Pornography & Campaign Finance Reform
By Robert Peters
September 15, 2014
I don’t regard myself as an expert on the First Amendment’s freedom of speech/press clause for the simple reason that my focus has been too narrow. But having spent more than two decades fighting obscenity and indecency through law, I did learn a few things, including the following:
While the Supreme Court has held that the First Amendment protects speech on matters of public concern, the Court has never held that the First Amendment protects obscene speech. In 1957, however, the Supreme Court embarked upon an effort to redefine “obscene” and in the process significantly limited the reach of obscenity laws. This revision process culminated in 1966, when the Court adopted a definition of “obscene” that made obscenity laws virtually unenforceable. In 1973, the Court corrected this error, adopting a new three-part obscenity test that made it possible to again enforce obscenity laws, but only against “‘hard core’ pornography.”
As the law now stands, therefore, while obscenity laws can be enforced against hardcore pornography, much pornography is now protected by the First Amendment. Furthermore, the Supreme Court has held that until it is proved in a court that sexually explicit material is “obscene,” there is a presumption that the material is protected by the First Amendment.
One tragic result of the Supreme Court’s remaking of obscenity law is that in 2009 the Court refused to review a lower federal court decision which invalidated the Child Online Protection Act. COPA would have required websites that commercially distribute sexual materials deemed “harmful to minors” to take reasonable steps to keep minors away. Without the protection of COPA, a child of any age can mistakenly/purposefully “click” to most commercial websites that distribute pornography and view this material free of charge and without restriction. In other words, at least when it comes to cyberspace, the federal courts have held that Congress cannot regulate the manner in which presumptively non-obscene pornography is distributed.
Now along comes U.S. Senator Tom Udall who wants the American people to amend the Constitution so that Congress and the States will have power to:
[R]egulate the raising and spending of money and in-kind equivalents with respect to Federal [State] elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal [State] office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.
Like most Americans I am troubled by the reality that money can and often does determine the outcome of elections, but, for example, while Michael Bloomberg’s personal fortune may have enabled him to become and remain the Mayor of New York City, that didn’t make him a bad mayor. Furthermore, neither the Democrats nor Republicans have a monopoly on persons with money; and, if the concern is persons with too much political clout, why not propose an amendment that would place limits on how much time and resources the news and entertainment media can “contribute” to campaigns? Furthermore, the underlying election campaign problem in the United States is not persons with too much influence; the underlying problem is that a large and growing number of adult Americans are politically ignorant and apathetic.
In conclusion, what prompted me to write this brief comment was an op-ed article by George Will (“Democrats’ embrace of extremism,” N.Y. Post, 9/11/14), which includes this quote:
Floyd Abrams, among the First Amendment’s most distinguished defenders, notes that the proposed amendment deals only with political money that funds speech. That it would leave political speech less protected than pornography…
See quote (in bold) re political speech v. pornography
Since Barry Goldwater, accepting the Republicans’ 1964 presidential nomination, said “extremism in the defense of liberty is no vice,” Democrats have been decrying Republican “extremism.”
Actually, although there is abundant foolishness and unseemliness in American politics, real extremism — measures or movements that menace the Constitution’s architecture of ordered liberty — is rare.
This week, however, extremism stained the Senate.
Forty-eight members of the Democratic caucus attempted to do something never previously done — amend the Bill of Rights. They tried to radically shrink First Amendment protection of political speech. They evidently think extremism in defense of the political class’s convenience is no vice.
The First Amendment as the First Congress passed it, and the states ratified it 223 years ago, says: “Congress shall make no law . . . abridging the freedom of speech.”
The 48 senators understand that this is incompatible — by its plain text, and in light of numerous Supreme Court rulings — with their desire to empower Congress and state legislatures to determine the permissible quantity, content and timing of political speech.
Including, of course, speech by and about members of Congress and their challengers — as well as persons seeking the presidency or state offices.
The 48 senators proposing to give legislators speech-regulating powers describe their amendment in anodyne language, as “relating to contributions and expenditures intended to affect elections.”
But, what affects elections is speech, and the vast majority of contributions and expenditures are made to disseminate speech.
The Democrats’ amendment says:
“Congress and the states may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections,” and may “prohibit” corporations — including nonprofit issue-advocacy corporations (such as the Sierra Club, NARAL Pro-Choice America and thousands of others across the political spectrum) from spending any money “to influence elections,” which is what most of them exist to do.
Because all limits will be set by incumbent legislators, the limits deemed “reasonable” will surely serve incumbents’ interests. The lower the limits, the more valuable will be the myriad (and unregulated) advantages of officeholders.
The point of this “improvement” of James Madison’s First Amendment is to reverse the Supreme Court’s 2010 Citizens United decision. It left in place the ban on corporate contributions to candidates.
It said only that Americans do not forfeit their speech rights when they band together to express themselves on political issues through corporations, which they generally do through nonprofit advocacy corporations.
Floyd Abrams, among the First Amendment’s most distinguished defenders, notes that the proposed amendment deals only with political money that funds speech. That it would leave political speech less protected than pornography, political protests at funerals, and Nazi parades.
That by aiming to equalize the political influence of persons and groups, it would reverse the 1976 Buckley decision joined by such champions of free expression as Justices William Brennan, Thurgood Marshall and Potter Stewart.
That one reason President Harry Truman vetoed the 1947 Taft-Hartley Act was that he considered its ban on corporations and unions making independent expenditures to affect federal elections a “dangerous intrusion on free speech.”
And that no Fortune 100 corporation “appears to have contributed even a cent to any of the 10 highest-grossing super PACs in either the 2010, 2012 or 2014 election cycles.”
There are not the 67 Democratic senators and 290 Democratic representatives necessary to send this amendment to the states for ratification. The mere proposing of it, however, has usefully revealed the senators who are eager to regulate speech about themselves:
Tammy Baldwin (Wis.), Mark Begich (Alaska), Michael Bennet (Colo.), Richard Blumenthal (Conn.), Cory Booker (NJ), Barbara Boxer (Calif.), Sherrod Brown (Ohio), Maria Cantwell (Wash.), Benjamin Cardin (Md.), Thomas Carper (Del.), Robert Casey (Pa.), Christopher Coons (Del.), Richard Durbin (Ill.), Dianne Feinstein (Calif.), Al Franken (Minn.), Kirsten Gillibrand (NY), Kay Hagan (NC), Tom Harkin (Iowa), Martin Heinrich (NM), Heidi Heitkamp (ND), Mazie Hirono (Hawaii), Tim Johnson (SD), Angus King (Maine), Amy Klobuchar (Minn.), Carl Levin (Mich.), Joe Manchin (W.Va.),Edward Markey (Mass.), Claire McCaskill (Mo.), Robert Menendez (NJ), Jeff Merkley (Ore.), Barbara Mikulski (Md.), Christopher Murphy (Conn.), Patty Murray (Wash.), Bill Nelson (Fla.), Jack Reed (RI), Harry Reid (Nev.), John Rockefeller (W.Va.), Bernard Sanders (Vt.), Brian Schatz (Hawaii), Charles Schumer (NY), Jeanne Shaheen (NH), Debbie Stabenow (Mich.), Jon Tester (Mont.), Mark Udall (Colo.), John Walsh (Mont.), Elizabeth Warren (Mass.), Sheldon Whitehouse (RI), Ron Wyden (Ore.).
The italicized names are of senators on the ballot this November. But, all 48 Senate co-sponsors are American rarities — real extremists.