Trickle down civil rights policy

This post deals with point #3 on my list of arguments made by Glen Greenwald in his articles regarding the court decision invalidating certain campaign finance regulations.

This is, on the face of it, the most specific of Greenwald’s points, although as it turns out, it does have some wide ranging implications. He begins:

What is overlooked […] is how ineffective these campaign finance laws are.  Large corporations employ teams of lawyers and lobbyists and easily circumvent these restrictions; wealthy individuals and well-funded unincorporated organizations are unlimited in what they can spend.  It’s the smaller non-profit advocacy groups whose political speech tends to be most burdened by these laws.  Campaign finance laws are a bit like gun control statutes:  actual criminals continue to possess large stockpiles of weapons, but law-abiding citizens are disarmed.

There is very little question in my mind that Greenwald is completely correct in saying that campaign finance laws are ineffectual. In a society that is built around the concept of ownership, it would be quite difficult to insulate political discourse from the effects of this institution, and the government has no interest in spending the effort in doing so, since it is populated by people who got there by being backed by wealthy organizations and people.

The rest of the argument, however, is without merit for several reasons:

1. Greenwald’s claim that “smaller non-profit advocacy groups” are burdened by the campaign finance laws, however, is unsubstantiated as far as I can tell. Greenwald himself does not provide any evidence for it.
2. Even if campaign finance laws do encumber small organizations disproportionately, this effect is surely negligible compared with the effect of the laws regulating access to mass media through the mechanism of ownership. Ownership of mass media – a mechanism in which the states ensures that access to the attention of the public is at the discretion of some interested party – is a draconian government policy which limits the “speech” of “smaller” (i.e., poorer) groups. Focusing concern at rules with minor effects while accepting different rules whose effects are dramatic is inconsistent.
3. Even if campaign finance laws do encumber small organizations, and even if it were a significant hurdle compared to other laws, one could still advocate re-designing the laws so that they apply only to large organizations instead of advocating eliminating them all together. The approach Greenwald takes can be termed “trickle down civil rights” in which we hope that by giving enough rights to the powerful, some rights would trickle down to the weak. This, of course, make no more sense in the context of civil rights than it does in the context of economic benefits. It is at least as true in the competition for attention as it is in economic competition that “freedom for the pike is death for minnows”.

As an aside, the gratuitous reference to gun control laws does nothing to strengthen Greenwald’s argument. There is no reason to think that the dynamics that he describes (gun control laws leave the law abiding citizens defenseless against the armed criminal) are anything more than a libertarian’s fantasy. There is a large body of research on the subject and the evidence seems to show that gun control is effective in reducing crime. Tim Lambert’s blog, Deltoid, is a good starting point for learning about this.

Greenwald continues:

[O]n both pragmatic and Constitutional grounds, the issue of corporate influence — like virtually all issues — is not really solvable by restrictions on political speech[,]

and concludes:

There are few features that are still extremely healthy and vibrant in the American political system; the First Amendment is one of them, and the last thing we should want is Congress trying to limit it through amendments or otherwise circumvent it in the name of elevating our elections.  Meaningful public financing of campaigns would far more effectively achieve the ostensible objectives of campaign finance restrictions without any of the dangers or constitutional infirmities.

Obviously, as I point out above, restrictions on political speech are ubiquitous (if by “speech” one includes, as Greenwald does, the garnering of attention, rather than restricting it to speaking in a closed room) in the form of the government granting exclusivity for the use of mass media to certain parties, and, as I pointed out before, since attention is a finite resource, restrictions on the use of this resource are unavoidable. It is therefore only a question of which restrictions are in place. Greenwald is thus not advocating the elimination of restrictions but the imposition of certain restrictions rather than others.

As for the health and vibrancy of the First Amendment – positive scores for those can only be given if one considers only the ability to form and express ideas in intimate, limited settings. One can, relatively freely, form ideas and share them with friends and passers-by (physical or virtual). However, while should not take even such limited freedoms for granted, these are only one step removed from being allowed to form and express ideas in a closed, empty room. Again, once one considers the garnering of attention as an inherent part of “speech” – again, as Greenwald routinely does – the First Amendment is in shambles^[1]. Further powers granted to the powerful speakers will not trickle to the weak – they comes directly at the weak’s expense.

Of course, the campaign rules under discussion can hardly be considered as empowering the weak, but that does not mean that other, better rules regulating “speech” (i.e., the garnering of attention) cannot be devised.

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[1] It may be worth noting the obvious – that the First Amendment was likely conceived and perceived as granting power only to a small subset of people – the rich and powerful. The literal reading of its word as guaranteeing everybody the rights to command other people’s attention is a modernism.

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