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.

Income Inequality (16b): Its Moral Significance

Will Wilkinson’s recent paper on income inequality argues that it’s an overrated problem (see also here). Before I deal with his arguments in detail, a quick reminder of my personal views on income inequality. From the point of view of human rights (which is my default starting point), the most urgent problem is not necessarily the unequal distribution of wealth or income, but the insufficient wealth and income of the poor in a given population. The urgent problem is absolute poverty, rather than relative poverty. Or, in other words, what we have to tackle first is some people’s inability to gather sufficient resources necessary to survive in a decent way, not the fact that some people have more resources than others. The human rights of people in a very poor but highly egalitarian society can be violated more extensively than the human rights of the relatively poor in a society that is very rich on average but highly inegalitarian. Eliminating or reducing income inequality – or “killing the rich” (metaphorically) as in the image above – doesn’t necessarily help the poor.

However, inequality can be a problem. The absence of poverty or the availability of sufficient resources for a decent human life is a human right, but it isn’t the only human right (some would even say that it isn’t a right at all, but I disagree, together with the drafters of the Universal Declaration). Human rights also include political human rights, and these political human rights usually mean the right to democratic participation in government and legislation. Income inequality makes these political rights highly problematic. Democracy is based on the equal influence of every citizen, but income inequality, by definition, gives the wealthier citizens more influence in politics.

In addition, income inequality may also lead to social fragmentation, with negative consequences for the cohesiveness of a society. We see that highly inegalitarian societies, such as the U.S., are also societies with relatively low levels of social mobility. One could argue that income inequality isn’t much of a problem when everyone has the same chance to be on the good side of the inequality. But when it is combined with social rigidity and stratification, it undermines meritocracy and equality of opportunity, which in turn enhances social fragmentation.

Finally, people in more egalitarian societies tend to be healthier, to live longer and to be happier (as Wilkinson should know).

These are serious issues from the point of view of human rights. If reducing income inequality (for example through progressive taxation, public spending – on welfare, education, healthcare etc. –  and regulation of political funding and lobbying) can go some way towards a solution, we should consider it.

One last point: all these issues are based on the assumption that income inequality is the outcome of just processes. In other words, we assume that people’s incomes are the result of their own desert and effort. If, on the other hand, we assume – more correctly in my view – that income and wealth distributions are affected by unjust processes (such as colonialism, slavery, discrimination, inheritance and a lack of social mobility etc.) than we have additional reasons to do something about income inequality. And these reasons have nothing to do with the negative consequences of inequality. They are, instead, related to its origins.

(If you want to know more about my views on income inequality, before I tackle Wilkinson’s views, you can read this old post).

Wilkinson claims that

income inequality is a dangerous distraction from the real problems: poverty, lack of economic opportunity, and systemic injustice.

Those are real problems indeed, and even more urgent problems, as I’ve stated above. But income inequality is also a real problem, and I fail to see how one problem is necessarily a distraction from another problem. Human beings are perfectly capable of tackling several problems at the same time.

He also states that

there is little evidence that high levels of income inequality lead down a slippery slope to the destruction of democracy and rule by the rich.

That’s not true, as you can read here and here. Income inequality obviously doesn’t necessarily “destroy” democracy or replace it with “plutocracy”, but it significantly reduces its meaning, on both sides of the income gap: wealthy people use their wealth, their higher education, their networks etc. to gain influence, and poor people tend to participate less and thereby lose influence. While it’s true that wealthy people can use their political influence for the benefit of their poor fellow-citizens, it’s still a fact that many don’t. If we cherish democracy, we should implement policies that limit the risk of selfish interventions by disproportionately influential individuals or groups, as well as policies that encourage participation of relatively less influential individuals and groups. It’s not sufficient, as Wilkinson does, to point to the fact that many wealthy people voted for Obama, knowing that he would raise their taxes.

Wilkinson also believes that the level of American income inequality was not caused by exploitative, institutional mechanisms. Given the historical inheritance of slavery and discrimination, I think this opinion is false. This inheritance, combined with astonishingly high levels of correlation between parental income and the income of children, does suggest that there are institutional mechanisms which perpetuate income inequality. While it’s wrong to claim that the inheritance of racism and slavery is to blame for the poverty of African-Americans living today, it’s very likely that it has some effect.

Few people argue for a completely egalitarian society. I certainly don’t. Some inequalities are perfectly just, and probably necessary from the point of view of economic efficiency. But there are many who argue for the opposite: don’t do anything about inequality. While I don’t believe Wilkinson is one of them, his statement that “income inequality is a dangerous distraction” encourages those who believe that we shouldn’t care about inequality.

What is Democracy? (27): Independent Political Parties

Disadvantages of private funding for political parties

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

The financing of political parties in a democracy is a controversial matter, especially in a democracy such as the US where parties and candidates have to spend huge amounts of money on advertising and promotion in highly mediatized campaigns. If parties and candidates’a0have to rely on private donations, there is indeed the danger of unequal influence: parties are likely to listen more closely to the requests and opinions of private groups, and these groups then acquire more influence than the ordinary citizen. A democracy should try to achieve the ideal of equal influence.

Moreover, the unequal influence of donors is likely to be self-interested and non-transparent. And it can become corruption.

Party financing scandals have rocked countries in every region of the world, generating increased contempt for and public disillusionment with parties and politicians, and undermining public confidence in the political process. (source)

Disadvantages of public funding for political parties

On the other hand, when you don’t allow private donations you probably alienate the public from politics. A donation is an expression of a political opinion and of support for a candidate, and should be protected by the freedom of speech. Most people want nothing in return, except for the keeping of promises. If the system is widespread and popular, the risk of favors in return for donations is small. Also, government subsidization of political speech may be as unfair as private funding: how shall the state decide which candidate to fund and which not? And, finally, it seems unjust that citizens’a0are forced to subsidize with their tax dollars candidates and political speech with which they disagree.

Mixed and limited system

So perhaps a limited system could work:

  • maximum amounts of donations
  • income disclosure obligations for politicians
  • general transparency of the system including expenses by candidates
  • bans on some kinds of donations (for example donations from racist organizations)
  • a mixed private-public funding system
  • prohibition of “indirect funding”, funding to front organizations not legally linked to a candidate or a party but promoting their election nevertheless (e.g. the infamous Swift Boat Veterans)
  • rules on equal media access as a limit on the publicity opportunities of the wealthiest candidates
  • anonymous campaign contributions
  • voting with dollars“: voters would be given a $x publicly funded voucher to donate to federal political campaigns’a0as they please (see here as well)

This is a good database of the funding and spending situation in the US.