09 September, 2008

Public financing and free speech

There's a good discussion underway under Cassady's last post, and I thought I'd move my thoughts out of the comments. In almost any conversation about public financing, the first objection (and rightly so!) always relates to free speech. On the one hand, rich and myopic interests are clearly skewing policy away from what is good for most people. But on the other hand, how do you limit this distortion without trampling on the individual's (even the rich individual's...) right to free expression? Cassady tries to thread the needle thusly:

Maybe the restriction [on political advertising] wouldn't have to extend to the public, but those announcements could be marked clearly as independent and not associated with any campaign.

First, I would just note that this is basically the system we have now. Under McCain-Feingold, 527s can spend as much as they want as long as they don't mention the candidate they are supporting. What this has led to, predictably, is a lot more negative advertising - most notably, the Swift Boat Veterans for Truth. So it's hard to say that this really enhances our political discourse, and Feingold, at least, has expressed frustration with this loophole.

But in a broader sense, its helpful to remember when invoking free speech that rights are not absolute. And critically, that they are not absolute not because the government is justified in curtailing them when it wants to, but because equally legitimate rights often come into contradiction with one another. One of the central insights of democracy, to me, is that given that various rights are always conflicting with one another, only a government based on consent of the governed can legitimately (and thus peacefully) mediate between the competing claims.

Slavery is a seminal, if ironic, example. Freedom of the individual and the sanctity of private property are two of the basic rights enshrined in the Bill of Rights, and in slavery they came into grave conflict. The irony (a tragic one) is that these rights conflicted in a way so fundamental to the economic and social order of the nation that democracy wasn't able to mediate between them; only force was able.

Hopefully campaign finance will not cause a civil war. But my point is that the free speech argument is often given as a deus ex machina that ends the debate without considering what other fundamental right that particular manifestation of free speech is infringing upon. In the case of "you can't shout 'fire' in a packed movie theater" that we all remember from grade school, the opposing right is that of citizens to not be subject to bodily harm. In the case of political contributions, I would argue that an equally legitimate right is being violated: the principle of "one person, one vote" that lies at the heart of representative government. This is the principle that we are equal, if not economically, intellectually, or physically, then at least politically and legally. But in the current situation, economic power is distorting political representation: an oil CEO and his buddies have many times the "vote" that I and Cassady have.

I think we have a hard time seeing rights like this because we are accustomed to thinking of them as absolutes - using language like "innate" and "inalienable". Which in some sense they are. But rights are also a balancing act, an outcome of continual negotiation. We'll get further if we start thinking of the problem in terms of the give and take between them. What particular balance, then, is best, and what kind of solution does this line of thinking lead us to? I'm still trying to collect my thoughts on that one.


Cassady said...

See, that what basically where I was leading my own thoughts on the matter. Admittedly, I couldn't do so in quite the clear, concise, and understandable way that Elliot always seems to have. (grumble grumble)

What I was envisioning out of some system of public broadcasting for political campaigns could be policed for content like a newspaper blog, hopefully eliminating senseless personal attacks and turning the focus to issues. If candidates don't like that, they're free to not choose television media.

Ok, that might be a bit much, but who knows.

The effect I'm looking for, I think, is that same that Elliot lays out: a leveling of the playing field such that average individuals regain some semblence of control over their government. This may be only one facet of the problem encompassed by campaign finance--the rich will always find a way to exert influence, I fear.

If nothing else, it would make election years more palatable.

Cassady said...

And I don't know about you guys, but I own Panama.

spencer said...

I think there is an alternative interpretation of constitutional rights that runs counter to what you're arguing here, which is that the rights enshrined in the constitution are there to prevent the government from doing things. The right to free speech prevents the government from censoring speech. Similarly, the government cannot prevent the practice of religion nor promote the practice of religion, and so forth. This is a purely legalistic interpretation of rights.

On the other hand, the principle of "one person, one vote" is NOT a right explicitly set forth in the constitution. And in a strict sense, this principle isn't being violated by any of the harms that campaign finance reform seeks to eliminate. Everyone still has one vote, it's just that some people are able to harness more persuasive resources than others.

Rights that only prevent the government from doing things will never come into conflict with each other. On the other hand, mere governing principles may come into conflict with other governing principles OR the rights outlined in the constitution. The legal question is, which has precedence? And it seems to me that the right must come before the principle.

I don't necessarily buy this argument--why should we work off of a governing document created hundreds of years ago?--but I thought I'd lay it out there.