On Violating the First Amendment

Portrait caricatureA friend, Dave Nelson, who is a standup comedian and academic jokes that the thing about being an academic is that it gives one a kind of sixth sense like the kid in the M. Night Shyamalan film, except that instead of seeing dead people you see stupid ones. He’s right about that. Sometimes this “gift” seems more like a curse in that one can feel overwhelmed by the pervasiveness of sheer idiocy. When I saw the New York Times’ piece from April 2 “Supreme Court Strikes Down Overall Political Donation Gap” I wanted to crawl right back into bed and stay there for the rest of my life. Even the dissenting opinions were idiotic. Limits on the size of contributions to individual candidates are still intact. It’s just the overall caps that have been removed, so now while you can’t give more than $2,600 to a single candidate, you can give to as many candidates as you like. It seems the dissenters are worried, however, that the absence of an overall cap raises the possibility that the basic limits may be “circumvented.”

That sounds to me just a little bit too much like arguing over how many angels can dance on the head of a pin. “There is no right in our democracy more basic,” intoned Chief Justice Roberts, “than the right to participate in electing our political leaders.” Oh yeah? Well, if a financial contribution to a political campaign counts as “participating in electing our political leaders,” then a whole slew of Americans’ first amendments rights are being violated all the time in that many Americans don’t have enough money to pay for the basic necessities of life, let alone have any left over to contribute to political campaigns. The rules of the political game have been written in such a way that the “participation” of the poor is limited before the process even gets started. Sure, they can attend protests, write letters, etc., etc. Or can they? What if their penury forces them to work around the clock? What if they are effectively illiterate? Even if they could do these things, however, the extent to which they could affect the political process is limited by the rules of the process itself. They have less money, so they have less say.

Philosophers are fond of invoking the ceteris paribus clause. All other things being equal, they say, this or that would be the case. The point, however, of invoking the ceteris paribus clause is to expose that all other things are not in fact equal. Ceteris paribus, limits on campaign contributions would infringe on people’s First Amendment rights. So if we think such limits do not infringe on people’s First Amendment rights, the next step is to ask why we think this. The obvious answer is that all other things are not equal. That is, people do not all have the same amount of money. Even in a country such as Denmark that has effectively wiped out poverty and hence where everyone in principle is able to contribute money to political campaigns, some people are able to contribute much more money than other people and thus able to have a much greater influence on the political process. Danes, being the intelligent people they are, understand that such an inequity is antithetical to democracy so they legislate that political campaigns will be financed with precisely the same amount of money and that this money will come directly from the government rather than from individuals.

This is, in fact, how pretty much every country in the economically developed world finances political campaigns and presumably for the same reason. Everyone who is not irredeemably stupid understands that to tether the ability of an individual to participate in the political process to the amount of money he can spend on such “participation” is a clear violation of the basic principles of democracy. If writing a check is a form of political expression, then the economic situation of millions of Americans excludes them a priori from such expression, which is to say that their rights are unjustifiably curtailed in a way that the rights of the wealthy are not. (I say “unjustifiably” on the assumption that few people would openly defend the explicitly Calvinist view that the poor are poor through their own fault.)

So the issue here is not really one of defending the First Amendment. It’s “pay to play” in the U.S. You have no money, you have no, or almost no, political voice. Pretty much everyone who is not, again, irredeemably stupid understands that. The haggling is not about protecting people’s First Amendment rights. It’s a power struggle between what in the eyes of most of the world would be considered the wealthy and the super wealthy.

But then one should not underestimate the number of the irredeemably stupid. “The government may no more restrict how many candidates or causes a donor may support,” pontificated Roberts, “than it may tell a newspaper how many candidates it may endorse.” Anyone whose had an introductory course in critical reasoning, or informal logic, will immediately see that the analogy Roberts has drawn here is false. Roberts is using the terms “support” and “endorse” as if they are synonyms. They’re not synonyms though, at least not in Roberts’ analogy. The “support” a “donor” gives to a political candidate is financial, whereas the “endorse[ment]” a newspaper gives to a candidate is editorial. To suggest that such a distinction is unimportant is to beg the question. God help me we must be the only country on the face of the earth where someone can make it not only all the way through law school without understanding such errors in reasoning, but all the way to the Supreme Court.

But fallacious reasoning isn’t the worst of Roberts crimes. Many on the left have long suspected people on the right are more or less closeted fascists. Well, Roberts has come out of the closet. Yes, that’s right. Roberts explicitly compared the removal of overall limits to campaign contributions to Nazi parades. If the First Amendment protects the latter, he asserted, then it protects the former. The analogy here is just as bad as the earlier one given that a person doesn’t have to pay to march in a parade. It’s a little more revealing, however, to those who have eyes to see.

(This piece originally appeared in Counterpunch, 4-6 April 2014 )

3 responses

  1. Pingback: Report on 2016 Eastern APA Meeting | Piety on Kierkegaard

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