Date: 2010.01.25
Campaign finance and free speech
The recently voided portions of the McCain-Feingold law limited political speech. Without denying that, I believe there are several countering points to be considered. This point has been on my mind recently. I think I will vent it here.
Speech is "free" but space and time for it is not unlimited. The argument that free speech should only be countered by other free speech and not by legal limits ignores that airtime and effective publishing is a limited resource. Should well funded corporations be allowed to purchase all prime time advertising time to the exclusion of candidates? How would that affect a candidate's right to speech? We set time limits on debate answers. A similar reasonable restriction is required on a broader level.
We do not balance "free speech" by enforcing libel restrictions. We allowed parties, candidates and corporations to speak without fact checking. Whether it is "swift boaters" mis-truths, or Martha Coakley's mailings on Scott Brown's stance on rape and contraceptives (which he filed lawsuits opposing), we've put looser limits on the truth of content preferring instead limits on access to media. Surely this balance was not perfect and is now even further skewed towards those that would fictionalize, exaggerate and spin.
We limit speech already in situations where unfettered speech endangers individuals. From the cliched "fire in a theater," to inciting riots, to threatening violence, organizing criminal conspiracies, publishing certain forms of pornography - the list of restricted speech is quite long. The noise of corporate political advertising is a direct harm to candidates attempting to communicate to voters their intention if elected. A candidate has the challenging of task of establishing a set of commitments with the electorate. Muddling, confusing and misrepresenting a candidate's stances is harmful to our democracy, which requires an honest and audit-able commitment between voter and candidate - the foundation of which is clear communication.
Free speech, in the context of an election, is further restricted by the deadline of the election day. The law allowed ample time for corporations or assemblies of like minded individuals to state their opinion and then allowed candidates and parties a grace period ahead of the election deadline to counter that argument. Producing effective speech takes time. Allowing moneyed interests to prepare and queue unlimited advertising to be released immediately before an election is unfair to candidates. We restrict the distance between political advertisers and polling places in the physical world. It is not unreasonable to establish a similar restriction in our publishing world.
The ruling, to the best of my knowledge, does not distinguish non-profit assemblies from profit seeking corporations. Yet these are very different institutions with different motivations. Perhaps an organization founded only to raise money to speak a political opinion should not be restricted equally to a corporation existing only to profit its shareholders. And if an organization raised only to issue political speech feels the need for liability protection in the form of incorporation, perhaps we should be considering a different point here entirely.
I agree with the ruling in the ideal. In the real world, though, I severely regret this decision and worry about its consequences on our already loud and fractured political conversation.