FAN 13.1 (First Amendment News) — Justice Stevens’ Testimony to Senate Rules Committee re Proposed Campaign Finance Constitutional Amendment

You may also like...

5 Responses

  1. Brett Bellmore says:

    “Fourth, while money is used to finance speech, money is not speech. ”

    Yeah, but try publishing a newspaper if you can’t buy paper and ink. What a tool Stevens is. He wants to give the government the power to censor political speech, and pretend he isn’t.

  2. mls says:

    By the logic of Stevens’s game-playing analogy, Congress could forbid election related speech by anyone other than an authorized “player” in the election. Indeed, it sounds like he would favor such a scheme.

  3. Joe says:

    Stevens notes that money “should not receive the same constitutional protection as speech itself” — so maybe before we call him a “tool,” the whole nature of the statement should be recognized. His argument is that it is not directly speech, so it should not get “the same” protection. This doesn’t mean he is ignorant that money is needed in various ways for speech to occur etc. He doesn’t “deny” that he wants to regulate speech. Speech is “regulated” (“censored”) in various ways. The USSC, as Stevens noted, upheld a limit on foreign contributions. Brett et. al. might think this is rank censorship, but that is what it did — after Citizens United.

    The second comment also goes off the rails trying to push Stevens’ logic (this from someone who thinks he is wrong to some extent here) farther than it really goes. The use of “election related speech” provides the specter — which is a tad absurd — that Stevens thinks the government can block some foreigner writing an op-ed about an election. His concern here is thinks like money though it’s quite well accepted that citizenship can also be a limit on voting or running for office. But, “speech” itself is still allowed there. Non-citizens are “authorized players” to some extent.


    When the Supreme Court (erroneously) declared that flag burning was protected speech and President George H.W. Bush urged a Constitutional amendment to change that error, the Left got into a collective hissy-fit about “the first time a Constitutional amendment would take away freedom granted in the Bill of Rights!” But being able to influence political decision-making in a real world–in a world in which politics costs money and getting your message out costs money (I live in New Jersey–try putting out your political view in the New York and Philadelphia markets if you want to see what money can buy)–this, a core value of the First Amendment, is precisely what the Left (with Justice Stevens a willing collaborator) is ready to eviscerate and disembowel.

  5. Mike Stern says:

    Joe- this is what Stevens said: “Elections are contests between rival candidates for public office. Like rules that govern athletic contests or adversary litigation, those rules should create a level playing field. The interest in creating a level playing field justifies regulation of campaign speech that does not apply to speech about general issues that is not designed to affect the outcome of elections. The rules should give rival candidates – irrespective of their party and incumbency status – an equal opportunity to persuade citizens to vote for them. Just as procedures in contested litigation regulate speech in order to give adversary parties a fair and equal opportunity to persuade the decision-maker to rule in their favor, rules regulating political campaigns should have the same objective. In elections, the decision-makers are voters, not judges or jurors, but that does not change the imperative for equality of opportunity.”

    That sure sounds to me like he thinks elections can be regulated the same way as a court proceeding, with strict limits on who can address the “jury” (voters), when they can address them and what they are allowed to say. No doubt Stevens would not take this analogy so far as to suggest that individual citizens need to get permission before they speak to their neighbors about an election, but it is not clear that he has any principled reason for drawing such a distinction. If Congress could establish an evidentiary record that allowing individual citizens to speak about an election risks making it “unequal” (say because the rich and famous have an unfair advantage in communicating their views), Stevens’s amendment would arguably allow it to do so.

    His testimony also betrays the insubstantiality of the “money/speech” distinction. The analogy to litigation illustrates the distinction is meaningless (the rules of a courtroom are focused on speech, not money). Moreover, our experience as lawyers tells us that it is relatively easy to interpret all human activity as involving the expenditure of money in some way (think of the Interstate Commerce Clause). If I send an email, I am spending a tiny bit of money. If I knock on doors, I am wearing out shoe leather that will have to be replaced. My time itself can be viewed as an in-kind contribution (time is money).

    The language of the proposed amendment plus Stevens’s justification for it would justify virtually any limitation on election-related speech, including those ones clearly designed to protect incumbents.