Wednesday, April 23, 2008

Does The Bill Of Rights Really Guarantee The Right To Secretly Buy Elections?

The Democracy Campaign recently estimated that special interest groups spent $4.8 million to influence the state Supreme Court race. A spokesman for the top spender, Wisconsin Manufacturers and Commerce, insisted our estimate was inaccurate but wouldn’t say why and refused to offer up any numbers to prove it wrong. He repeated for the umpteenth time the company line that groups like WMC have a First Amendment right to keep the public in the dark about how much is spent to sway voters and where that money comes from.

In effect, those who are taking ownership of our courts and our state legislature and our governor are saying that they have a constitutional right not only to wield daggers in the political arena but also to hide under cloaks while they do it.

What they also are effectively saying – over and over and over again until even people who ought to know better accept it as a universal truth – is that we have to choose between judicial independence and free speech. Or choose between open, honest government and the right to speak.

Those are false choices.

No constitutional right is absolute or unconditional. Among other things, the First Amendment guarantees freedom of the press. But ask any of the countless journalists who have been jailed or the judges who put them behind bars if there are limits to that freedom.

Or take the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Put aside for a moment that some believe the “well regulated militia” clause means the Second Amendment bestows a collective right to bear arms, not an individual right. Most people, and most courts, believe it protects an individual’s right to possess weapons. But that doesn’t mean that individuals have an unconditional right to keep and bear any and all arms. For instance, no one in their right mind would say the Second Amendment establishes an individual’s right to possess nuclear arms.

Just as an individual’s possession of a weapon of mass destruction would pose an intolerable threat to other community members’ rights to life, liberty and security, the First Amendment right of free speech likewise can be exercised in a way that does violence to citizen rights and the common good.

We have reached that point in Wisconsin politics.

In the Supreme Court election, two lobbying groups and three very shadowy front groups did 90 percent of the television advertising. With five interest groups doing almost all of the talking, the candidates in the race largely became bystanders in their own election. They had the right to speak, but virtually no way to be heard. A lot of good the First Amendment did them.

Voters got even more of a raw deal. Elections are supposed to be dialogues between candidates and voters. This one was a special interest monologue. The First Amendment wasn’t worth the paper it’s written on to ordinary citizens in this election. On top of that, in the name of the First Amendment voters were denied essential information about who paid for the more than 12,000 TV ads that were aired in the Supreme Court race, or even how much they cost.

It’s time we start distinguishing between the exercise of free speech and the abuse of it.


Anonymous said...

One name: Plubius.

Anonymous political speech has been protected and cherished for hundreds of years. I hope that it continues to be cherished for hundreds more.

Anonymous said...

Anonymous said...
One name: Plubius.

One question: So you see no distinction between the Federalist Papers and the rubbish that WMC and the "Greater Wisconsin Committee" and "Coalition for America's Families" and the "Club for Growth" spewed in this year's Supreme Court race?

Apparently without knowing it, you make McCabe's point for him. He's saying people can't seem to tell the difference between legitimate and protected political speech that's essential to democracy and snake oil the plutocrats peddle to line their pockets. You helped prove him right.

Anonymous said...

What's most offensive is how everyone - including the Supreme Court - so easily falls into the trap of assuming money and speech are the same thing.

Anonymous said...

i agree the rich and powerful are peddling snake oil, but they arent doing it just to turn a fast buck. Look up the definition of plutocracy. Theyre doing it to control our government and our lives.

Mike McCabe said...

I don't generally reply to comments on my blogs, but it's funny that the comments on the virtues and vices of anonymous speech are all being made anonymously. Is irony one of the casualties of the Internet age?

To whoever compared today's phony front groups to the founding fathers' "Plubius" pseudonym, I say this: Intent is considered in judging actions in every facet of life. Judges and juries consider intent when deciding whether someone is convicted of 1st degree murder, or 2nd degree, or manslaughter, or acquitted of any charge because the act was in self-defense. When someone says something that is not true, sometimes we consider it a "little white lie" aimed at not hurting someone's feelings and sometimes it's judged to be a huge betrayal of trust. In basketball, referees call some fouls intentional or even flagrant while others are treated as just plain old fouls. When a pitcher hits a batter, sometimes baseball umpires toss the pitcher out of the game for head hunting and other times it's considered no great offense.

Such judgments are made every day in every aspect of life. Speech is no exception. It's not OK to shout "fire!" in a crowded theater. It's not OK to call in a bomb threat to a school. Other inflammatory speech is tolerated and sometimes even celebrated.

Why is it so difficult to apply common sense to the question of anonymous political speech? Our nation's founders were putting their lives at risk during the revolution and the fate of a nation hung in the balance. They had good reason to write under a pseudonym. In the 60s, the NAACP fought to keep their members anonymous because they were at risk of being lynched by the Klan. Do the fat cats who are trying to buy elections and own our government in Wisconsin face any such threat?

A speaker's desire for anonymity needs to be weighed against the public's right to know. That's where judgment and common sense come in. In the case of our nation's founders or the NAACP in the deep south at the height of the civil rights struggle, it is reasonable to conclude that the need for anonymity outweighed the public's need to know the identity of the speaker (or in the NAACP's case, the sponsor of the speech). The need of these sham "issue advocacy" groups is nowhere near as great, and the public's need to know who is trying to take over their government weighs heavy.

Anonymous said...

Anonymous said...
"What's most offensive is how everyone - including the Supreme Court - so easily falls into the trap of assuming money and speech are the same thing."

It is equally offensive and perhaps more so that everyone, including the Supreme Court, assumes that corporations are people and possess the same rights as individuals. Including free speech rights. That is not what the founders intended.

For anyone who hasn't seen "The Corporation," it's a terrific documentary that shows just how ridiculous the idea of treating corporations as people really is. You can get the film at