Individuals and organizations have a constitutional right to unlimited spending on their own political speech

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Illustration by Thomas James

Thursday, June 26, 2014

Is independent political speech the linchpin of our democracy or its Achilles' heel?   For democracy to work, some say, citizens (and corporations, and unions, and media outlets, and other voluntary organizations) must be allowed to express their views on the issues, candidates, and elections of the day. This proposition, they say, is exactly why the First Amendment protects the freedom of speech and of the press. On this view, restrictions on independent political speech undermine and subvert our constitutional structure.  But others take a different view: If everyone can spend as much money as they like to express their political views, then some voices will be amplified, magnified and enhanced — while others will be all but drowned out. On this view, it is this inequality of influence that subverts our constitutional structure — and restrictions that level the playing field actually enhance rather than abridge the freedom of speech.


Presented in partnership with the National Constitution Center.    

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  • AbramsApproved90

    For

    Floyd Abrams

    1st Amendment Authority & Partner, Cahill Gordon & Reindel

  • Strossen90px

    For

    Nadine Strossen

    Fmr. President, ACLU & Professor, New York Law School

  • Neuborne90px

    Against

    Burt Neuborne

    Professor, NYU Law & Founding Legal Director, Brennan Center for Justice

  • Teachout90px

    Against

    Zephyr Teachout

    Assoc. Professor, Fordham Law & Fmr. Nat’l Dir., Sunlight Foundation


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      MODERATOR

      John Donvan

      Author & Correspondent for ABC News

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AbramsApproved90

For The Motion

Floyd Abrams

1st Amendment Authority & Partner, Cahill Gordon & Reindel

Floyd Abrams, one of the leading legal authorities on the First Amendment and U.S. constitutional law, is a partner and member of the Executive Committee at Cahill Gordon & Reindel LLP. He has argued frequently in the Supreme Court, and in 2010, prevailed in his argument before the Supreme Court on behalf of Senator Mitch McConnell as amicus curiae, defending the rights of corporations and unions to speak publicly about politics and elections in Citizens United v. Federal Election Commission. In one of his most famous cases, Abrams defended The New York Times in the Pentagon Papers case, in which the paper published secret reports on U.S. involvement in Vietnam. In November, 2011, Yale Law School announced the formation of The Floyd Abrams Institute for Freedom of Expression.

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For The Motion

Nadine Strossen

Fmr. President, ACLU & Professor, New York Law School

Nadine Strossen, professor of law at New York Law School, has written, lectured, and practiced extensively in the areas of constitutional law, civil liberties, and international human rights. From 1991 through 2008 she served as president of the American Civil Liberties Union, the first woman to head the nation’s largest and oldest civil liberties organization. She is currently a member of the ACLU’s National Advisory Council. Strossen’s writings have been published in many scholarly and general interest publications (more than 300 published works), and her book, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (1995), was named by The New York Times as a “Notable Book” of 1995. The National Law Journal twice named Strossen one of “The 100 Most Influential Lawyers in America.”

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Against The Motion

Burt Neuborne

Professor, NYU Law & Founding Legal Director, Brennan Center for Justice

Burt Neuborne is one of the nation’s foremost civil liberties lawyers, teachers, and scholars. He is the Inez Milholland Professor of Civil Liberties and the founding legal director of the Brennan Center for Justice at NYU School of Law. Neuborne has served as national legal director of the American Civil Liberties Union, special counsel to the National Organization for Women Legal Defense and Education Fund, and member of the New York City Human Rights Commission. He challenged the constitutionality of the Vietnam War, worked on the Pentagon Papers case, and anchored the ACLU’s legal program during the Reagan years. At the Brennan Center, he has concentrated on campaign finance reform and efforts to reform the democratic process. His book, “Madison’s Music:” On Reading the First Amendment, is scheduled for publication in the fall of 2014.

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Against The Motion

Zephyr Teachout

Assoc. Professor, Fordham Law & Fmr. Nat’l Dir., Sunlight Foundation

Zephyr Teachout is an associate law professor at Fordham Law School. She writes about political law, with a focus on corruption: her book Corruption in America (Harvard University Press) is coming out in fall 2014. She is also known for her innovative work as director of online organizing for Howard Dean's 2004 presidential campaign, where she led the first technical team developing social media tools for supporters, many of which were used in Obama's 2008 online campaign. As the first national director of the Sunlight Foundation, she led several crowd-sourced investigative journalism projects, including a national campaign to expose the political connections behind earmarks. She was also a fellow at the New America Foundation’s Markets, Enterprise, and Resiliency Initiative, where she worked on developing frameworks to understand the role of monopolistic companies in American political ecosystem.

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Declared Winner: Against The Motion

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Voting Breakdown:
 

64% voted the same way in BOTH pre- and post-debate votes (21% voted FOR twice, 41% voted AGAINST twice, 2% voted UNDECIDED twice). 36% changed their minds (13% voted FOR then changed to AGAINST, 0% voted FOR then changed to UNDECIDED, 7% voted AGAINST then changed to FOR, 1% voted AGAINST then changed to UNDECIDED, 3% voted UNDECIDED then changed to FOR, 13% voted UNDECIDED then changed to AGAINST) | Breakdown Graphic

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    47 comments

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    • Comment Link Bob Wednesday, 12 August 2015 16:29 posted by Bob

      They keep going off point. The idea is that an individual or group has the right to spend as much as they want on their OWN speech not donating to someone else.

    • Comment Link Avner Perl Sunday, 05 July 2015 18:37 posted by Avner Perl

      I am a Canadian with a suggestion.
      Obligate the media to disclose in the advertisement the name of the major contributor who paid for the advertisement.

    • Comment Link Chris Sunday, 29 March 2015 07:17 posted by Chris

      Missed in all these comments is the simple fact of the polling show that the majority aren't represented,special interest and their speech is simply louder and most certainly the most influential.This is a known fact and seemingly ignored.How to fix that without trampling on freedoms is another job.

    • Comment Link Ben Monday, 26 January 2015 18:46 posted by Ben

      How disappointing. I think the "for" side had an obviously better and more on-point argument. The "against" side was actually arguing for a change in the first amendment, rather than that the constitution currently says what they wish it did (it doesn't).

      It's a good thing it takes more than 65% of the mob to change the text of the constitution.

    • Comment Link John Thursday, 04 December 2014 17:11 posted by John

      Why hide where the money is coming from? Why do we even have the term 'dark money'? Every one should know who's giving money and how much money they are giving. Let the people then decide if the amount of money given and by whom may have some future sway in how a vote will be cast or a law will be past. If you're in a public office position one that is paid for by tax payers how is legal you can hid where and how money your were given? Speech has two parts to it: the active and the passive. The active part the giving of the money, money seems to have taken the place of actual speech. Then there is the receiving of we should all the right to know who is taking money from lobbyist, special interest groups, or private citizens, I wont use the world average because if it was just average citizens we were talking about I would not be here. when some one gives $1 no one cares, when some gives upwards of a million we all should care. Who is going to have more sway over that person the $1 or the million? when I write to my senators I don't always get a response but I guarantee the other guy always gets one.

    • Comment Link D Myerson Friday, 28 November 2014 12:07 posted by D Myerson

      While I would challenge the idea that the spending of any amount of money constitutes protected speech - there is a difference between expression and influence, I would also point out that I believe that the SCOTUS declares the line at limiting spending to that which corrupts the electoral process as well as that which creates the impression of corruption, thus reducing faith in the system. So the practical debate is at what point those lines are crossed. I would also point out that I have read that both major political parties recommend that elected members of Congress spend 4 hours every day making telephone calls to ask for the money in the two years before they run for re-election. Even if you don't think the funds corrupt elections, that kind of process has to have a corrosive impact on legislating.

    • Comment Link Russell Monday, 13 October 2014 20:11 posted by Russell

      The "For" team has the literal constitution interpretation on their side. But the "Opposed" team is on the right side here, because our democracy is certainly rigged and broken. $6 billion spent on campaigning says it all. And the combined entrenchment among Democrats, Republicans, and the media conglomerates means there is no opportunity for third party candidates to get a voice. Saying money corrupting politics isn't a problem is like saying the world is flat. But I worry about regulating political speech too. So we should pass the most extremely rigorous and thorough laws to mandate transparency of the money trail in the very least. And require elected officials to subject themselves to the same level of financial transparency and require a regular and defacto audit of ALL of their financial interests as a prerequisite for holding office. Make their entire financial portfolios easily available to public for review so conflicts of interests in their political dealings can be more easily exposed. Crack down on corruption so hard that only honest politicians will bother with that "profession". You want to represent the people? Ok, but you're going to be held to higher standard. The only problem is how do you break the cycle and get people elected that would pass such self-damning legislation? Refusing to vote for establishment Rep or Dem for the next 5 election cycles would help. Make corruption and gov't accountability the top issue. Because until that problem is rectified all of the other political discourse is a farce.

    • Comment Link Eric Terwilliger Wednesday, 01 October 2014 20:54 posted by Eric Terwilliger

      Both sides of this debate missed two fundamental points of the argument. First, any time Congress limits the power of "some" they automatically give that power to someone else. And second money will always be an issue in modern politics because media controls public speech in the world today and media is for sell. The question that needs to be asked is: "If congress limits the speech of 'the rich' by limiting how much they can spend on political speech, who are they by default giving that power of speech to?" The answer to this question is twofold: 1 They are giving that power to themselves. Congress is now deciding who gets to speak and how much they can say. And 2 they are giving the power of speech to the media. Without political ads, the media would have the power to determine which candidate gets airtime. Both of these outcomes are ironic to me because both of these parties fall in the "rich" category. Limiting political spending just determines which rich people get to influence politics in America.
      Also, the idea that money in politics always lead to corruption is a point that Burt and Zephyr don't even believe. Case in point; Barak Obama raised and spent more money than any presidential candidate in history. Are Burt and Zephyr saying that the president of the United States has been corrupted by his political supporters? Shame on you both for using misleading arguments that you don't believe and can't support. If you win a debate with deception you forfeit your win.

    • Comment Link kurt westphal Friday, 12 September 2014 13:14 posted by kurt westphal

      the proposition was poorly worded, organizations/institutions shouldn't have been included, as corps are not people, they are fictitious entities. corps don't vote. money and speech aren't equivalents. on the corporate side disclosure doesn't even exist. so more 'equal purchased speech' is offered to those who can afford it. the alleged arguments for by the SC and the debaters express points of view that are theoretical and non-pragmatic in today's real world politics. at a very minimum, if we're going to allow this kind of purchased speech, the donors, must be disclosed. Our founders are no doubt sleep restlessly in their graves..

    • Comment Link Frank Friday, 08 August 2014 20:32 posted by Frank

      The FOR side made so many straw-man arguments that they completely overshadowed their legitimate points. They keep free speech to money, and only money, which is ludicrous. They also have a fundamentalist interpretation of the US Constitution, which again, is ill-advised at best.

    • Comment Link Cody Friday, 08 August 2014 00:39 posted by Cody

      Should politicians be restricted on how much money they can spend when campaigning? The answer lies in our American beliefs that date back to 1787. Freedom is a part of who we are and needs to be protected. One works for what one has and nothing is free in our society, someone pays for everything. How can someone be expected to work for what they want and not use all resources in their grasp? We all have the right to stand for what we believe in but sometimes standing has a heavy bill with it.
      The first statement in the Bill of Rights includes “freedom of speech,” for most people their speech doesn’t cost much; although it does cost some for businesses. A business must advertise and get their name out. Otherwise that business will die. Companies like Apple or Nike spend millions a year to advertise and are greatly rewarded because of it. Organizations like FFA would not exist if they could not spend a little money on getting the word out that they are a club. Religious groups like the Catholic Church would not have anyone sitting in their pews if they couldn’t spread their beliefs. It costs money for all these people to let the world know who they are, and in this country they all have the right to spend that money. How is politics any different? One must put it all on the line to make ones goals become a reality. In the end the American People are going to vote for what they believe in.

    • Comment Link Jordyn Thursday, 07 August 2014 01:27 posted by Jordyn

      When we think of the United States, we think of Freedom. What comes entitled with the meaning of freedom? As a “free” society, we are not really free, or not as much as most of the general public would like. As a citizen of the United States, we should be free to spend what money we make, on whatever we like, within means that is. Maybe I should rephrase that, as long as you’re not infringing upon others rights, we should be free to spend the money we make on the things we like, including political agendas.

    • Comment Link naaaaaao Thursday, 07 August 2014 00:52 posted by naaaaaao

      I would believe that individuals and organizations have a constitutional right to unlimited spending on their own political speech.
      Teachout said, “If we don't figure out the right relationship between money and power, we are moving towards an oligarchy, not a democracy, and that is the most unconstitutional thing we could move towards,” but I think it would be a virtue because we have a concept of capitalism. We seek for the profit to make a living. If the US followed a concept of socialism, everyone had to have equalities for everything. However, under the socialism, it would be impossible for every to have an equality of money. There is always a difference between rich and poor. It doesn’t make sense to have a limitation of spending on own political speech because some people might offer a bribe to get more opportunities to have speech where it can’t be seen.
      So, I would like to say the constitution gives the equality of just opportunity to speech for everyone, not equality of quality or amount.

    • Comment Link gurousu Thursday, 07 August 2014 00:33 posted by gurousu

      The function of freedom of speech is to keep citizens from government. So, this right equally guarantees representing anything even if it is against governments. The basement of this right is government vs. citizens not between citizens. However, people having big power become the side on the government. Each person should be protected.
      This debate includes two ideas which are freedom from governments and equality between citizens. Normally, equality does not let freedom like communist, and freedom does not guarantee the equality. So, the freedom guarantees the equality of “opportunity.” This debate is also the freedom from government vs. the equality between speakers and between people who buck up them. America is the country that feels the freedom significant. So, we should guarantee the equality of opportunities. Freedom of speech also does it. Does unlimited spending rob the opportunities from the poor? No, it does not. They did counter speech or attack opposites, but they don’t rob the opportunities.

    • Comment Link Cassandra Wednesday, 06 August 2014 12:11 posted by Cassandra

      The minimum income in this country is zero. Anything in this country that costs money is not a right, because not everyone has access to it. It's a commodity. If you believe that limiting spending infringes on freedom of speech, then speech is a commodity, not a right. If it were a right, we would all have access to it regardless of what we can spend.

      If we define freedom of speech as the forms of speech we all have access to regardless of wealth, that freedom is not infringed by limiting spending.

    • Comment Link Benjamin Compton Tuesday, 05 August 2014 12:37 posted by Benjamin Compton

      I am sorry to say but Nadine's argument is wholly inconsistent. She in one breath claims that there is no correlation between campaign spending and the likelihood that a particular candidate would be elected, then states that we need unlimited spending to affect change in our government...anyone else seeing this obvious contradiction?

    • Comment Link BEB Monday, 04 August 2014 11:28 posted by BEB

      Overall I really enjoyed the debate, nothing was solved, many issues were discussed, and most of them I actually could agree with both sides of the argument. Nadine Strossen said two things I can relate to; “It’s hard to imagine a greater violation of our precious free speech right than for the government in other words, incumbent officials..to limit our right to criticize them and their policies”. To me this is the absolute basic foundation of our right to free speech. The other point she made is that if the government is allowed to regulate how much we spend on speech in essence it limits the speech itself. There needs to be some control on spending but this is a slippery slope, we need to be very careful on what regulations we allow and where is the stopping point between people and corporations.

    • Comment Link Chuck Marshall Sunday, 27 July 2014 21:14 posted by Chuck Marshall

      Yay! "Common sense" prevailed! First, I believe people who make decisions based solely principles are dangerous. Second, I think Strossen's response to the woman who brought up the idea that it's not permissible to shout "Fire!" in a crowded theater was very condescending. Anyone who alludes to that idea obviously assumes there is no actual fire. If you are ever talking with Strossen, and you paraphrase that famous part of Holmes' decision in Schenck v. United States be sure you specify that there is no real fire in the theater otherwise she might not understand you.

    • Comment Link Dale McCarty Saturday, 26 July 2014 00:19 posted by Dale McCarty

      Plain and Simple, Dollar bills can not speak. Citizens United was a travesty of justice.

    • Comment Link Ed Creskoff Wednesday, 16 July 2014 15:44 posted by Ed Creskoff

      Finally had the opportunity to see this. What a great debate!

      I admit that I am flummoxed by the result. It seemed to me that the "For"s had it from the start and never lost it. It concerns me that a majority agree with the "Against" side.

      Nevertheless, thank you IQ2, for another great debate.

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