometimes influential. I already pointed out that "Billions of dollars flowing" doesn't mean corruption, and policy outcomes that favor a particular group, whatever their makeup, is not corruption. Kalman discussed this in greater detail. The "appearance of corruption" you describe has been explained to you repeatedly to be how a representative democracy works. edit: When you're citing to a David Brooks column as evidence, it's time to reevaluate your position. Your arguments are starting to resemble Trouble in River City. Discendo Vox fucked around with this message at 01:14 on May 2, 2016 |
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May 2, 2016 01:11
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What do you think would be sufficient evidence of corruption or the appearance of corruption to justify campaign finance reform? Is there anything you would accept short of an obvious quid pro quo scandal? edit: Discendo Vox posted:
Alternative explanation: even David loving Brooks has clued in that there's a problem. When even David Brooks is realizing that we're facing systemic failure of our democracy, maaaybe the problems's pretty goddam obvious. Hieronymous Alloy fucked around with this message at 01:21 on May 2, 2016 |
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May 2, 2016 01:17
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Hieronymous Alloy posted:What do you think would be sufficient evidence of corruption or the appearance of corruption to justify campaign finance reform? Is there anything you would accept short of an obvious quid pro quo scandal? Appearance of corruption isn't a sufficiently compelling interest to justify limiting political speech, period. So yeah, I'd require evidence of actual corruption, except that oh hey it turns out we have actual laws against actual corruption so the idea that we need reform against expenditures is always going to fail "least restrictive means" tests. (Direct donations are, and should be, different, because laws restricting those have an actual effect on actual corruption. You conflate the two because it's necessary to your argument.)
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May 2, 2016 01:20
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Hieronymous Alloy posted:As I said on page 246: I don't know enough first amendment law to argue anything, I just want to know to what extent do you think the first amendment (1) requires equality / egalitarianism in speech and (2) allows for it to be enforced? This goes to everyone, just curious about it. From what I remember of the campaign financing cases, Buckley rejected the egalitarianism idea, the cases afterwards embraced it, and then CU rejected it again.
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May 2, 2016 01:21
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EwokEntourage posted:I don't know enough first amendment law to argue anything, I just want to know to what extent do you think the first amendment (1) requires equality / egalitarianism in speech and (2) allows for it to be enforced? This goes to everyone, just curious about it. My understanding, and it's been a while since I've looked into it from that direction, is that equality of access was usually held as justified when there's not enough room to go around- the quintessential example is when there's a finite set of frequencies for broadcast media. At that point, you want to avoid one entity or faction being able to have a monopoly on the space, because it prevents anyone else from using the space at all. The actual importance of equality in a given medium has shifted in the court's viewpoint- when radio was a uniquely powerful way to command public attention, it was more important than when we had this big truck full of tubes-there, we can dump all the speech into it we want and not squeeze out other positions (there are exceptions to this in the internet context in reality, but they haven't become salient afaik).
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May 2, 2016 01:35
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The obvious answer is to establish a dictatorship of the proletariat that way we don't have to worry about how campaigns are financed because there won't be any elections to campaign for
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May 2, 2016 03:29
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Kalman posted:Appearance of corruption isn't a sufficiently compelling interest to justify limiting political speech, period. quote:Our campaign finance precedents leave no doubt: Preventing corruption or the appearance of corruption is a compelling government interest. See, e.g., Davis, 554 U. S., at 741; Federal Election CommLn v. National Conservative Political Action Comm., 470 U. S. 480, 496?497 (1985) (NCPAC). http://www.demos.org/sites/default/files/publications/AZ%20FREE%20ENTERPRISE.pdf (Kagan, dissenting; same link as before). WhiskeyJuvenile posted:The obvious answer is to establish a dictatorship of the proletariat that way we don't have to worry about how campaigns are financed because there won't be any elections to campaign for https://www.youtube.com/watch?v=exnaY0l4XsM EwokEntourage posted:I don't know enough first amendment law to argue anything, I just want to know to what extent do you think the first amendment (1) requires equality / egalitarianism in speech and (2) allows for it to be enforced? This goes to everyone, just curious about it. I'm not sure that's the right question to ask. I don't think the first amendment "requires" egalitarianism in speech; I think what you're trying to ask is to what extent the first allows for equality/egalitarianism in speech and allows such equality to be enforced? To answer that rephrased question, I think Evilweasel's post above did a fairly good job; you have to use a balancing test, balancing the first amendment's protections of free political speech against the compelling public interest of preventing systemic corruption and the appearance of corruption, or as in the examples Vox just gave, balancing people's right to speak vs. the limited availability of the broadcast spectrum, etc. As to the cases you mention, personally I think most of them were somewhere between half and three quarters "correct." I actually agree that for purposes of this discussion money is functionally equivalent to speech, and I find any hard cap or fixed limitation on how much individuals can donate or spend to be extremely troubling. But that doesn't mean we can't impose some degree of regulation, it just means we have to be careful to use the least restrictive appropriate regulations. Hieronymous Alloy fucked around with this message at 04:19 on May 2, 2016 |
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May 2, 2016 04:01
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It seems so blatantly self-evident that these contributions would (1) have a similar effect as a literal bribe and (2) be deleterious to a democratic republic that I don't even know how to argue with people who think otherwise. For me these points are axiomatic, on a level with "awarding aristocratic titles and rights is bad for democracy." I get that SCOTUS demands hard proof of compelling interest for curbing political speech, and of course that is how our legal system needs to work. But that democracy is unsustainable in a campaign finance system like this is just one of those common sense things so inextricably linked with human nature and how power seems to work that even the call for us to prove it strikes as odd.
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May 2, 2016 04:33
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Jitzu_the_Monk posted:It seems so blatantly self-evident that these contributions would (1) have a similar effect as a literal bribe and (2) be deleterious to a democratic republic that I don't even know how to argue with people who think otherwise. For me these points are axiomatic, on a level with "awarding aristocratic titles and rights is bad for democracy." I get that SCOTUS demands hard proof of compelling interest for curbing political speech, and of course that is how our legal system needs to work. But that democracy is unsustainable in a campaign finance system like this is just one of those common sense things so inextricably linked with human nature and how power seems to work that even the call for us to prove it strikes as odd. It's a rather large "correlation is not causation" fallacy. Money goes to candidate -> candidate gets elected and does things is not necessarily corruption. If the candidate already wants to do things and the money simply helps him get those things done, it's good old-fashioned democracy. If the candidate does things based on who is giving him money, then it's corruption. If you want to charge someone, you have to prove the latter is taking place. Now, a more complex dynamic is also possible. A potential candidate knows he can get a lot of money if he advocates certain popular positions. He then takes those positions (despite not actually believing in them), gets the money, wins, and does what he promised. Is that corruption? Or is that the will of the people working within the system? I find neither of your self-evident premises to be at all self-evident.
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May 2, 2016 04:52
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Deteriorata posted:It's a rather large "correlation is not causation" fallacy. Money goes to candidate -> candidate gets elected and does things is not necessarily corruption. None of these are even really the issue. It's not mere individual corruption, it's the danger of systemic corruption, i.e., what happens when all the candidates are only adopting positions that will get them donors, rather than positions that are "popular." We actually can tell this is currently happening because there are many political positions that are extremely popular with elites but not popular with the general public -- for example, Medicare cuts -- and those positions are routinely advocated for by political candidates; we can also see that there are many positions that are popular with the general public but not popular with elites, and those positions are not advocated for by candidates (see, universal health care). One reason that Bernie and Trump have both been relatively successful this cycle is that they've each managed to break the funding paradigm (trump via celebrity and personal wealth, Bernie via internet advocacy and small donor networks) and advocate for positions that are surprisingly popular but that elite donors have forestalled up till now in American politics. They're speaking to groups of people who have been effectively disenfranchised for decades (which is also part of why their supporters often get so frantic). It's easy to argue that that's a sign of health in the system -- "look, it can't be all that bad, Trump and Bernie exist" -- but Trump and Bernie are symptoms of mass disenfranchisement, not solutions for it. When people are frustrated repeatedly over time they turn to more and more radical alternatives, and millions of Americans are extremely frustrated by a system that comprehensively fails to represent them fairly.
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May 2, 2016 05:43
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EwokEntourage posted:I don't know enough first amendment law to argue anything, I just want to know to what extent do you think the first amendment (1) requires equality / egalitarianism in speech and (2) allows for it to be enforced? The U.S. is one of the few countries that doesn't have (enforceable, anymore) hate speech and/or blasphemy laws. The only equality you get under the 1A is the freedom from being censored by the government solely for being a hateful Nazi or a Reddit atheist in public. There is usually two sides of an argument in what NPR puts up or how airwaves are allocated sometimes but that's it. WhiskeyJuvenile posted:The obvious answer is to establish a dictatorship of the proletariat that way we don't have to worry about how campaigns are financed because there won't be any elections to campaign for I wish we'd establish a dictatorship to take away your posts. DeusExMachinima fucked around with this message at 05:46 on May 2, 2016 |
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May 2, 2016 05:44
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This poster loves police brutality, but only when its against minorities!
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Hieronymous Alloy posted:http://www.demos.org/sites/default/files/publications/AZ%20FREE%20ENTERPRISE.pdf (Kagan, dissenting; same link as before). Citing to dissents as your only evidence kind of suggests that you're wrong.
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May 2, 2016 05:49
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Kalman posted:Citing to dissents as your only evidence kind of suggests that you're wrong. If you have something to support your assertion that the appearance of corruption can never provide a compelling interest, feel free to provide it. (Hint: the Court almost never uses the word "never". Judges don't like limiting their options down the line). Hieronymous Alloy fucked around with this message at 06:20 on May 2, 2016 |
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May 2, 2016 06:10
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Hieronymous Alloy posted:If you have something to support your assertion that the appearance of corruption can never provide a compelling interest, feel free to provide it. I will elaborate as I was phone posting and brought two points together, failing to differentiate between donations and expenditures, which is the exact sin I've accused you of. Appearance of corruption is formally a compelling interest, but only insofar as corruption is quid pro quo corruption. (McConnell via Buckley.) Every case from Buckley on has been clear that independent expenditures do not give rise to a sufficient risk of quid pro quo corruption (which again, is the only kind we care about under compelling interest) to ever be regulable on that basis. This leads to a clear statement in CU, which is: "The anti corruption interest is not sufficient to displace the speech here in question", i.e., independent expenditures, by corporations or otherwise. There's also a ton of statements that you should consider that make clear that expenditures may provide influence or access, but that that isn't corruption but in fact is democracy. So, with respect to expenditures, which we disagree on appearance of corruption is categorically excluded. In contrast, with respect to donations, appearance of corruption can be sufficient since an inference of quid pro quo could be drawn. But then, we agree on that. Remember that Buckley, which originally struck down limits on independent expenditures back in 1975, was near-unanimous on that point, including Marshall, Burger, and Brennan. And even there, Buckley was essentially extending Mills, back in 1966. It's only a recent thing that liberal Justices have decided (some) political speech is bad. And just like Scalia was occasionally right, this is an instance where Ginsberg, Kagan, Sotomayor, and Breyer are wrong. I'd also point out that, to the extent people (not you that I recall) argue that we should try to equalize the ability of entities to participate in politics, that argument got shot down 40 years ago when Buckley said "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
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May 2, 2016 06:39
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Kalman posted:Citing to dissents as your only evidence kind of suggests that you're wrong. Again you and others have been asking for a means to implement changes or supposing that the changes they (Heronymous Alloy and others) describe are impossible despite a very clear rationale for why it is possible, that is due to the make-up of a court being impermanent. Even describing it as a dissent simply means that your complaint only holds as long as the notion remains in the minority of the court, which is allowing an avenue for that to at some point become a majority. Are you going to fall back on the idea that "oh my it will just break too much stuff" now?
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May 2, 2016 11:23
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Kalman posted:Citing to dissents as your only evidence kind of suggests that you're wrong. Why?
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May 2, 2016 13:58
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Kalman posted:I will elaborate as I was phone posting and brought two points together, failing to differentiate between donations and expenditures, which is the exact sin I've accused you of. Ok. Given what you've stated, then, is there *any* constitutional remedy that you would suggest or believe to be allowable for the problem of systemic corruption of the campaign finance system as a whole, as I spoke about up-thread, rather than mere quid-pro-quo corruption? Hieronymous Alloy posted:It's not mere individual corruption, it's the danger of systemic corruption, i.e., what happens when all the candidates are only adopting positions that will get them donors, rather than positions that are "popular." Refer back to this post I made about a page up-thread: Hieronymous Alloy posted:
Is there any permutation "pick two out of three" combination of those options that you think would be constitutionally allowable under current law? If not, what do *you* think needs to change about current law, or do you not think that there is a problem sufficient to demonstrate a need to change current law? In short, you got a better idea? Hieronymous Alloy fucked around with this message at 14:17 on May 2, 2016 |
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May 2, 2016 14:07
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Hieronymous Alloy posted:Ok. Given what you've stated, then, is there *any* constitutional remedy that you would suggest or believe to be allowable for the problem of systemic corruption of the campaign finance system as a whole, as I spoke about up-thread, rather than mere quid-pro-quo corruption? To your first question: there is no spending or expenditure cap remedy that is constitutional to affect systemic corruption because that poo poo isn't corruption under the law and hasn't ever been. I don't think you can pick two out of those three and have it be constitutional under your definition of donations. (I wish you wouldn't conflate donations and expenditures - it's completely inconsistent with how campaign finance has been discussed for going on 40 years, and your decision that the two are the same makes it difficult to take you seriously. They aren't, and shouldn't be, and the reasons are perfectly well articulated.) Public financing is inarguably constitutional, though certain embodiments trigger issues (specifically, anything that triggers equalization off of expenditures is both unconstitutional and also provides a trivial mechanism to subvert contribution caps.) Caps on spending or on expenditures aren't constitutional. Expenditures in particular aren't going to become constitutional in any meaningful way - even if you overturned CU and corporate expenditures were banned, the Adelsons and Kochs of the world would just spend their own individual money. In terms of what I think the problem is - I don't think our campaign finance laws are a significant problem. The idea that they disproportionately influence elections can be pretty much rejected in two words: Berning Bush. They also don't contribute meaningfully to corruption because access and influence aren't corruption. Politics should allow people to influence elections to get candidates they like elected - that's the whole loving point of participating in elections! Just because I dislike Republican policies doesn't mean I think that we should change the law in ways specifically meant to disfavor the people who like those policies. The cures are pretty simple: meaningful public financing and meaningful disclosure of expenditures, combined with an enforcement mechanism with both power and ability to punish coordination.
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May 2, 2016 14:25
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botany posted:Why? Because when your best evidence is a dissent, you're admitting that the law says you're wrong and hoping that it gets changed. When that hope flies in the face of 40 years of decisions (Bellotti also suggested corporate expenditures caps weren't constitutional and that's almost forty years old, it's just that no one bothered to challenge them in the interim) it's typically a forlorn one. I mean, everything I've argue goes out the window if there's a constitutional amendment to overturn CU/Buckley, but that constitutional amendment is never going to happen (and shouldn't, because political speech is more important than the appearance of access and influence, which in and of themselves aren't things we should be trying to eliminate.)
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May 2, 2016 14:28
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Eh, now you're conflating my arguments together. I've made distinct, separate arguments for limitations on donations and limitations on expenditures.Kalman posted:
But we've tried that, and it didn't work. There's a reason no presidential candidate takes public financing any more. The only way for a 'meaningful" public financing system to exist is to tie the funding level to the amount of money being spent (like indexing the minimum wage to inflation), but that's explicitly unconstitutional under Arizona v. Bennet as above. Similarly, there's no real way to make "meaningful disclosure" work when there are no restrictions on donations or expenditures by corporations or independent groups, because the money can just be run through a chain of shell entities until all trace is hopelessly muddled. Finally, it's probably impossible to develop an effective enforcement mechanism to enforce bans on coordination. It's too trivially easy to evade -- this probably being my favorite example, and enforcement would require an almost infinite amount of meddling with political campaigns; you'd need to interfere with and monitor campaigns even more thoroughly than enforcement of the drug war has driven police into the pockets and pants of every brown person in New York. So in short none of the poo poo you're proposing would actually do anything. Meanwhile, we can look at other countries where they have programs that, you know, actually work demonstrably better than ours . . . "The Constitution is not a suicide pact." We don't have to jump off a cliff just because current precedent says we do. Hieronymous Alloy fucked around with this message at 15:08 on May 2, 2016 |
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May 2, 2016 14:40
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Hieronymous Alloy posted:But we've tried that, and it didn't work. There's a reason no presidential candidate takes public financing any more. The only way for a 'meaningful" public financing system to exist is to tie the funding level to the amount of money being spent (like indexing the minimum wage to inflation), but that's explicitly unconstitutional under Arizona v. Bennet as above. You need to reread Arizona if your takeaway was "tieing the funding level to the amount being spent is unconstitutional." The specific scheme for doing so Arizona proposed was (and should be) because, like you, it treated campaign and independent spending as identical and treated personal spending as equivalent to campaign spending. A straight campaign-for-campaign matching provision would be fine. As to the rest of it, your "we've tried it and it doesn't work!" isn't accurate. We haven't tried most of it. And other countries have schemes that we reject on first principles - the cure there is far worse than the disease.
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May 2, 2016 15:13
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