Campaign Finance, Corporate Free Speech, and Television

I currently live in Pittsburgh, which was the location for a recent NPR report on campaign ads financed by corporate money. Indeed, when watching television these days, sometimes literally the only commercials are either for the networks own shows or for/against a political candidate. This has caused me to go back and reexamine my thoughts about the Citizens United decision, and to think about the relationship between campaign finance, corporate free speech rights, and television. These are my thoughts, and I'd be interested to hear yours.

Should corporations have any free speech rights?

I would have a lot of trouble saying that corporations have no free speech rights at all. If Corporation X wanted to spend its money publishing and distributing a book every two years right before election day that evaluated every member of Congress, I would be hard-pressed to find such activity unprotected. The idea of banning books or pamphlets of any sort bothers me a great deal (as would banning any modern electronic versions of such things). However, is this just instinctive revulsion to the idea of "banning books"? Could I make a constitutional argument that banning corporate books is not protected speech?

Constitutional Fictions

Updated 4/10/12


"If God did not exist," said Voltaire, "it would be necessary to invent him." I think substantive due process works in much the same way. Current constitutional law in the area of individual rights is based on a few large fictions, including the doctrine of Incorporation and the doctrine of Substantive Due Process. These fictions exist because if they didn't, they would have to be invented.

A Little Background
The Bill of Rights, by its terms, only constrains the Federal government. The First Amendment starts off, for example, "Congress shall make no law...." In 1791, it was assumed that the greatest threat to individual liberty would be the Federal government; states were close to the people and could therefore be counted on to protect individual liberties.

By the time of the Civil War, we realized that this was not necessarily the case, and one of the many provisions included in the Fourteenth Amendment (ratified during Reconstruction) was a clause that appears—from text and history—to be designed to change the presumption in our Constitution that states could be counted on to protect liberty: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Under this clause, the Privileges or Immunities Clause, states would be prevented from violating the rights of their citizens.

"Rights Consequentialism" and McDonald

The title of this post is something of a contradiction in terms. In moral philosophy, "rights" tend to be associated with deontologists, who regard morality as a series of duties that exist independent of their consequences. The arch-enemy of deontology is consequentialism, the belief that the relevant target of moral evaluation is the consequences to be achieved, rather than means used to achieve them.

I tend to fall into the consequentialist camp, and I feel that my legal and political philosophies must track my moral ones for my theories to be internally consistent. Yet, I am something of a libertarian at heart, and I put a great deal of emphasis in my personal legal philosophy on rights and liberties. This can be reconciled through a form of "rule consequentialism"--the theory that the relevant target of moral evaluation is the consequences of the rules by which we guide our actions. As I argued in my senior thesis (inspired by my advisor), the best defensible form of rule consequentialism (which I dub "sophisticated consequentialism") is one in which the appropriate level of generality for the rules is the one at which human cognition is too slow or imprecise to evaluate the effect of increased rule complexity.

More on Guns

I want to elaborate further on an idea that I raised in my previous post. The trouble that rights-minded people like me run into when we argue against certain rights is that we have to explain why we are absolute in the protection of certain rights, willing to compromise on some, and against the protection of others.

"A well regulated Militia, being necessary to the security of a free State...." Read in the expansive way I interpret rights, I must read the prefatory clause of the Second Amendment broadly. Accordingly, I read the world "security" broadly. Security means security against the tyranny of the federal government, and, after the 14th Amendment, against the tyranny of state governments. It also means local policing, as this was another function of the 18th century militia. It means defense of one's home and one's neighbor's home. As one of my law school professors explained, there is a pattern in the first four Bill of Rights. The First Amendment starts with religion—our innermost thoughts—and moves outward to personal speech, press, and assembly. The Second Amendment reflects a desire for protection of our persons. Moving outward again, the Third Amendment is a protection of our homes, and the Fourth is a protection of our effects.

A Theoretical Constitution in a Practical World

"In theory, there is no difference between theory and practice. But in Practice, there is." - J.L.A. van de Snepscheut.

In theory, today's opinion in McDonald v. Chicago (PDF) was absolutely correct. As I have argued elsewhere, the prefatory clause of the Second Amendment, "A well regulated Militia, being necessary to the security of a free State," does not provide the outer obvious boundaries for the Second Amendment's reach. Briefly, what primarily concerned the Framers in writing the Second Amendment was protection from a tyrannical government that sought to impose law by force rather than by functioning self-government. But "security" is not so simple a concept: The people of a state have the right to self-preservation as against all enemies—foreign and domestic, governmental and non-governmental. In an era of less-than-modern police forces, communities relied on their individual right to keep and bear arms for this security.

A Living Constitution

From Justice Stephen Breyer's Active Liberty (emphasis added):


"[The Framers] wrote a Constitution that begins with the words 'We the People.' The words are not 'we the people of 1787.' Rather their words, legal scholar Alexander Meiklejohn tells us, mean that 'it is agreed, and with every passing moment it is re-agreed, that the people of the United States shall be self-governed."

The Agony of Ross Douthat

I had high hopes for Ross Douthat. After William Safire left the NYT op-ed page, we suffered through having Bill Kristol as the conservative voice on the Times. Now, we have Ross Douthat, who I thought could bring a young, intelligent conservative voice to the paper.

Unfortunately, Douthat seems to be more interested in delivering blanket generalizations that are entirely divorced from reality. This week's column, "The Agony of the Liberals," exemplifies that. Douthat argues that liberals are disillusioned with Barack Obama, and this is because certain vices and unrealistic beliefs make liberalism a dying theory.

Supreme Values

Last semester, I took a course entitled "The Art of Appellate Decisionmaking," taught by Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit. Judge Edwards took great pains to describe to us what the role of the appellate judge truly was. In the Judge's opinion, 75 percent of the cases he hears are "easy" cases; the outcome is clearly dictated by law or precedent. Another 20 percent, he said, are "hard" cases; the law is unclear or ambiguous, precedent is not directly on point, and there are considerations that point towards different outcomes, but ultimately one outcome is much more favored by existing state of the law. (And note that appellate judges are bound by the law of their Circuit; a Circuit Court of Appeals must rehear a case en banc, with every judge on the court hearing the case, in order to reverse its precedent.) The last five percent are the "very hard" cases; in such cases, the various interpretive factors judges use are unavailing or in equipoise. In such cases, judges hit the Hartian line where "law runs out," and they must rely on other principles to guide them to a just decision.

The sun also rises, and the sun goes down, and hastens to the place where it arose...

Right now, the top three stories on the New York Times homepage are Israel and Gaza, anti-abortion laws coming out of state legislatures, and the ever-increasingly more depressing Deepwater Horizon oil spill.

And I think, Is it 2010, or 1980? Or 1970? Or 1960?

David Brooks Sees Complacency Where He Should See Corruption

In his column "Drilling for Certainty," David Brooks writes a very traditionally Brooks column: He identifies a real and interesting problem, completely misses its important causes, and fails to provide any sort of solution.

I would be the first to agree with all his premises in the column: Human beings are indeed very bad at risk assessment, risk assessment does get more difficult as the world becomes more complicated, and poor risk assessment can lead to disasters on the scale of the Deepwater Horizon oil spill. However, if the ever-increasing complexity of the world is a problem, we have to either find a solution or forsake technology.

Health Care Reform? Or Health Insurance Reform?

I had an interesting conversation last night that was quite possibly the best (and quite possibly the only) good argument I've heard against the ACA (the artist previously known as #hcr). The argument was essentially that the law achieves a laudable goal—insuring over 30 million new Americans—but without reforming all of the problems with actual health care. As a result, we'll simply have 16 million people buying into an already expensive and inefficient Medicaid system and another 16 million or so using government subsidies to buy health insurance that is grossly inflated in price. Moreover, there is already a shortage of primary care physicians in this country, so people will not get more preventative care; newly insured people will more likely go to specialists who will simply order needless and expensive tests. Costs will continue to rise, and not much benefit will be gained. Result: While more people will be insured, the ACA has the effect of expanding an already broken system.

A Primer on Congressional Powers

Although I have criticized the media for jumping on the "Health Care Reform Might Be Unconstitutional" bandwagon, I am going to jump on it myself. To give the reader an understanding of the issues involved in the question, here's a brief primer on Tenth Amendment jurisprudence and Commerce Clause jurisprudence.

I am Phineas Gage

I have never doubted that Hume was right about the human mind. Reason is—and can only be—the slave of the passions. Perhaps the reason that I have never doubted Hume is that I have never found a better way of explaining myself.

Students of psychology will be familiar with Phineas Gage, the railroad construction foreman whose personality was forever altered when a tamping iron was blown through his head, destroying part of his frontal lobe. The damage to his brain caused the once even-tempered railroad foreman to become an impatient, reckless, unbalanced figure.

Factoring Out the Recession

Just as an additional note, the economy itself is not to blame for a $1.3 trillion deficit in 2011. According to this graphic in the New York Times, based on CBO budget projections, the recession is responsible for $480 billion of the loss in government revenue. Likewise, this chart pegs the recession's responsibility at about $400 billion or so.

Of course, I admit that the situation is very complex. One could potentially argue that if George W. Bush hadn't lowered taxes during the last decade, the recession might have been worse—although I would certainly find this argument a tough sell. But it still shows that even if the economy suddenly started chugging along with steady growth, we'd still be at best $800 billion in the hole.

Now, repeal the Bush tax cuts, and that helps a little more, bringing us up another $300 billion or so. Save another $200 billion by getting us out of Iraq and Afghanistan. If those two things happen, we're still a good $300 $600 billion in the red.

So, in a rosy world with strong economic growth, Clinton-era taxes, and no wars, we still have some pretty tough choices to make. Now, what do we do with the real world?

Updates: As I learned in this NYTimes Editorial, apparently the proposed 2011 accounts for letting the Bush-era tax cuts expire at the end of 2010.

The 2011 Budget

For numbers geeks like me, today's interactive diagram in the New York Times of President Obama's proposed 2011 budget is just about the equivalent of heaven. Here are, in rough but much more accurate numbers, a breakdown of 10 of the largest parts of the $3.69 trillion federal budget, along with a remainder category:

• Defense spending: $740 billion
• Social Security: $740 billion
• Medicare: $580 billion
• Income Security: $430 billion, of which about 80% is various "welfare" programs and 20% consists of various working- and middle-class tax credits
• Medicaid: $260 billion
• Interest (debt service): $250 billion
• Veteran benefits: $130 billion
• Federal employee retirement and disability: $125 billion (split roughly 60/40 between civilian and military)
• Highway funding: $45 billion
• Student financial assistance: $40 billion
• Everything else: $350 billion

Here's an exercise for all of you Republicans out there. The projected deficit for 2011 is $1.3 trillion. Balance the budget without raising taxes or cutting anything from defense spending, Social Security, Medicare, or debt service. Give it a try, and let me know your solution.

So, What's the Solution?

So, I've been harping lately on the federal budget, our enormous budget deficit, and what to do about it. As I've pointed out, the breakdown of the federal budget (projected for 2010) goes something like this:

• Entitlements for Senior Citizens: $1.15 trillion ($700B for Social Security, $450B for Medicare)
• Income Security Programs: $770 billion ($290B for Medicaid, $480B for other programs)
• Veteran Benefits: $60 billion
• Debt Service (i.e. interest payments): $140 billion
• Defense Spending: $710 billion
• Everything Else: $760 billion

Our projected deficit for this year is $1.26 trillion. Cutting this deficit will not be easy, and there are no simple sound-bite solutions. However, since I complain about this issue a lot, I feel obliged to present my ideas for solutions, because if I simply whined without providing ideas, that would make me, well, your average Republican Congressperson.

After the jump are the ideas. These are necessarily long-term ideas. Even the easiest of them would take a decade to implement, but the journey of a thousand miles begins with a single step. A decade from now, I will still only be 35, and, with any luck, most of the current Congress will no longer be screwing up our country.

The Rant: I've Hit My Breaking Point

These days, I'm pretty much just incensed about the Massachusetts Senate race and how Scott Brown is looking more and more likely to win. I am angry not just because Martha Coakley is such a weak candidate, but because I simply do not understand what is going on in this country.

The storyline in the national media is that Republicans and Tea Partiers from across the country are coming out of the woodwork in rebellion of the leftist Democratic agenda and in rejection of Obama. This does not make any sense to me, because (1) the Democratic agenda is not even left-of-center, let alone socialist, and (2) for every person who disapproves of Obama from the right, there are probably two more who disapprove of him from the left; I sincerely believe that much of this country believes Obama has not done enough to implement his campaign promises.

A Summary of the Health Care Bill

Since it's difficult to figure out what exactly Congress has been debating for the last year, here's a brief summary I've compiled about the House and Senate versions of the health care bill. The numbers here are very rough and rounded (and probably just wrong in some cases), but they are more intended as heuristics for what the bills hope to accomplish. Much is compiled from wikipedia, and this Washington Post article.

Insurance Mandate
House bill: 2.5% tax increase for people who do not have health insurance

Senate bill: 2% tax (or $750, whichever is greater)

Both bills have a schedule of subsidies to offset the costs for people making up to 400% of the poverty line, or about $90,000 for a family of four.

Employer Mandate
House: Small business with payrolls less than $500,000 are exempt, and businesses with payrolls less than $750,000 have reduced contribution requirements.

Senate: Small businesses with fewer than 50 employees are exempt. For other businesses, there is a mandate to provide coverage or (in most cases) a pay a $750 per employee fine.

Medicaid Expansion
Both bills expand Medicaid by about 15 million people, or about 30% of the existing Medicaid program (this is the major cost-driver of the bills).

Revenue Generation
House: A "surtax" of 5.4% on individual tax liability on about the richest 0.5% of people and families (this probably ends up being between a 1% and 2% tax increase).

Senate: A 1% tax increase on the richest 1% of people and families, combined with selected cuts in Medicare.

Insurance Company Regulation:
Regulations are myriad and complex, including prohibitions on refusing coverage, prohibitions on dropping coverage, minimum standards, etc.

Who's Socialist Now?

 I wanted to quickly present a few numbers about the George W. Bush administration. (These numbers are rough and rounded, but they work well enough for my purposes.) Under Dubya, adjusted for inflation:

• The size of the federal budget increased by 33%, the largest increase since L.B.J.;
• Defense spending increased 67%, the largest increase since World War II;
• Education spending increased 36%, the largest increase since Johnson;
• Spending on income security programs increased 36%, the largest increase since the Ford administration;
• Spending on general government operations increased 25%, the largest increase since Nixon; and
• The size of the federal budget increased 33%, the largest increase since Johnson.

So, basically, Bush II was the biggest spending president since Lyndon Johnson, who had a couple feathers in his cap—like Medicare and the original Elementary and Secondary Education Act—as well as a very large black eye (Vietnam).

Now, people might say that this doesn't prove anything, because the Tea Partiers have repudiated George W. Bush as a drunken fratboy on a spending spree. There's only one problem in this argument: The Republican Congress that rubber-stamped W.'s agenda.

If you look again at those numbers, but look only at the first six years of Bush's presidency—when Republicans controlled Congress—all but one of those comments remain true. For the overall size of the federal budget, the comparison no longer remains true, because Bush is narrowly edged out by—oh, Irony!—Ronald Reagan.

So, if you want to point fingers at who were the people to expand the size of the federal government by its greatest increases since the Great Society, look no further than John Boehner, Mitch McConnell, and Bush's other lapdogs in Congress.

Is the Federal Government Really Too Big?

The New York Times published a letter to the editor by a fiscal conservative who claimed not to be a political activist but was drawn to the Tea Party movement:

We are...displeased with our government of late and are concerned about our nation’s future. Our Depression-era parents taught us to live within our means. And to keep our house in order. This is a lesson lost in Washington.

A question I have been thinking about for some time now is whether such people are correct. Is Washington spending too much and taking in too little?

The obvious answer is, "Of course." The estimated federal budget for the coming year involves receipts of $2.3 trillion and outlays of $3.6 trillion. The federal government would need to take in over 50% more in taxes than it currently is collecting to balance the budget. This is not an ideal state of affairs, but it's the one we have, because this country has neither the political will nor, likely, the economic capacity to hand over one-quarter of our GDP to the federal government.

Ignoring that elephant in the room for the moment, is a $3.6 trillion federal government too big? Let's look at where that money is going.

Will the Real Conservatives Please Stand Up?

In his column a few weeks ago, Paul Krugman lists what he sees as the three categories of people who are opposed to health care reform: (1) the "crazy right," i.e. "the tea party and death panel people," (2) the "fiscal scolds" whose greatest concern is the deficit and national debt, and (3) the progressive left, whose dreams of a single-payer system, or at least a public option, have been killed. His response to each of the three groups is effectively (1) it isn't worth responding to lunatics, (2) the bill if anything will reduce the deficit, and (3) yes the progressive left didn't achieve all its goals, but it got something, and that's at least a step in the right direction.

But Professor Krugman is leaving out an important group—an group that has real objections to health care reform that deserve to be taken seriously and whose views merit a serious response. The people to whom I refer are the true libertarians who view all government programs with suspicion, and who believe that we should return to a pre-1937 state of affairs.