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Friday, April 04, 2014

Is a Vote For Campaign Finance Reform a Vote for Brendan Eich? (And Vice Versa)

Whatever I may feel about boycotts and similar actions in general, or the pressure for the resignation of Brendan Eich in particular, I must make clear that I do not think Eich was defenestrated. Jan Masaryk was defenestrated; Eich was subjected to highly disputable uses of market pressures. There's a difference, and as a sometime conservative I don't care for the degradation of the English language or for Marcusian rhetoric.

That said, I think today's Room for Debate argument in the New York Times, and especially the contributions by Leanne Pittsford and Leslie Gabel-Brett, both of whom support the events that led to Eich's deposition, is quite telling. It wasn't until reading those pieces that I fully appreciated the connection between this story and the widespread discussion in the same week of the Supreme Court's decision in McCutcheon and the general debate over campaign finance reform and the First Amendment. Google "McCutcheon" and "money is not speech," or run a Westlaw search for the same phrase, and you will find plenty of believers in this view. (Not everyone, and some supporters of campaign finance laws, including Larry Lessig, have called the slogan an unhelpful "gimmick." But it is a widely repeated slogan--sometimes in the Supreme Court itself.) Yet Pittsford writes, "[L]et’s be honest, writing a $1,000 check is a very specific, assertive action. It's very different than just having a belief. If you’re willing to put down your own money, it means you feel strongly about it." And Gabel-Brett makes quite clear her view that Eich's donation itself was expressive conduct. The two cases are obviously not identical. Still, it is startling to see in the same week, and sometimes roughly from the same side, outrage at the view that money is speech and the vehemently expressed view that Eich spoke by donating money.

Pittsford's contribution is also worth reading in light of the recent and ongoing arguments about the Hobby Lobby case and the question whether corporations can assert a statutory or constitutional burden on religious exercise. Here is a key paragraph of her piece: "The problem is that when you're a progressive company like Mozilla that champions progressive policies and open access, you tend to attract employees who feel the same way, and that creates an open progressive culture, which is one of Mozilla's strongest assets. You can't have a leader who doesn't reflect those views." Interesting use of the second person singular pronoun in light of last week's arguments! 

Posted by Paul Horwitz on April 4, 2014 at 11:47 PM in Paul Horwitz | Permalink


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with respect to "I have also been a bit surprised (at the conference on religious accommodations, for example), that the disconnect between the Mozilla events and the standard "Hobby Lobby can't exercise religion" line has not been confronted and engaged more.":

In my view, neither should practice religion nor have a position on the issue of same-sex marriage. However, the government should not prohibit them from having such positions.

Posted by: Michael Ejercito | Apr 6, 2014 11:35:42 AM

So yes, contributions are speech. And contrary to Tamara, I do think that a lot of people seriously believe money isn't speech at all. I always thought, though, that an underpinning of Buckley (which itself is inconsistent with money not being speech) was that the amount of a contribution isn't speech, or at least, doesn't say very much. That is, increasing the amount of a contribution doesn't add much expressive content to the symbolic act of contribution. Now, at some level this is obviously wrong; donating a million certainly conveys a very different message than donating a thousand. If you tell me a fairly wealthy person donated a thousand dollars to a candidate, I don't assume that he strongly supports the candidate. (I do assume strong support with thousand dollar donations to ballot initiative campaigns, but that's because there seem to be much fewer peripheral benefits of donating to those than to campaigns for elective office.) However, once you accept that Congress can ban donations that connote really strong support because they'd be corrupting or create an appearance of corruption, it seems to me that Congress has a fair amount of leeway to move the limits in ways that don't take much marginal expressive content off the table. For example, McCutcheon wanted to donate $1776.00 to ten candidates; under the old regime, he couldn't do that, but he could have donated a similarly symbolic number, $177.60, to ninety. Would that affect anyone's perceptions of his support for the candidates to whom he donated? Probably a little at the margins, but not much. This is a little circular, of course, but I think people would think he was showing as much support as he could within the constraints of the law and the constraints that he imposed on himself by choosing this symbolic number.

Posted by: Asher | Apr 5, 2014 11:34:13 AM

Tamara, may I agree in part and disagree in part. I agree with the second-last sentence. Saying things like "corporations aren't people" or "money [equals/does not equal] speech," or using terms like "commandeering the people" or "wall of separation between church and state," can be arresting, but arresting language, as Cardozo observed, is a decidedly double-edged sword. Again, my interest wasn't in saying "gotcha." Our particular field understandably involves a mix of the political and the legal, of popular and more "expert" commentators, and our job in such areas is to clarify or complicate these issues and point to interesting connections in the ways in which they are or aren't used across seemingly separate areas.

As to whether money ought not be "First Amendment protected speech," I don't agree and would think that someone like Pittsford really, if she has thought about the matter, would or should disagree too. How the interest analysis plays out is a separate question, but I would not favor a categorical statement that it is unprotected.

I would add that it's not just a question of more or less sophisticated or op-ed-related language usage. Consider the resurgence in popularity around these issues of "expressive" theories of law, which are certainly advanced by sophisticated thinkers but which also should relate strongly to how one feels about the constitutional status of political donations, and perhaps practices of corporations with religious missions. It seems to me that expressive theorists have tended to push their arguments roughly in one particular direction, but that there are broader implications for such an approach that could push in either direction. There is a gesture in that direction toward the end of this blog post: http://balkin.blogspot.com/2014/03/religious-accommodations-cost-more-than.html. So it's not just a "finding a good slogan for a 500 word piece" thing.

Although I reiterate that these are two separate cases and that there are ways to thread the needle here, I also want to reiterate that I think there *is* a genuine (albeit not necessarily unresolvable) tension here, and that candor requires us to acknowledge and explore it. I don't think it's just an artifact of sloppy use of slogans or keeping material short for an op-ed--although even if it were, the popular conversation about constitutionalism matters, and there is bleed-through between more and less supple or popular discussions and results in this area. Regardless of where or how we come out on the tension, it's certainly within our bailiwick to acknowledge it and see whether it changes our views at all, and/or calls for us to improve our thinking and language in discussing these issues.

Posted by: Paul Horwitz | Apr 5, 2014 11:11:30 AM

Note the relevance of the third prong of the campaign-finance reform debate: Disclosure. This will be another example used to argue against disclosure requirements, that they set people with unpopular views up for retaliation.

Posted by: Howard Wasserman | Apr 5, 2014 10:16:36 AM

Paul I think this is really just a case of the slogan reflecting a compression of the legal meaning. "Money isn't speech" in this context seems to mean money isn't (or ought not to be) First Amendment protected speech. Nuance doesn't translate well into slogans or 500 word op-eds. There is a limit to how much ground you can cover in an op-Ed.

Posted by: Tamara Piety | Apr 5, 2014 10:16:10 AM

Etseq, although obviously I thought the points in the post were worth making, I do think you make a couple of excellent and ultimately related points in response and I thank you for them. A couple of points in reply.

1) I agree that there are other ways to thread the needle in each case and across both of them. I suppose my post was inspired by the clarity of the statements in those Room for Debate pieces, which were so explicit about money being speech, which was in some contrast to how vehemently *some* have argued that money is not speech. I tend to think that both the campaign finance cases and something like Hobby Lobby should be decided at a balancing stage rather than a categorical stage, so I agree that it is possible to make consistent and reasonable arguments for campaign finance reform or against Hobby Lobby's claim that do not depend on blunt assertions that money is not speech or that it is absurd for corporations to invoke statutory or constitutional rights concerning burdens on religion. (Similarly but slightly off-topic, I think it is possible to believe that boycotts and similar actions are permissible actions for consumers but that the default position should disfavor them, and that a particular such action was a mistake in light of a balancing of interests.)

2) I hope I was not playing gotcha with the NYT, and I agree that this would not be the best use of the time of an academic blog (or a political blog, for that matter). For what it's worth, I was not insisted in saying "gotcha" or "hypocrite!" or something like that. It was the purity of the expression of the "money is speech" theme that fascinated me in light of the surrounding debates over the other cases. I don't think hypocrisy is the biggest sin in the world, or an uncommon one for any of us, or that an argument consisting simply of a cry of hypocrisy is an especially fruitful one. But I do think it is a useful academic job in cases like these to spot a similar concept given very different uses in two different debates and try to raise questions about what's going on and what it says about the concept or the debate.

As a last point, it seems to me that there are several relevant players in these kinds of constitutional debates: the popular side of the debate, which often does subsist rather heavily on slogans; the "lesser" academic contributions, often by those who only sometimes write about these issues, and in which poor or outdated or slogan-derived arguments may get more currency than they deserve; and better academic contributions by those who question or do not rely on those kinds of slogans. (All the more distressing to me when I see people in the third category who take an active role in the first category, introducing memes and slogans into and participating one-sidedly on one side of the popular debate, when their job should be to clarify and improve the popular debate and explore the problems of either or both sides.) If the goal of the post was just to shoot fish in a barrel, I would agree that an academic blogger shouldn't bother (although many obviously do). But I do think it is absolutely fine for an academic to acknowledge that there *is* a popular debate over some of the issues he's interested in, and that the line between the academic, popular, and judicial spheres in these debates can be permeable. What the academic should do in such cases is not to leap with both feet into the popular debate as an advocate, in the hope of framing the public issue strategically to move public opinion, but to acknowledge, analyze, and question the arguments and tropes used in the popular debate. ("Broccoli," "Gay Jim Crow," "money is not speech.") Hence my using the Room for Debate pieces. At least that's a first take at a response, but I haven't had my morning coffee yet.

Posted by: Paul Horwitz | Apr 5, 2014 9:02:46 AM

Paul - I have also been a bit surprised (at the conference on religious accommodations, for example), that the disconnect between the Mozilla events and the standard "Hobby Lobby can't exercise religion" line has not been confronted and engaged more.

Posted by: Rick Garnett | Apr 5, 2014 7:49:42 AM

Whether its expressive speech or not isn't really the problematic part of the analysis though - the failure of the court to acknowledge that corruption of the political process constitutes a compelling interest sufficient to pass strict scrutiny is where its analysis goes wrong.

Also, playing gotcha with a New York Times op-ed is something I would expect to see on Brietbart or Redstate rather than an academic blog.

Posted by: etseq | Apr 5, 2014 6:39:33 AM

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