Ethics Quote Of The Month: Constitutional Scholar Floyd Abrams

This is a long quote, and deserves to be.

You can read it in its entirety here.

Wacky!

Wacky!

The whole quote is the testimony of Floyd Abrams, the renowned Constitutional lawyer who argued Citizens United v. Federal Election Commission, before the U.S. Supreme Court, regarding a cynical Constitutional Amendment, S.J.19, ostensibly proposed to change the First Amendment so Citizens United can be overturned, but really as a campaign issue, since the chances of amending the Constitution are nil, and they know it. This proposed amendment is the Left’s equivalent of the despicable flag-burning amendment pushed by Republicans in the late Eighties, just as disingenuous, just as offensive to free speech, equally constricted to appeal to voters who don’t understand what free speech is.

The Citizens United opinion has been blatantly misrepresented by everyone from Occupy Wall Street to the President, and continues to be a source of political deceit by Democrats and their allies in the media, often out of ignorance. If you have friends who are prone to say silly things about “corporations being people” and “billionaires buying elections,” you should tell them to read Abrams’ testimony, and learn some things they should have learned in high school.

Some highlights (there are many more):

  •  “The description of the constitutional amendment it proposes states, in its text, that it “relate[s] to contributions and expenditures intended to affect elections.” That’s one way to say it, but I think it would have been more revealing to have said that it actually “relate[s] to speech intended to affect elections.” And it would have been even more revealing, and at least as accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that….”
  • “Of course, many of the Court’s opinions have been controversial. Some have not withstood the demands or judgments of history. But no ruling before and after that in the Citizens United case, providing First Amendment protection, has ever been reversed by a constitutional amendment. No speech that the Court has concluded warranted First Amendment protection has ever been transformed, via a constitutional amendment, into being unprotected speech and thus a proper subject of criminal sanctions. In fact, no amendment has ever been adopted limiting rights of the people that the Supreme Court has held were protected by the Bill of Rights in any of the first ten amendments….”
  • “The proposed amendment you meet today to consider deals with nothing but political campaign speech. It does not deal with money that is spent for any purpose other than persuading the public who to vote for or against and why. As such, it would limit speech that is at the heart of the First Amendment. And S.J. 19 does so in a sweepingly broad manner. It would not only effectively reverse the Citizens United ruling and cases such as McCutcheon that followed it but also cases that long predate it. Most tellingly, it would reverse Buckley v. Valeo, the 1976 decision joined in by such free expression defenders as Justices William J. Brennan, Thurgood Marshall and Potter Stewart. S.J.19 rejects the central teaching of Buckley that Congress may not, for the asserted purpose of “equalizing the relative ability of individuals and groups to influence the outcome of elections,” limit the spending and hence the speech of those who wished to participate in the political process by persuading people who to vote for or against and why.[4] Under Buckley, individuals and groups are thus free to make independent expenditures in any amount in the election process. In the most memorable observation of the Court in Buckley, it observed that 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 ….”[5] Yet that is precisely the notion, in the name of equality, that is at the heart of this proposed amendment.”
  • “The title of the proposed amendment goes even farther, claiming that it would “Restore Democracy to the American People.” The notion that democracy has already been lost, as we begin what will obviously be a hard fought election season in which virtually anything can and will be said, could be dismissed as rather typical Washington rhetorical overkill. But the notion that democracy would be advanced – saved, “restored” – by limiting speech is nothing but a perversion of the English language. It brings to mind George Orwell’s observation, in his enduring essay “Politics and the English Language,” that “[i]n our time, political speech and writing are largely the defense of the indefensible,” and that the word “democracy,” in particular, “has several different meanings which cannot be reconciled with each other” and “is often used in a consciously dishonest way.” So let me say in the most direct manner that it is deeply, profoundly, obviously undemocratic to limit speech about who to elect to public office.”

Read it all. While you are doing so, think about how dishonestly and really incompetently the news media is reporting this issue. To begin with, consider the hypocrisy of employees for large media corporations who have unethically and in betrayal of the duty their profession has to the nation used their power  to broadcast and publicize their own political views trying to muzzle citizens who gather their resources to achieve a fraction of that impact, and unlike the news media, do not do so under a false guise of objectivity and professionalism. Also ponder the likes of the Washington Post’s Dana Milbank, who while endorsing the goals of the amendment in a column, wrote this about Sen. Ted Cruz’s attack on the bill:

” [L]et me assure you that much of what the Texas Republican said at Tuesday’s Senate Judiciary Committee hearing was just as wacky and reckless as usual. Cruz alleged that Democrats, in proposing a constitutional amendment to limit campaign contributions, “support repealing the First Amendment,” would “abandon the Bill of Rights,” were seizing “the power to ban books and to ban movies,” and favored “politicians silencing the citizens.”

“Wacky.” Milbank not only doesn’t understand the issue, he didn’t research it either. In the oral arguments for the government supporting the Federal elections laws that were struck down, the government’s lawyers, including now Supreme Court Justice Elena Kagan, argued that the law gave the government a right to ban books (under certain circumstances, of course, so no worries!)  and the case itself was about banning a movie!

If Milbank really thinks what Cruz suggested was so “wacky,” he should be supporting Citizens United v. Federal Election Commission. Instead, he is either lying to his readers or passing along his own inexcusable ignorance.

_________________________________

Sources: Washington Post 1, 2; Reason

 

20 thoughts on “Ethics Quote Of The Month: Constitutional Scholar Floyd Abrams

  1. Thanks Jack for posting this. I get into a lot of heated debates about Citizens United. I try to assert that no amount on money can change the mind of an individual that understands the issue at hand. Money for advertisements is nothing more than speech and limiting the money limits the speech.
    Last time I checked George Soros, and the Koch Brothers only got to tally one vote each.

    • I think you hit the nail on the head there when it comes to an informed voter… But what percentage of the American population do you think is informed. We talk about the Cantor/Brat nomination, and how Cantor spent more at Steakhouses than Brat did in total, and how it’s a stellar example of how money does not buy elections…. And then we look at the vast majority of other elections where the highest bidder did win, and we’re forced to look at cases like that as outliers.

      And then, we come back to the question of fairness. Is it fair that the wealthy can get behind people they think will represent their positions? Absolutely! Is it fair that they support people from coast to coast? There’s an argument, because the party they support will represent their positions. Is it fair that they contribute more than the average person makes in a year? No…. no that’s where it breaks down.

      It’s a tough concept to come up with a good answer. Would limiting contributions limit speech? Yes. It’s intellectually dishonest to say otherwise. But people are literally trying to outspend their opponents in an effort to buy elections in a system that basically awards them for doing so, your political system is for sale.

        • Not always, but usually. Brat was unusual. He’s an outlier. There is a direct positive correlation between the difference in campaign dollars spent between the parties involved and election results,

          • Which is a better predictor? Money raised or money spent? I suspect it’s the former, being able to get voters is strongly correlated with being able to raise money.

            Unfortunately, existing numbers are based on a system that has our current campaign financing laws, and we can’t really use them to predict what would happen with unrestricted spending. In addition to direct effects in the form of more adds, we would have to deal with the possibility that a 1 billion donation from one rich donor would have a net negative impact on a campaign by turning off members of the general public. What would happen to any supposedly environmental candidate received a huge donation from Exxon which mysteriously got leaked from inside Exxon just before the election? Diminishing returns, weird threshold values, etc. make it effectively nondterministic.

            http://themonkeycage.org/2011/11/04/does-money-affect-election-outcomes-in-us-politics-a-quick-review-of-the-literature/ covers some of the issues.

      • Dear Humble
        So what is worse a political system in which people choose to remain woefully ignorant of the issues before them and then complain when their positions are not reflected in the messaging or outcome. I ask you this, What if the message, coming from the opposing side was one that would lift you up economically, but you having grown up with the perpetual drumbeat from the leadership that the other side is bad, has been led to believe otherwise, won’t it take more money to convince you to think another way? Obviously, yes.

        Nothing stops any person or group from amassing large sums of money collectively to fend off the countervailing voice. The Obama camp raised tremendous amounts of money from small donors in the run up to the 2008 election. But, more importantly, nothing stops them from voting their interests irrespective of the amount of money spent on trying to convince them to change their minds. The highest spender may have won but that does not mean they bought the election. It simply means one of two things: The message resonated with the voters or those that opposed the candidate did not choose to vote their conscience or vote at all. Unless it is proven that the candidate delivered a direct pecuniary benefit for to each individual for vote cast then the politician did not buy the election.

        The Brat win may not be an outlier as you suggested. That is a mere rationalization by people that need to show that money buys elections. It may be as you say, but it is equally as likely that it may be that the people were fed up with Cantor’s desire to be a national figure instead of their representative. They gave him six terms to do the job.

        You also asked if something was fair. Define fair. Is it fair to future generations to burden them with so much debt that it cannot be paid off? Is it fair that some districts elect people who win by castigating everyone that is not the same skin color as the proximate cause of their problems and economic disparity? Also, there are limits to which a person can contribute to a given candidate. If you are suggesting that we limit contributions to PACS, then we would also have to limit the funding of the Sierra Club and other environmental advocacy groups. They are issue groups just like PACS. Labor unions would also have to be proscribed from using it funds from promoting its political agenda. The point is, simply because I don’t have the money to speak out against a perceived tyranny does not mean that I am without power. Nothing prevents me from shouting from the rooftops for all to hear.

        The problem with the use of the term fair is that we all get to define what that term means in our own minds. For those who think something is unfair all they need to do is get off their butts and do something to change the situation. What is grossly unfair is to say to one group – “stop advancing your own agenda so I don’t have to work as hard to get my way”. That was why the proposition to impose limits failed.

  2. Jack,

    You know where I sit in the political spectrum, but even I am blown away by the sheer dollar amount spent per capita on your elections by billionaires and corporations, as well as the money your politicians take on a daily basis (see your recent post about the fellow who was put off he didn’t get his bribe). While I can’t get behind limiting speech, banning movies, or books, I don’t equate the words “money” with “speech” which is necessary for a lot of these arguments to function.

    Money is a store of value, a medium of exchange, a vehicle of investment, but it is not speech. I don’t like what The Young Turks put out very often, but I think it’s healthy to at least listen to dissenting opinions, even if it’s only entertainment value. They made the point, and I kind of liked it, that if “money” was “speech” than purchasing sex from prostitutes shouldn’t be illegal, because you aren’t paying for sex, you’re talking them into it.

    And then, once you stick your head in that particular gutter, the similarities between prostitutes and politicians becomes much more clear.

    We talked about Stephen Colbert, Jon Stewart and the jester’s privilege before, and one of the things I said was that they stretch the privilege by wading into straight politics in some very influential ways. One of those was when Colbert waded into a republican primary, and started picking at superpacs in particular.

    “On March 30, Colbert hosted former Federal Election Commission (FEC) Chairman Trevor Potter on the program to help him fill out the paperwork for the PAC. On April 14, Colbert revealed that Viacom, which owns Comedy Central, sent him a letter denying him permission to establish a PAC, but Colbert had Potter back on the show, who explained to Colbert and his audience that as a result of the Citizens United decision, Super PACs can be formed, which are less restrictive than regular PACs.

    Colbert filed a request with the FEC asking for a media exemption for coverage of his then-prospective Super PAC on a May 2011 episode of The Colbert Report. The FEC voted 5-1 to grant The Colbert Report a limited media exemption during a June 2011 public meeting. Following the hearing, Colbert formally filed paperwork for the creation of his super PAC with the FEC secretary. The FEC approved Colbert’s bid to form a Super PAC on June 30, 2011.

    Troubled by the fact that large corporations were not donating to his SuperPAC, on September 29, 2011, Potter explained that corporations prefer to remain anonymous when supporting political causes. Therefore, he helped Colbert set up in Delaware a 501(c)(4) shell corporation to which donations can be given anonymously without limit and used for political purposes, similar to American Crossroads. It was initially named the “Anonymous Shell Corporation”, but according to the Delaware Secretary of State’s Office the official name was changed to “Colbert Super PAC SHH Institute” on the same day.

    Donations made to the shell corporation could be funneled to ColbertPAC without disclosure of the ultimate source of the donation. When Colbert asked what the difference is between this and money laundering, Potter answered, “It’s hard to say.”

    Colbert was the sole board member of the shell corporation and initially served as president, secretary, and treasurer of his organization, whose stated purpose was to educate the public. However, the organization could legally donate to his Super PAC, lobby for legislation, and participate in political campaigns and elections, as long as campaigning is not the organization’s primary purpose. Colbert’s organization could legally accept unlimited funds which may be donated by anonymous donors. Since the FEC doesn’t require full disclosure, Colbert likened his 501(c)(4) to a “Campaign finance glory hole”: “You stick your money in the hole, the other person accepts your donation, and because it’s happening anonymously, no one feels dirty!” Colbert said in September, 2011 that he was looking for a billionaire donor, or in the language of Colbert, a “sugar daddy.”

    During the January 12, 2012 episode of The Colbert Report, Colbert announced his plans to run for “President of the United States of South Carolina.” Colbert’s lawyer, Trevor Potter, made it clear that it is illegal for Colbert to run for president while active in his Super PAC (though it would be perfectly legal for him to “volunteer” on its behalf). Colbert then signed over control of his Super PAC to Jon Stewart (President pro tempore), and announced that the organization would now be referred to as “The Definitely Not Coordinating With Stephen Colbert Super PAC”. Immediately after this legal block was removed, Colbert announced his decision to form an exploratory committee for his run for “President of the United States of South Carolina”. Super PACs are not allowed to coordinate directly with candidates or political parties since they are “independent”; however, a candidate may talk to his super PAC through the media and the super PAC can listen, just like everybody else. In a press release, the new PAC president, Jon Stewart, denied that he and Colbert would secretly coordinate their efforts: “Stephen and I have in no way have worked out a series of Morse-code blinks to convey information with each other on our respective shows.””

    What was the point of all that information copy/pasted from Wikipedia? TO point out that while the case SCOTS+During the January 12, 2012 episode of The Colbert Report, Colbert announced his plans to run for “President of the United States of South Carolina.” Colbert’s lawyer, Trevor Potter, made it clear that it is illegal for Colbert to run for president while active in his Super PAC (though it would be perfectly legal for him to “volunteer” on its behalf). Colbert then signed over control of his Super PAC to Jon Stewart (President pro tempore), and announced that the organization would now be referred to as “The Definitely Not Coordinating With Stephen Colbert Super PAC”. Immediately after this legal block was removed, Colbert announced his decision to form an exploratory committee for his run for “President of the United States of South Carolina”. Super PACs are not allowed to coordinate directly with candidates or political parties since they are “independent”; however, a candidate may talk to his super PAC through the media and the super PAC can listen, just like everybody else. In a press release, the new PAC president, Jon Stewart, denied that he and Colbert would secretly coordinate their efforts: “Stephen and I have in no way have worked out a series of Morse-code blinks to convey information with each other on our respective shows.”

    What’s the point of that giant post, painstakingly copy/pasted from Wikipedia? To point out that while this case in particular is about banning a film, that’s not all that the Citizens United ruling changed, and that it HAS allowed infinite campaign contributions, which isn’t healthy for a democracy, and defending it in its’ entirety shouldn’t be considered ethical.

    • Money is not speech. However, restricting the ability to spend money on speech IS restricting speech. A point that I believe was specifically included in the Citizen’s United decision. Your contention that equating the two is necessary for arguments against limiting election spending it simply false. Those in favor of limiting campaign spending are engaging in a straw man argument when they pretend their opponents equate the two terms.

      • On a side note, it’s also the case that Citizens United didn’t rely in any way shape or form on corporate personhood. That’s probably the mostly commonly mentioned piece of misinformation present in numerous plans to counteract it.

        • And I didn’t mention that at all.

          It is strange that corporations would be considered persons for political contributions, as corporations are made up of people who have individual limits (or not). And as a point of ethics, corporations SHOULD return profits as efficiently to shareholders as possible, and then leave it up to the shareholders to donate. But corporate personhood is well established, and while I might disagree with it, it isn’t germane to this conversation.

          • No, you did not. Hence, the side note, in a response to myself. I was sure someone, not necessarily you, would mention it otherwise. It ALWAYS comes up in discussions of the CU decision in my experience. I should have added a note explaining why I added that in I guess.

      • I think you’ve just at the same time said that money is speech when it serves your purposes and the supreme court says so, and that speech is not money when it’s used by opposing views. If money was not speech, it would not be protected as speech. That’s not a straw man, it’s logic.

        But Ok then, if “restricting the ability to spend money on speech IS restricting speech.” Then why have campaign contribution limits at all? Isn’t that restricting speech?

        • Yes, in fact, it is restricting speech. Even the court cases allowing it have recognized that, they just think it’s ok because of a compelling government interest.

          Money isn’t speech, but it can be spent on speech. Banning that particular use of money is restricting speech.

          • I think that’s why I like this place, I actually learn things. Just in the few clicks I’ve made, the articles I’ve read, and in reading other comments, I think I have a better understanding on the issue. And I’d love to be able to edit the heck out of my original comment, because I’m kind of embarrassed by it now. Perhaps it’s a function of a lack of rational explanation in News organizations, and an abundance of rhetoric, but that doesn’t remove the responsibility from myself to be informed before I make statements of fact.

            I’ve realized as I was writing some of this, that you’re right, speech is speech, this kind of money enables speech, and reducing the amount of money spent would reduce someone’s ability to speak, therefore, in this case, limiting money limits speech.

            What I haven’t gotten over, and perhaps someone can explain this to me better, is where the American Election system is literally for sale. So where’s the balance? Is that question we should be asking? Are we willing to put limits on speech to maintain equity in elections? Or would that maintain equity? Does the status quo work?

            • Why do we need equality in elections? Was it equal when Eric Cantor outspent his opponent something like $5 million to $200,000, and lost? He didn’t lose through campaign incompetence, but rather by alienating his constituents.

              Bad ideas sometimes win elections, and sometimes people with bad ideas have a lot of money. But the obverse of both is also true.

              We can restrict liberty by requiring voters to prove they are intellectually capable of making an informed decision, but the Supreme Court has rightly rejected that approach. We can restrict liberty by controlling spending on speech, but the Supreme Court has also rightly rejected that approach. What we are left with is freedom to vote both uninformed and/or deceived, and to allow candidates to either inform or deceive us with as much speech as they can buy. Either way, it’s up to each of us to make a decision. It isn’t as if we can’t get the other candidate’s position with the Internet and all.

              I think more freedom is better than less. Could there be negative consequences? Sure, there always is, no system is perfect. But for me, anything that restricts liberty must have a more compelling reason than trying to protect a “low information voter” from his own deliberate ignorance. You can’t tell me an engaged voter is affected by saturation ads, because in my experience, they simply aren’t. They just tune them out.

  3. We have to consider that politicians and journalists like Milbank know that going against the Citizens United ruling is to restrict free speech. That’s why they engage in all the disinformation. Look at who is doing it – largely Democrats with some token Republicans who are afraid of losing power and the sycophantic, hack media representatives of the Party. The media want it overturned so they can crony up to the government and maintain their own power. It’s sickening.

    And Elena Kagan’s confirmation to the Supreme Court is atrocious at best. It’s rare that Justices have been so anti-Constitutional as Kagan. Thank god she’s had to be recused from a majority of cases held so far.

    • PS – I think Obama wants to get another Elena Kagan on the SC too, hence the Democrats’ gentle nudging of Ginsburg to retire. Sotomayor, while having tinges of race and gender bias, seems to decide mostly on the side of the law – assuredly a huge disappointment to the Obama administration. Ginsburg and Sotomayor are not voting the way the Progressives want them to, so they need another stacked justice. Also atrocious. But, hardly a surprise.

      Just read this at Reason.com: http://reason.com/blog/2014/06/16/supreme-court-rules-9-0-for-susan-b-anth

      Looks like the SC has decided in favor of free speech.

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