Limiting Free Speech (36): Are Restrictions on the Financing of Political Campaigns a Violation of Freedom of Speech?

Whether or not, to what extent and it which manner the law should regulate the financing of political parties, candidates and campaigns, is a difficult question for democracies. Two democratic values –  freedom of speech and equal influence – seem to be incompatible.

Equal Influence

On the one hand, a democracy adopts the ideal of “one man, one vote“. That means that everyone’s voice should have equal weight, and every person should have equal influence in the decisions on who gets elected and which laws are passed. If you don’t want people to have equal political influence, you don’t adopt the principle of one man, one vote. Then you give some people more votes than others or you just exclude some people from the right to participate in elections.

Restrictions on party financing – such as maximum amounts for donations, prohibitions on donations by corporations etc. – are designed to enforce equal influence (or better promote equal influence, because other elements beside money can give some people more influence than others – talent for instance). If rich people or rich corporations are allowed to donate without limits, it’s likely that the political beneficiaries of these donations will give more attentions to certain interests than to others and that the ideal of equal influence recedes into the background.

What is necessary is that political parties be autonomous with respect to private demands, that is, demands not expressed in the public forum and argued for openly by reference to a conception of the public good. If society does not bear the costs of organisation, and party funds need to be solicited from the more advantaged social and economic interests, the pleadings of these groups are bound to receive excessive attention. John Rawls

Freedom of Speech

On the other hand, democracies, by definition, care a lot about human rights, including freedom of speech. It’s impossible to imagine a democracy functioning without freedom of speech and many other human rights. The problem is that party financing and political donations are clearly acts of speech. By donating to a party, you state your political preferences.

Restrictions on political financing are restrictions on freedom of speech in another way as well. Take the case of “Hillary: The Movie“, an unbelievable piece of shit attacking Hillary Clinton. As all pieces of shit that have taken the form of speech, it should be protected by the First Amendment. Freedom of speech doesn’t only protect thoughtful and interesting speech. And yet the distribution of the movie was hampered by the threat of fines. The Bipartisan Campaign Reform Act of 2002 – also known as the McCain-Feingold Act – bars corporations or labor unions from financing the broadcast of election messages before elections. The movie in question violated this rule. And it’s a sensible rule from the point of view of equal influence. If you allow people with deep pockets to flood the airwaves with biased messages – especially around election time – you are likely to influence the outcome of the elections in a way that favors the interests of those deep pockets. Most democracies have rules like this in place.

So not only direct donations to parties or candidates can be restricted, but also the indirect use of funds for the benefit of parties or candidates. Restrictions on funding the broadcast of political views is even a more direct restriction on freedom of speech than the restrictions on donations to parties or candidates.

The question now is whether these are legitimate and acceptable restrictions on freedom of speech. The U.S. Supreme Court will soon decide on this, and is likely to throw out all restrictions.

It’s not a simple question of free speech against democracy. These two ideals aren’t contradictory. Democracy needs free speech, so limiting free speech for the sake of democracy doesn’t make a lot a sense. However, democracy doesn’t just need free speech, it needs some level of equal freedom of speech. If the voices of the strongest always silence the voices of the weaker – the less talented speakers, the shy, the people without money to buy advertising time, to finance “movies” or to “buy” politicians – I think it’s fair to say that we have strayed a long way from democracy. One person’s right to free speech shouldn’t overwhelm another’s right. It’s a fundamental principle in the whole system of human rights that these rights are equal rights. In a way, this is similar to the problem of the heckler. In this post, I defended heckling as a legitimate exercise of the freedom of speech, on the condition that it doesn’t destroy someone else’s right (the heckled in this case).

On the other hand, you could say that unlimited financing rights promote rather than destroy equal influence and equal rights. For two reasons. If donations are widespread, the risk that politicians become dependent on particular private interests and start to favor certain elements in society, is diluted. And there’s also the fact that incumbents usually have no problem getting their message across. They have easy access to the media. Challengers on the other hand often need relatively large sums of money to do the same. Restrictions on financing could favor incumbents. However, unlimited financing rights – because they are unlimited – benefit incumbents and challengers equally. So this argument based on the needs of challengers unwillingly makes the case in favor of regulation.

It seems that everyone is in favor of some kind of regulation. It’s the precise nature of regulation that is contested. I’ve proposed a system here.

Marx, Democracy and Human Rights, Ctd.

Some second thoughts after this and this. The system of private ownership of the means of production (factories, natural resources etc.) that characterizes the capitalist economies of all developed and many developing countries has proven to be very resilient and very successful economically speaking. Marxism and communism traditionally criticize this system, for many different reasons, the most important one being the alleged exploitation of the workers employed by the owners of these means of production.

However, in this blogpost, I want to focus on another, less well-known criticism. Marxism claims that the private ownership of the means of production yields not only an unfair share of economic power, but also of political power, especially when, as is more and more the case, the means of production also include information production (news, TV, movies etc.).

From the point of view of the defenders of democracy (such as we), that’s a highly relevant criticism, and its relevance hasn’t decreased during the century and a half since it was first expressed. It’s relatively uncontroversial to state that in all democracies the owners of the means of production influence democratic processes with

• financial means (lobbying, campaign finances or outright corruption),
• ideological means – as was already known to Marx
• but also with information technology.

They use these means in order to further their own interests. Well-developed democracies have systems to detect and correct this (a free press for example) but these systems can themselves be “infected”.

Disparities in economic power tend to distort the democratic process. This process is based on the ideal of equal influence and the equal importance of everyone’s interests. But that’s an ideal. Existing democracy, as opposed to ideal democracy, often serves the interests of a particular part of the population (e.g. what marxism called “the ruling class”) rather than the interests of the people, in which case it is perverted or imperfect.

The purely formal abolition of the difference between rich and poor in a democracy – every citizen has one vote and as many rights as the next citizen – cannot hide the reality that some citizens can influence policies and public opinion much more than others and hence have more power. The difference is only abolished formally; in reality, democracy may serve to widen it given the fact that relatively powerful individuals or groups can use democracy to become even more powerful.

The communist theory that politics, including democratic politics, is a capitalist tool or that the state is a “capitalist machine”, has had an enormous success, even with people who are not communists or even anti-communists. Who is not convinced that the numerous military or covert interventions of the United States elsewhere in the world served the interests of American companies and American economic supremacy in general? Or that the elections in democracies are heavily biased by big business which wants politics to serve certain interests and therefore funds candidates, lobbies officials, indoctrinates the public through grossly biased television channels etc.?

The reason for this success is that the theory is based on reality. Politics is to some degree influenced by the economy and communism is still relevant to us today because it reminds us of this and because it was the first theory to systematically expose this. Also relevant and significant today is the theory that oppression is not only a power thing but is also based on ideology, persuasion, information etc.

What we have to reject is the communist insistence on determination. Politics and narratives are influenced but not completely determined by economics. According to communism, the superstructure of consciousness, religion, morality, politics and law is a mere product of the substructure of productive forces and class relations. However, we must accept that politics can be much more than violent oppression, ideological indoctrination or perversion of democracy for the purpose of maintaining class and property relations.

In a democracy especially, we see that politics can be a powerful tool for people to determine and control their common destinies and to expose and undo economic injustices. Consciousness and thinking are obviously much more than ideological shadows of the light of economic reality. (And religion is of course much more than opium for the people. It has many beneficial effects which we need not mention here. Even if it is a bag of illusions, which no one and not even Marx can prove, it is still a fact that religious illusions can have morally beneficial effects and can make life easier to bear. So why try to strip people of their illusions – which has proven very difficult anyway – for the sake of a better yet uncertain future?)

It is wrong to claim, as communism often does, that the economic perversion of democracy is a necessity. Communism sometimes acknowledges that improvements in the situation of the workers can be the product of democratic politics (no room to include citations here). However, these are mere footnotes in communist theory. In most cases, communism demands revolution and an entire change of system, based no longer on the private ownership of the means of production. Private ownership softened by economic and social human rights, social-democracy, legally enforced improvements for the workers etc. is not enough. It doesn’t have to be softened but replaced by the community of the means of production, or communism.

Communism therefore fails to acknowledge the importance of legality, and particularly of democratic participation in legislation and of the use of human rights (especially economic rights) to improve the situation of those who are worst of. Human rights are more than the right to private property. They include economic rights and the participation in democracy by workers’ representatives. The effective exercise of these rights can lead to some kind of redistribution of property, better working conditions, corporate participation and less poverty.

No matter how strong the influence, the economy and economic power do not completely determine politics and law. Human rights and democratic participation for example can and do change the economy. Human rights are more than purely formal, and certainly more than false consciousness, convincing the people that they are equal when they are not, and thereby deflating any pressure for change and maintaining the status quo. They can give power to those who want to change the economy. This is insufficiently acknowledged by communism. It is even likely that communism’s rejection of rights and democracy as bourgeois exploitation tools has facilitated human rights violations of totalitarian communist regimes.