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.

  • 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


    • Moderator Image

      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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Strossen90px

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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    28 comments

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    • 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.

    • Comment Link Thomas Sunday, 13 July 2014 09:04 posted by Thomas

      An earlier comment struck a chord with me by saying, "I don't think I have a constitutional right to be HEARD." With this I completely agree. Just because I have the money to speak my mind, and beliefs doesn't give me the right to force others to listen to my ideals. And that's what this amounts to, MONEY=FORCING US TO LISTEN TO YOU. I don't find this to be constitutional. No amount of money should be spent forcing us to listen. But during campaign season that is exactly what money in politics amounts to. TV ads are inescapable, the billboards and signs as well. Everywhere I go these donors are assaulting my ears and eyes with their ideals. It's forcing us to listen/view their "speech". This I call harassment.

      I do believe anyone wishing to spend their excess Capitol to be heard by congress should have every right to do so. But there should be limits on how much they can spend to force US THE PEOPLE to listen to their ideals.

      But then since I don't have spare money just lying around to play politics with, my voice doesn't count. My voice is drownd out by organizations with deep pockets. Does the constitution state that if any individual with enough money has the right to drownd out another, poorer, voice? That is my question to all of you.

    • Comment Link Michael B Friday, 11 July 2014 13:19 posted by Michael B

      I've been completely swayed by Floyd & Nadine, unlimited spending does come with unlimited speech.

      Money can influence, but not SPEECH. We the people have the right to Freedom of Speech. I do agree that congress went wrong by allowing for profit corporations to give money to political campaigns.


      Freedom of Speech is the freedom of expression. Unlimited Speech, unlimited expression, comes up with unlimited money.

      Money does not equate to speech.
      Period.
      Shout all you want.

    • Comment Link ya.mik Thursday, 10 July 2014 20:31 posted by ya.mik

      Something left out of the debate is that corporations are not democracies or even republics, they represent money and not people. A corporation may be composed of assets and the work of many people, but they do not speak for the people working for them. They are a plutocratic fictional entity being granted rights which should be the domain of actual humans.

      One of the debaters arguing for no restrictions on speech said “you have a right to speak your conscience”. Being that corporate speech represents capital and not a human, I think “conscience” is an appropriate test for free speech. Corporate actions score high on tests for psychopathy, and are often accused of having no conscience, morals, ethics, etc., which is another good reason that they shouldn’t be eligible to buy unlimited speech.

      If you agree with any of this, check out Move to Amend’s effort for a constitutional amendment to fix this flaw in our democracy.

    • Comment Link Fred Monday, 07 July 2014 19:33 posted by Fred

      I think they were arguing the wrong thing. In my opinion, we have a right to free SPEECH. I can say (almost) anything I want, and I can't be thrown in jail because of it. But I don't think I have a Constitutional Right to be HEARD. Other people are under no obligation to pay attention to me, no matter how much money or influence I have. I think THAT is the fake equivalence being thrown around this debate.

      I do think we have problem in this country with money and influence and power. I think it's not a SPEECH issue.

    • Comment Link Joseph D. Rudmin Monday, 07 July 2014 18:31 posted by Joseph D. Rudmin

      I find it strange that so many people assume that a law to ban something has the effect of preventing it, and that there are no side effects. I strongly expect that any spending limits will be used by those in power to excuse their punishment of dissent by the poor. The poor will still dissent, and those with money will still use that money to drown them out. Therefore freedom of speech will still be a natural right, despite the unconstitutional law, but the attacks on dissenters will undermine acceptance of the government, and contribute to its eventual collapse. The constitution protects not just the citizens from the government, but the government from itself.

    • Comment Link S. Tomson Saturday, 05 July 2014 19:56 posted by S. Tomson

      When i conact a my representative in nuanced letter or email and ask for a response, i get a form letter. A form letter, that addresses something close but not too close to what i ased. When my representative emails me showing me her recent accomplishments - my responses are bounced back. One way conversation only.
      Does she represent me? Nah.
      If lets say an oil interest sends a great amount of money her way to help finance her campaign what happens they need her time to voice a concern of theirs.
      Let's not fool ourselves.
      Is this representative democracy? Absolutely not.

    • Comment Link Lee Kasner Friday, 04 July 2014 13:29 posted by Lee Kasner

      The side for the motion kept changing the debate from free speech to the amplification of free speech. There is nothing stopping Warren Buffett from standing on his front lawn talking 24 hours a day 7 days a week. He has unlimited speech. Nobody is stopping that. Nancy Strossen states "...because unlimited spending is a pre-requisite for unlimited speech". I don't have unlimited spending and most likely neither do you. So by her statement, the Constitutional free speech rights of 99% of Americans are being suppressed every day since we can't spend without limit. This shows the obvious fallacy of her argument.

    • Comment Link Andrew Caudell Friday, 04 July 2014 04:07 posted by Andrew Caudell

      Nadine tried to make a point when arguing against the 'drowning out' claim, and I don't think she realized why she failed. She said TV ads could only be said to literally drown out the opposition if the person commissioning the ads bought up all the time slots.

      She's dead wrong... All they have to do is buy the primetime slots, which is when the most viewers are tuned in. They don't have to buy up the cheap late night timeslots because nobody's watching during those times.

    • Comment Link Daniel Hoffman Wednesday, 02 July 2014 10:33 posted by Daniel Hoffman

      One thing that always bothered me about the citizen's united decision and the subsequent definition of corporations is that corporations do not have any of the responsibilities or rights of people.
      If corporations were people then they would have the right to vote, they would be able to be imprisoned when they do something wrong, and a thousand other rights and ramifications.
      It is confusing to me that they are covered by the first amendment.

      I'd love to hear some thoughts on this.

    • Comment Link Andrew Caudell Wednesday, 02 July 2014 05:41 posted by Andrew Caudell

      I voted against the proposition because I think the case against spending equaling speech can be summed up with the following scenario: if I want to make a speech (by which I mean a friggin' speech, talking to a crowd), I can hire a speechwriter. If I read that speech, written by someone I paid, are you hearing my speech or the speechwriter's speech? I spent the money and I delivered the lines, but it isn't really my thoughts you're hearing.

      Conversely, if I were to pay a gentleman with a distinguished appearance and a charming English accent to deliver a speech that I wrote, is that my speech you're hearing/seeing? Or is it the actor's? If we were to look at it from a Constitutional viewpoint, whose right would be violated if this performance were to be censored? Mine, or the actor's? Are we considered a single entity because of our business arrangement?

      This is far from a clear-cut case. My opinion on the matter is this: the 1st amendment does not apply to a speech which was written for you by another person. It does not apply to another person's delivery of a speech written by you. I think the law ought to say that any political speeches must be written (or at least dictated onto the paper/teleprompter) by the person speaking it. You can spend unlimited amounts of money on paper and printer toner cartridges, on pens and airtime to stand up and say, with your own voice, what is on your mind.

    • Comment Link Miles Kelley Monday, 30 June 2014 23:26 posted by Miles Kelley

      Dick Mills:
      That's a good point, regarding the the fella at the opening of the debate attempting to frame it in a particular way. The against side did make a case in regards to how they interpret of the Constitution as-written, but the majority of their case was elsewhere.

      However, I believe the debate organizer's attempt to hem-in the debate in this particular way was wrong, and against the spirit of IQ^2. I was frankly very disturbed by his attempt, and disappointed Mr. Donvan didn't call him out on it. His attempted framing was blatantly exclusive of factors that mattered greatly in this debate. I hope he is not allowed to attempt to prime the audience again.

      As the against-side illustrated quite well, the strictest interpretation of the Constitution as-written does not encompass all of the issue. The Constitution's intention, they argued, is of massive importance; the language, even in it's current state, is meant serve that intention. If significant corruption is allowed in it's current wording, or it's current interpretation, then it's purpose is, in part, not served.

      I believe this factor is what swayed most people, and it is was the most compelling point, to me.

    • Comment Link Dick Mills Sunday, 29 June 2014 12:38 posted by Dick Mills

      I agreed with moderator Donvan's opinion that this was one of I2Q's best debates, but I am baffled by the voting result.

      In the pre-debate intro, the audience was reminded that the subject was constitutionality, not politics, not policy. The pro side made compelling first amendment arguments. The anti side repeated but one argument; that unlimited spending was bad policy and that the people wanted Congress to pass laws against it.

      Yet the pro side was skunked in the voting; not one single percent. I am stunned. WTF happened that night?

    • Comment Link Chase Wilson Saturday, 28 June 2014 14:07 posted by Chase Wilson

      I changed my vote to be for the motion because the question is not "What do I think the constitution should allow" but is "What does the constitution allow?".

      The constitution was designed to be a broken document that people could argue about and still feel that it supports their viewpoint.

      If voters are dumb enough to believe the campaign promises and commercials of politicians then they deserve to live with the consequences of their votes.

      People can talk all they want, its the votes of the people that determine who gets into office.

    • Comment Link dsimon Saturday, 28 June 2014 13:29 posted by dsimon

      I think Strossen and Abrahms miss two points. First, the resolution is not about creating a level playing field for speech; it's about whether there can be a cap on spending. I think that cap can be quite high where it doesn't interfere with people's ability to get their message out. Do they really think someone's freedom of speech is truly affected if the cap on political spending were, say, $3 million?

      Second, Strossen brings up the point that there have been no documented instances of corruption. But it's not the quid pro quo specifics that are at issue; it's a more systemic problem where the preferences of the elected officials mirror more those who pay for their elections than those who vote for them.

      And even that is not the key point. The important thing is that when people think results are bought, many of them will remove themselves from the political process. If there is no trust in those who we elect, then it makes no sense to bother participating regardless of whether results are really bought or not. Trust in government is a prerequisite to a functioning participatory democracy. It would have been useful to hear from the defenders of the proposition whether that trust is a sufficient interest to warrant some kind of restriction on political expenditures.

    • Comment Link plschwartz Saturday, 28 June 2014 11:26 posted by plschwartz

      Back in 1901 Bertrand Russell upset mathematical logicians with a Paradox A set is not a member of its own set. That is a box of chocolates is not the same thing as a chocolate. It is at best pieces of cardboard.
      I
      But the Supremes in their wisdom have ignored this. They maintained that an organization (a mathematical set) is identical enough to the members of the set as to have identical rights. Clearly here legal reasoning has left logical reasoning.

    • Comment Link Paul Kinzelman Saturday, 28 June 2014 10:33 posted by Paul Kinzelman

      While I would like to be in favor of no rules on contributions (the default should be the libertarian position), the problem is that it doesn't work. It's like trying to do physics with mass-less pulleys and frictionless planes. Unlimited contributions should be termed "legalized bribery" because that's what it is.

      Those of you in favor of unlimited spending, do you want to remain pure in theory, but have the country regress to the Middle Ages where there were nobility that owned everything and serfs who owned nothing? How are you going to prevent that deterioration of our system without some kind of laws, because that's where we're headed under both parties?

      What we need is a Constitutional Amendment (end corporate personhood, end money as protected free speech), and then we can have a discussion about what limitations make sense.

    • Comment Link sarahannadams Saturday, 28 June 2014 02:38 posted by sarahannadams

      As far as presentation is concerned, Zephyr Teachout absolutely killed it!

      She spoke slowly and deliberately, had good cadence and momentum, and came in under time - in both the opening and closing statements - while still fully fleshing out her arguments. A great example of a superbly mindful and organized debater. I'm happy to have seen this debate and will use this as a jumping off point to learn about Teachout. Thank you, IQ2

    • Comment Link Brian Vorderstrasse Thursday, 26 June 2014 18:42 posted by Brian Vorderstrasse

      We can have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can’t have both,” warned U.S. Supreme Court Justice Louis D. Brandeis (1856-1941). Indecision prevailed in the period between the Great Depression and the Reagan administration, then “great wealth” began to edge ahead of “democracy.”

      Most recently, the Supreme Court in Citizens United v. FEC and McCutcheon v. FEC have accelerated that trend as electoral contributions soared.

    • Comment Link Frank Kirkwood Thursday, 26 June 2014 14:53 posted by Frank Kirkwood

      My member of Congress represents me and my neighbors. People who live elsewhere have their your own representative. What right does someone from outside my district have to attempt to affect the selection of my representative? When an outsider can threaten to grant or withhold campaign money to my representative, that puts my representative in a position where he may have to represent the outsider's interests, not mine or my neighbors. Isn't this a perversion of the idea of representative government?

      Who would argue that outsiders should be allowed, not just to "speak" (that is, spend money) in my district, but to vote in my district, too?

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