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AreWeDrunkYet posted:This is a very Robertsesque argument. 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? 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. Very similar to the problem with getting courts to recognize the judicial system's institutional bias against African-Americans. The data is extremely clear in the aggregate, but always hard to prove in the individual case, plus it leads to a conclusion against the interest of judges ("my decisions are racist"), so courts refuse to accept it even though it's about as well established scientifically as global warming.
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Apr 28, 2016 17:14
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Tempest_56 posted:This is a core to the problem, really. Speaking fees are a great example - plenty of non- and ex-politicians get speaking fees without anybody saying boo, and there are plenty of legitimate reasons for organizations to want a big name to speak and are willing to pay for it. Can someone prove that Hillary was given the fee as a thinly-veiled bribe, or is it because she's one of the most well-recognized politicians in US politics in the last 30 years? What about Bill's fees? Does he get singled out from other ex-Presidents even though they're almost certainly using some of their money to support other politicians, solely because it's his wife and not his brother or son? What about Sarah Palin's idiot daughter and her speaking fees, is that a corrupt donation? If I get Al Franken for something, is it shady politics or do I just like his work as a comedian? I don't think it's possible to eliminate corruption; all we can do is mitigate. Other nations have managed to figure out how to have less inequality, more balanced elections, etc. We just need to change the Court's makeup and get justices in there that understand the need for campaign finance regulation, and then we need strong policies in place to limit the influence of big money as much as possible.
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Apr 28, 2016 19:56
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I think it's definitely possible to improve our current situation. Other countries do it better, and we did it better in the past. I don't buy the narrative that present day America's problems are uniquely intractable.
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Apr 28, 2016 21:18
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Kalman posted:Hahaha what the gently caress no we didn't do it better in the past. It's imperfect these days but it's not "donors handing over bags of cash anonymously to pay off politicians for votes is a regularly occurring phenomenon". We also did it worse in the past. " The past " encompasses more than the Gilded Age. For example, ten years ago, before citizens united, we limited political expenditures by corporations.
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Apr 29, 2016 00:53
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icantfindaname posted:You can make superPACs illegal without facing unsolveable existential questions about free speech. It's not hard, just appoint people to the court who agree with it Yeah this is basically what I was saying. People are acting like all we can do is throw up our hands when there are fairly obvious and straightforward steps we could take that would materially improve matters. We just need a different Court, one willing to accept the argument that there is a legitimate public interest in regulating campaign expenditures. Hell, a simple ruling that corporations (nonprofit or otherwise) do not have the right to donate to campaigns would drastically improve matters. Hieronymous Alloy fucked around with this message at 01:00 on Apr 29, 2016 |
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Apr 29, 2016 00:55
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Kalman posted:That wasn't actually better because political expenditures by corporations are fine. It's not a matter of blanket "they're fine" or "bad thing / good thing" It's a matter of to what degree they can be regulated.
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Apr 29, 2016 02:29
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Tempest_56 posted:I'll bite - how did we used to do it better? There's thousands of stories of political corruption (big and small) running rampant through the US government in more or less every era, so that claim seems kinda hollow. And what other countries are better about it, and what do they do differently that leads to those outcomes? Ok, sorry it took me a while to get back to this but I was preoccupied with extremely important viddygames. This article is a good summary of how other nations do it: http://prospect.org/article/how-our-campaign-finance-system-compares-other-countries As to how to fix it, what I'd propose is reverse these decisions: quote:On June 27, 2011, ruling in the consolidated cases Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (No. 10-238) and McComish v. Bennett (No. 10-239), the Supreme Court deemed unconstitutional an Arizona law that provided extra taxpayer-funded support for office seekers who have been outspent by privately funded opponents or by independent political groups. A conservative 5–4 majority of justices said the law violated free speech, concluding the state was impermissibly trying to "level the playing field" through a public finance system. Arizona lawmakers had argued there was a compelling state interest in equalizing resources among competing candidates and interest groups.[102] Opponents said the law violated free-speech rights of the privately financed candidates and their contributors, inhibiting fundraising and spending, discouraging participation in campaigns and limiting what voters hear about politics.[103] Chief Justice John Roberts said in the court's majority opinion that the law substantially burdened political speech and was not sufficiently justified to survive First Amendment scrutiny.[103] Then implement a 40% tax on campaign spending and dedicate the money from that tax to provide public financing to all parties who gathered 5% of the vote in the prior election. In other words, a content-neutral "soft cap" on spending coupled with public financing. I think this is as constitutionally valid as any other tax; after all, theoretically, ANY tax reduces your ability to speak about political issues (because money is speech for these purposes). Hieronymous Alloy fucked around with this message at 21:27 on Apr 29, 2016 |
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Apr 29, 2016 21:24
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Kalman posted:Taxing spending on political speech isn't content-neutral, though. It's sufficiently content-neutral that I think it passes constitutional muster (especially given the compelling state interest in ensuring a fair and free marketplace of ideas in political campaigns). You aren't taxing a particular opinion, you're just taxing discourse in general because discourse has costs that have to be paid for. If that really bothers you though, just make it a tax on all advertising period; all paid speech of any kind. We tax other constitutional activities (for example, we tax the purchase of firearms). No more controversial than charging a fee to broadcast on a particular frequency. Edit: do that and you could lower the tax rate pretty significantly too, advertising as a whole is a huge industry. Hieronymous Alloy fucked around with this message at 22:14 on Apr 29, 2016 |
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Apr 29, 2016 21:52
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Kalman posted:Taxing political speech as opposed to non political speech isn't content neutral. It's viewpoint neutral, which is different. It's content specific because it targets political content, but leaves alone (eg) entertainment content. Viewpoint based restrictions are a type of content restriction; this is in practical terms a semantic quibble. I encourage you to read Kagan's dissent in the case I referenced above http://www.demos.org/sites/default/files/publications/AZ%20FREE%20ENTERPRISE.pdf quote:Arizona's statute does not impose a restriction,j ante, at 15, or substantial burde[n],j ante, at 2, on expression. The law has quite the opposite effect: It subsidizes and so produces more political speech. We recognized in Buckley that, for this reason, public financing of elections ifacilitate[s] and enlarge[s] public discussion,j in support of First Amendment values. 424 U. S., at 92?93. And what we said then is just as true today. Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.
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Apr 30, 2016 02:54
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Kalman posted:As to Kagan, you had the key word in your post: dissent. That said, I'm not sure why you're pointing to a case about the constitutionality of public funding mechanisms. Because someone asked me what my proposal was to fix campaign finance in this country, and my response was to overturn that specific decision and then implement a system of public financing following that model? What do you think the discussion in this thread has been about? You're acting like 5-4 rulings are unchangeable truths; they aren't. The law is whatever the Supreme Court says it is, and the Supreme Court can be changed. In this instance, as Kagan clearly spells out in her dissent that I cited, preventing corruption or the appearance of corruption is a compelling interest that survives strict scrutiny. Hieronymous Alloy fucked around with this message at 03:25 on Apr 30, 2016 |
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Apr 30, 2016 03:15
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Kalman posted:Ok, so, see, we have laws to deal with this. They're called nuisance laws and time/place/manner restrictions. They explicitly apply to ALL speech. AS would my proposed tax on all advertising. From a quick google, in 2015, more than 180 billion dollars was spent on advertising in America. The center for responsive politics estimates the cost of all campaign spending in 2016 in America for 2016 to be 3.67 billion. (sources : http://www.opensecrets.org/news/201...are-of-the-pie/ , http://www.statista.com/topics/979/advertising-in-the-us/ -- just what I turned up in a fifteen second google). So a roughly 2% tax on advertising would be sufficient to completely fund all elections in America via public financing. It's content-neutral because all speech is taxed equally; it *increases*, rather than restricts, speech and public discourse (by substituting political for commercial speech, and by ensuring a wider array of voices are heard); and no one is meaningfully restricted from speaking in any way, because a simple even tax is no more restrictive than the fees already paid to license television stations for broadcast or apportion broadcast bandwidth. It's thus narrowly tailored to satisfy a compelling government interest; if you can come up with a less restrictive means of serving that same interest, please share. Hieronymous Alloy fucked around with this message at 04:33 on Apr 30, 2016 |
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Apr 30, 2016 04:23
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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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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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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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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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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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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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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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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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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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computer parts posted:
Well, there's another way a politician can be "corrupt," in the sense that the politician is not fullfilling the constituent's desires and is engaging in transactional relationships that run counter to the idea of representative democracy. The problem is not so much individual corruption, it's systemic corruption. The reality we're dealing with is that politics is not, in fact, purely transactional in the sense you're describing. The "vote for me, I do what you want" compact doesn't really exist, because politicians and media and advertising actively shape what voters want. Big Money actively shapes constituent desires, and a powerful enough donor (or, for that matter, media conglomerate) can wholly shape the expressed preferences of significant portions of the voter base (Fox News being the clearest example of this). It's not a perfect process at all -- part of the reason the modern Republican Party is a shambles is because the narratives they were selling got out of hand -- but it's real and it's a powerfully damaging force in our electoral process (as the rise of Trump shows). The "can you donate" transaction has functionally replaced or is in the process of replacing the "vote for me" transaction. Constituent voices matter far less than donor voices, because big enough donors let you sway (enough) constituents. As per the article I posted above, some 400 families have donated roughly half of all political spending dollars so far in this presidential cycle. The interests and desires of those elites -- people who get listened to and paid attention to because they're willing to drop immense cash -- are in danger of drowning out the problems and concerns of everyone who isn't a millionaire. This isn't "corruption" in the sense that there's a quid pro quo, but it is a corrupt system, in the sense that the system is not serving the goals and desires of the electorate, but is instead serving the goals and desires of the elites. (This is also why each of the last three or four political cycles has had a major "throw the bums out" theme, and that said theme has gone increasingly manic over time; people know their government is not serving them or their desires or interests, and they're resorting to increasingly radical candidates because nothing else is working. Kawasaki Nun posted:How jeopardized could the free market of ideas possibly be with the presence of a lightly regulated internet? How much has politics really changed since citizens united? Am I crazy in thinking that the level of activism and hand wringing over citizens united and campaign finance issues are a bit overblown? Eliminating Super PACs wouldn't somehow magically restore people's faith in the government. I'm not saying it would hurt, but using that as a the justification for some kind of major legal shift seems like it would need to be fleshed out pretty significantly. What I'm proposing isn't some unprecedented revolution, or at least, it's no bigger a shift than has happened plenty of times before in the Court's history (the overturning of the Lochner era cases, etc.). It's no constitutional amendment and there are plenty of supreme court opinions that can be cited in support of what I've proposed (as I did above). Admittedly almost all of them are dissents, overturned cases, or cases where I'm leaning heavily on the "absent a compelling interest" clause, but it's all supportable or justifiable from existing precedents. quote:
That was an extreme example as a hypothetical. Realistically most of the decisions we've discussed were 5-4 and included Scalia. Appoint a new Souter to Scalia's empty seat and this all becomes at least theoretically possible. Jarmak posted:Lets not pretend here that most lawyers understand the law outside of the particular subset they practice, and even half of those have just memorized everything without actually internalizing any of the why. I've observed way too many lawyers being completely loving wrong and/or missing the point, in court in their fields of practice even, to not reflexively eye roll at this comment. The only difference between a lawyer and a nonlawyer is the ability to finance law school & the bar exam. That said, it's only a matter of time before some idiot gets dinged for malpractice for saying "I am a lawyer and I think X is legal/illegal" on an internet forum and then some drat fool takes that advice and relies on it to their detriment. quote:"Slavish devotion to documents" is the very foundation that modern liberal society rests on. The idea that using money to purchase television ads isn't a form of speech is loving ridiculous on the face of it and the countries that manage to limit it (I'm assuming Canada is one) do so because they do not have the free speech guarantees in their respective constitutions/governing documents that the US has. For the record, I think I've been pretty clear that I agree money is speech for the purpose of this discussion. I'm just saying the discussion doesn't end there. WhiskeyJuvenile posted:Unless it wouldn't, because he's making a bog standard crit argument as to how the Court works Yes, and thanks. Hieronymous Alloy fucked around with this message at 22:44 on Apr 30, 2016 |
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Apr 30, 2016 22:38
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Jarmak posted:No his posts are absolutely correct and you don't get to just hand waive away away the fact that your ideas as presented are fundamentally incompatible with the first amendment and break poo poo tons of precedent-driven systems of law by saying "no man I'm just talking about what it should be". \ He made the crack about "people who aren't lawyers shouldn't argue law" at me, and "handwaving" wasn't even remotely what I was doing. Everything I proposed was grounded in constitutionally valid arguments and interpretation. Not the interpretations that are currently the majority view of the court, admittedly -- as I myself pointed out -- but certainly positions that have plenty of support in dissents and older, now-overturned decisions (which I cited) and positions which the court could legitimately adopt once Scalia's seat is filled.
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May 1, 2016 17:30
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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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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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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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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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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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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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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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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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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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Kalman posted:
Wait -- we're going backwards then. Earlier in the thread you said you agreed the Arizona decision should be overturned. The problem is that for this issue -- systemic corruption -- campaign spending, independent spending, and personal spending are functionally identical. The reason for that distinction is that some forms of spending give rise to the appearance of quid pro quo corruption and others don't (or rather don't to the same extent or in the same way). That isn't the concern here; the concern is a money Niagara drowning out all dissenting voices. So the cure has to be tied to the overall level of money spent in order to work. If it isn't, the private money just drowns out the public money, and the public funding system is abandoned and/or useless, and people end up literally buying elections. This is precisely the issue that Arizona was trying to address. quote:- the cure there is far worse than the disease. I think you need to support your premise here; Canada, the UK, New Zealand, etc. aren't exactly totalitarian hellholes. Kalman posted:Nah. Case law's on my side regarding this. Arizona was a five-four decision and the court has an open seat at this very moment. Hieronymous Alloy fucked around with this message at 15:43 on May 2, 2016 |
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May 2, 2016 15:34
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euphronius posted:Well we've now moved from corruption to "systematic corruption". I don't what that is. That's part of why campaign finance is more a legislative issue than a judicial one. The problem is the Court keeps tossing out legislative attempts to address it.
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May 2, 2016 18:43
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I would posit that the problem is not that the government is democratic or non-democratic, bit rather that it is profoundly neglectful of the needs of its citizens. We aren't living in an age of noblesse oblige; we are living in an age of gently caress you, got mine. Hell look at the crisis in Puerto Rico. Whole island with millions of American citizens getting flushed down the toilet because Congress doesn't give enough of a poo poo to bother to fix the problem. Partly it's that Puerto Rico isn't represented, but the larger issue is that hedge funds matter more to Congress than poor / brown people do, even when those people are citizens. The problem is purely a legislative creation and the fix is straightforward and the harm is demonstrable and massive, but all we hear from Congress is crickets, because financial interests prefer crisis to bankruptcy. Hieronymous Alloy fucked around with this message at 18:09 on May 3, 2016 |
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May 3, 2016 17:56
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botany posted:I thought Puerto Ricans weren't technically American citizens because it's a colony or foreign holding or some other category. What actually is the status of Puerto Rico? It's a territory. Puerto Ricans are citizens but people living in Puerto Rico are not directly represented democratically in Congress.
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May 3, 2016 18:16
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Discendo Vox posted:Places like NMI and PR are a bit of a mess from multiple directions. On the one hand, their current government systems are heavily dysfunctional, as are their economies. On the other, entry into statehood (or independence, for that matter) would likely make the problem much, much worse, rather than better. These locations are able to sustain themselves in large part because they receive many of the benefits of federal oversight, without many of the regulatory costs. This is related to why many non-US tax havens are tiny protectorates without significant alternate economies; they survive specifically by functioning on the margins of their competitors. There's not really a clean solution, although domestic anticorruption reform would be a start. Puerto Rican statehood is probably worth talking about in another thread, but wasn't the reason I raised the example. The discussion we have been having is over whether or not systemic corruption is a problem, or conversely if the large scale influence of big money in politics "is democracy" as the founders intended and not at all a problem but a sign the system is working as intended. Puerto Rico's current situation is the endpoint on that spectrum, not a slippery slope but an actual concrete present reality in America under current law. Their crisis is entirely a creature of legislative incompetence. The solution to their (short term financial) crisis is obvious and straightforward: either restructuring or bailout. But those solutions are barred because Congress does not care that hospitals in Puerto Rico are without power or that a doctor is leaving the island every day. All Congress cares about is that hedge funds oppose the bailout because they will be able to profit off of the incipient default. You can argue that the problem is different because PR lacks congressional representatives, but there are millions of people on the mainland who vote and have family on the island ( and the lack of representation is itself a function of long term political gridlock). Congress doesn't care. If our government were not corrupt, if our system of government was working, Puerto Rico would not have defaulted yesterday. But it did, and the reasons why are clear, and clearly demonstrate the existence of an actual problem: our government does not care about its citizens, it only cares about money. Central to the foundational notions of our Republic was the idea that the elected representatives would be responsive to the needs of the citizenry -- the whole citizenry, not just the wealthy. Big money and manufactured consent have overturned that presumption. Hieronymous Alloy fucked around with this message at 22:50 on May 3, 2016 |
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May 3, 2016 22:39
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EwokEntourage posted:If by whole citizenry you mean land owning white males, then maybe yes? Even then it's a stretch to say that the wants and needs of the wealthy weren't first and foremost. Eh, not really. Well, yes as to the "white" part, but the whole idea of having a Republic was that the general mass of people would select the best & brightest to represent them. Federalist No. 10 came out of the closet to say posted:The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. http://avalon.law.yale.edu/18th_century/fed10.asp The idea was that the mass of people would select the best and brightest (and wealthiest, yes) to represent them, and then in turn those best and brightest would govern in the interest of all (well, all citizens / white people). That's all well and good as far as it goes, but it leaves the door open to demagogues and so forth. This was one reason that the duel between Hamilton and Burr went down -- Hamilton viewed Burr as an unprincipled incipient demagogue (the Trump of the day) and a threat to the Republic. The founders also didn't really have a conception of things like modern mass media manipulation, manufactured consent, or the sheer scale of the modern corporate state (when Alexander Hamilton died, there were only five securities traded on the New York exchange). The thought that social conventions (the idea of noblesse oblige, which was Washington in a nutshell) and the sheer territorial scale of the United States would suffice to prevent collusion and large-scale corruption. Modern media operates at a scale they didn't comprehend. Fundamentally, though, the whole idea of having a Republican government by elites was precisely because they thought the elites were the best positioned to govern for the benefit of all citizens; it wasn't because they thought our modern war-of-all-against-all, gently caress-you-got-mine kleptocratic corporatism was a goal to be strived for. They would have been absolutely horrified by it (especially Madison and Jefferson). Hieronymous Alloy fucked around with this message at 03:13 on May 4, 2016 |
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May 4, 2016 03:08
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Quoting the federalist papers in a discussion of constitutional law is pretty much the opposite of going "further and further afield"; it's the wellspring, not the delta. That said, I don't really see how anything you're quoting there contradicts or undermines anything I've said. Just like modern technological developments in arms has required some re-interpretation of the 2nd amendment (silencers, machine guns, etc.), modern mass media has diminished the balancing effect of territorial disparities and reduced the ability of the Republic generally to counter demagogues and scam artists who take on the role of politician. Our immune system was regions balanced against one another; that's breaking down. Hence, we're more vulnerable to systemic corruption, and we need to adapt our interpretation of the 1st, and the principles behind it, to account for that newly developed issue. As I said above, Trump is a symptom of disease, not a sign of health. In a well-functioning Republic he would never have been a serious candidate; he's only gaining prominence because that many Americans are exactly that fed up and that desperate with a system that does not serve their interests or needs. Hieronymous Alloy fucked around with this message at 05:31 on May 4, 2016 |
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May 4, 2016 05:27
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