2020 Presidential Election

[yovargas]

Limits on spending in elections would, imo, fall under the idea of 'manner of holding elections' and that is something that can be regulated; and in fact we have a long history in this country of attempting to legislatively control the use and corrupting influence of money in elections.

Do you know if this particular clause has been interpreted that way by the courts, or is this your interpretation?

[Cerin]

This my interpretation (as indicated by my use of 'imo'), based on the fact that there have been many laws passed over the years involving money and elections. I'm sorry, I don't know if it has been interpreted that way by the courts, or if they have ever been called on to interpret it.

[yovargas]

It's not an unreasonable interpretation and it wouldn't surprise me if some courts had basically taken that view of it. As written though, it feels like a bit of a stretch to me. There is a pretty big difference between saying the government can determine how elections will be handled, and the saying the government can determine how a campaign will be handled. Campaigns and elections are two separate things. Governments hold elections. Individuals run campaigns.

[Cerin]

There is a pretty big difference between saying the government can determine how elections will be handled, and the saying the government can determine how a campaign will be handled.

A campaign doesn't exist apart from an election. There is no need for campaigns without elections. It's unlikely anyone would be elected without campaigning. They are part and parcel of the same system.

Campaigns and elections are two separate things. Governments hold elections. Individuals run campaigns.

Individuals run campaigns in accordance with the laws governments make to govern campaigns.


Any law has to balance all aspects of the Constitution that pertain. Free speech doesn't exist in a vacuum, any more than the right to bear arms does. Free speech isn't the only thing to consider in establishing rules for campaigns and elections. The idea of a representative government is that everyone is represented, not just those wealthy enough to buy influence, or in this case, to overwhelm and dominate the civic conversation. So the idea of free speech must be balanced against the importance of equal voice in a representative democracy. The Constitution grants to Mr. Bloomberg the same freedom of speech it grants to you. It says he may speak freely, not spend money freely to buy public office. (I don't know what specific laws or court decisions allow Mr. Bloomberg to spend as much money as he wants to get elected, but I think the law should prohibit it.)

[River]

The Supreme Court has ruled that spending money is protected speech. I agree it's distasteful. Sadly, it is not currently illegal. There is a long-simmering push to change that, though. Anyone who talks about overturning Citizens United (the ruling that uncorked this) is trying to make that change.

[elengil]

There is a pretty big difference between saying the government can determine how elections will be handled, and the saying the government can determine how a campaign will be handled. Campaigns and elections are two separate things. Governments hold elections. Individuals run campaigns.

But there are already laws about campaign finance - both in terms of how it can be spent, but also how it can be raised, and even how much an individual not even running can contribute! So I'm not sure where you are drawing such a sharp distinction. I realize you are not saying absolutely that is the case, it just seems odd to say they are so very different when there are already relevant laws in place.

IMO saying you can have the best candidate money can buy is an antithesis of a democracy, for true representation there should be far better access to run than having to be rich or appeal to the rich. I appreciate the campaigns that are so strongly funded by individual donors for that reason.

[yovargas]

There is a pretty big difference between saying the government can determine how elections will be handled, and the saying the government can determine how a campaign will be handled. Campaigns and elections are two separate things. Governments hold elections. Individuals run campaigns.

But there are already laws about campaign finance - both in terms of how it can be spent, but also how it can be raised, and even how much an individual not even running can contribute!

I did not say anything for or against campaign finance laws. I only pointed out that there is a difference between an election and a campaign, and so that particular clause about elections is not, imo, relevant to a discussion about campaigns.

[elengil]

There is a pretty big difference between saying the government can determine how elections will be handled, and the saying the government can determine how a campaign will be handled. Campaigns and elections are two separate things. Governments hold elections. Individuals run campaigns.

I did not say anything for or against campaign finance laws...

Was that not the entire context of this discussion? The spending of money on campaigns and the potential regulation thereof? The question of whether the government can regulate campaigns/campaign spending?

[yovargas]

And Cerin said that in her view, laws on limits on campaign spending should fall under the "manner of holding elections" clause. And I disagree it would fall under that particular clause because elections and campaigns are different things. If there is some other Constitutional justification, then we can discuss that too, but I think that particular justification is bad.

But almost no one really cares about the notion of Constitutional justification anymore so if you don't find that discussion relevant, feel free to ignore it.

[elengil]

And Cerin said that in her view, laws on limits on campaign spending should fall under the "manner of holding elections" clause. And I disagree it would fall under that particular clause because elections and campaigns are different things. If there is some other Constitutional justification, then we can discuss that too, but I think that particular justification is bad.

But almost no one really cares about the notion of Constitutional justification anymore so if you don't find that discussion relevant, feel free to ignore it.

That was unnecessarily snarky.

Are you suggesting that any and every law we have must be directly supported by the Constitution, rather than saying that any and every law is acceptable provided it does not directly contradict the Constitution? That's going to throw a whole lot of laws into question if that is your stance.

I was pointing out that whether you think there is direct constitutional support, or merely passively not being prohibited, we already have laws in place regarding this subject, so trying to argue that there is no support for government regulation is a bit of closing the barn door after the horses have left.

If it is simply a question of what the justification for such laws exist then I could see both sides, but just saying that because there is no direct support means it's outright prohibited, I can't agree with that on any level.

[yovargas]

Are you suggesting that any and every law we have must be directly supported by the Constitution, rather than saying that any and every law is acceptable provided it does not directly contradict the Constitution?

I am not saying that, the Constitution does, explicitly.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

IOW, if the Constitution does not say that the federal government can do X, then the federal government cannot legally do X.

But I wasn't being snarky when I said almost no one really cares about that anymore. If you ever hear it referenced, it is about someone trying to find their way around it, which has become increasingly easy over time. It turns out if one just reinterpret things in the way that one prefers, then you can make the Constitution do and say almost anything you want it to.

[elengil]

Are you suggesting that any and every law we have must be directly supported by the Constitution, rather than saying that any and every law is acceptable provided it does not directly contradict the Constitution?

I am not saying that, the Constitution does, explicitly.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Powers and laws are not the same thing. Congress makes new laws - that wouldn't even be a question if the only laws the federal government was allowed to have were ones already put forth in the constitution. I can understand arguing whether any given law is an overreach, but I can't agree that there must be direct active support for new laws in the Constitution rather than deciding if new laws actively violate it.

So powers then, not laws. Whether the government has the power to regulate campaigns. Which as I've already said, they have laws in place which already regulate finances in regard to campaigns, so the discussion is whether this is an overreach or an allowable regulatory power?

[yovargas]

I can't agree that there must be direct active support for new laws in the Constitution rather than deciding if new laws actively violate it.

This isn't a matter of agreeing or disagreeing, it is quite simply what the Constitution says. The federal government can only create laws that are within the specific scope of powers listed in the Constitution. The courts have always interpreted it this way, even today when they are much looser with how they interpret federal powers than they used to be. This isn't really even controversial, it is a basic fact of how the Constitution was designed. The only controversy is what does or does not fall within those powers.

[elengil]

The only controversy is what does or does not fall within those powers.

Which brings us right back to where we were to begin with - we already have campaign finance laws, so either no one has brought a case against it as an overreach of power, or it is already within the government's power to regulate.

[yovargas]

Fair enough. So I decided to try and look into it a bit and try and find out under what Constitutional power existing campaign finance laws have been justified. I read a decent bit and couldn't get a 100% clear answer but it does indeed seem that Congress and the Courts have allowed that regulating campaign finance does indeed fall under the general powers of managing elections as Cerin suggested. So their you go.

The question of campaign money has been pretty tricky for the courts. Again, it's not 100% clear to me but based on the good bit of reading I just did (who needs to do work when there's constitutional questions to be investigated?), but what it seems like to me is that courts have been okay with campaign finance laws as long as they are clearly, specifically targeting money of an official federal campaign. Because the interpretation is (again, from what I'm gathering) that the fed can regulate elections and campaigns, but it can't regulate the general public who isn't an official part of a campaign and just wants to go out and talk about it. Thus current laws (if I'm interpreting this correctly) would prohibit a campaign from accepting a million dollars from me, but would not prohibit me from taking that million and spending it on a Super Bowl ad saying how totally awesome candidate Whosiwats is (I think?).

I can totally understand how this gets to be a very tricky balancing act for a court. They seem to have pretty consistently said that regulating how much money an "independent" actor can spend on political speech is a first amendment violation and my instinct is to agree. Surely regular people who are not a part of a campaign organization should be free to go out and speak their mind about political issues. But they've also been consistent in saying that "official" participants in elections can be regulated as part of the gov's election powers. If that's the case it certainly seems like it would be well within the fed's power to make rules to prevent billionaires from coming in and spending a megaton of their own money to get their name out. But it's so easy to get around any restrictions as long as you find some less official route that I don't know what the courts could really do besides say anything spending in favor of a candidate or cause is subject to election rules. Something which very much does not sound like a good solution, and which the courts would certainly not endorse.


(Apologies if my afternoon's attempt to understand a subject that I previously knew very little about has misrepresented any of what's really going on with these issues. )

[narya]

(Apologies if my afternoon's attempt to understand a subject that I previously knew very little about has misrepresented any of what's really going on with these issues. )

Hey, you are doing a lot better at it than I am!

[Voronwë the Faithful]

Cory Booker has ended his presidential campaign. That means that Yang is the only person of color left, and he is a fringe candidate at best (even if he has done somewhat better than expected).

[yovargas]

Feel bad for Booker who seemed like he deserved more attention than he ever managed to get for some reason.
These primaries would have been so much better if Biden hadn't taken up so much of the oxygen. (You may have gathered I am not a fan of Biden....)

[RoseMorninStar]

Feel bad for Booker who seemed like he deserved more attention than he ever managed to get for some reason.
These primaries would have been so much better if Biden hadn't taken up so much of the oxygen. (You may have gathered I am not a fan of Biden....)

True, but it wasn't any fault of Biden (directly anyway). It was manufactured by Trump & Co.

[Cerin]

There's a 3-hour CNN debate tomorrow night.

Bloomberg is reportedly spending lots of money setting up his campaign apparatus in states that come after the first three primaries, which he wrote off. (I'm nervous about Bloomberg, in spite of Voronwë's assurances).