Speech and Money
Optimizing the First Amendment
This is the latest post in my constitutional design series. You don’t have to have read any of the others to read this one.
This post is about free speech, campaign finance, corruption, lobbying - all the stuff covered under the First Amendment (besides freedom of religion). Note that this won’t be a legal argument about what the first amendment means. Instead, this will be an argument about what national policies on these topics should be, if you were to design things from scratch. I also won’t be discussing how exactly this should be enforced, whether it should be constitutionally mandated or just done via norms; that’s for a future piece.
Free Speech
From a constitutional design perspective, free speech is there to protect against the people in power limiting speech that undermines them, so that they or their side will have an easier time winning re-election. The underlying vision is the marketplace of ideas, that better ideas will become more popular and lead to better government.
The speech we really care about protecting here is politically relevant speech - that’s the stuff that can change who wins election. The prototypical example is campaigning for a specific candidate. This term also encompasses advocating for causes, like for climate change awareness or, yes, white supremacy. I also think on the outer periphery of this term, but still worth protecting, is any sort of academic, scientific, artistic, religious, etc. discussion. This discussion can lead to different values or beliefs gaining popularity in society, thereby making it more likely that certain factions win elections.
What’s not worth protecting?
I think there are some types of plausibly politically relevant speech whose substantive non-political harms make them potentially not worth protecting:
Classified information
Business secrets (like NDAs)
Calls for violence or other criminal activity
Commenting on currently pending cases (in a way that could bias the jury)
Intentionally misleading medical or financial advice
Fabricated research findings
And then there is speech which is not politically relevant enough to be worth protecting. Either it covers topics far enough removed from politics that it would be a stretch to call them politically relevant, or it’s not really speech that’s meant to inform or persuade in a way that would make it relevant to politics:
Tutorials on how to build weapons
Witness tampering
Intentionally false commercial (non-political) advertising.
Cigarette advertising
Deliberate disruption (screaming fire in a crowded theater)
Porn
Child porn
Revenge porn
Specific threats of violence
Personal insults, including racist/sexist tirades targeted at a specific person
Of course, you might still not want to ban these types of speech. You might think they don’t do harm, or that the harm they do is not worth the cost of banning them. But there is no problem with banning them from a constitutional design perspective: if the people in power banned these types of speech, it would not make it any less likely that they would get voted out.
The one potential wrinkle is if you think courts are not good enough at distinguishing between types of speech worth protecting and types which aren’t, and thus any restrictions at all would lead to a chilling effect. This is a valid concern, although I do think for some of these you can draw a line somewhere far enough away from protected speech that this doesn’t become an issue.
Campaign Finance
Theoretical Background
Democracy is about equality of political power. It’s not just about voting. That’s why everyone gets one vote, but also why it’s ok for politicians to run the country rather than having referenda for everything.
This presents a conundrum because the people with megaphones are always going to have outsized influence in society. You might view this as ok, because they are spreading information that will help voters make more informed decisions. On the other hand, you might view campaigning as essentially tricking voters into voting for candidate A; if voters only heard from different people, they would be voting for B instead. I think a good goal to aim for is to somewhat equalize the amount of campaigning for each side, so that voters can make informed decisions based on all information available without any side having a leg up.
Many countries try to do this through campaign finance restrictions, trying to prevent people with more money having more influence. People with megaphones are still going to have more influence, but at least people with money won’t be able to buy the megaphones.
In the US, the Supreme Court ruled in Citizens United v. FEC that the government cannot regulate private spending on campaign activities. This gave birth to the “Super PAC”, an organization which is technically private and not associated with any campaign but which spends money advocating for certain candidates.
I don’t think this decision was as outrageous as left-wingers think. Because money is necessary for spreading speech, if the rule is that all speech must be protected, it’s genuinely tricky to draw a line that protects free speech and not unlimited private campaign spending. But maybe that shouldn’t be the rule. Maybe it’s ok to regulate certain parts of the speech environment as long as it’s done in an impartial manner.
The vision here is that the government sets out the proper procedures and limitations on campaigning. Anyone can use these procedures to campaign for whichever candidates they want, but you have to use these procedures. This is the approach taken in other countries. I’m open to the idea of lumping in cause advocacy here as well, but I don’t think it should include all politically relevant speech because regulating things like scientific discussion would be a nightmare. Because it’s done without regard to the content of speech, the government can’t limit opposing speech by banning it; they can only subject it to the same restrictions that the government itself is limited to.
The issue is that classifying what counts as paid campaigning is a really difficult task for which you need to draw some arbitrary lines. There are two main problems here. First you have to determine what counts as campaigning: What if a journalist says positive things about a candidate without endorsing them? What if a think tank writes a report endorsing a candidate’s proposal? Then you have to determine what it means to “pay for” speech: What if you pay for a ghostwriter? What if you write a screenplay but pay someone to act in it?
The fact that this is done in a lot of countries leads me to believe this is possible, but I also wouldn’t be too surprised if this is done poorly and it’s not really possible to draw sensible lines that aren’t easily evaded and don’t lead to severe speech crackdown.
One thing I would not regulate however is voter analytics. I think it’s good for democracy when analysts tell politicians how voters are thinking so they can better tailor their policy. Even tailoring message without tailoring policy is arguably good in that it lets voters be better informed on issues that matter to them. It might be a bit strange to regulate only certain types of campaign activities and not others, but I think it’s doable.
As an aside, you can try to regulate megaphones further by eg restricting social media influencers from endorsing a candidate. This is an even trickier thing to do - for instance you probably have to make a distinction between people who are in the business of expressing political opinions (eg journalists) and those who aren’t - but I might be in favor of a regulation like this if you designed it carefully.
The Practice
If you have a good way of classifying campaigning, I think it’s a good idea to limit the amount of money parties/candidates are allowed to spend and how much any individual or corporation is allowed to donate. You might still want to allow some private money: it is helpful in rewarding parties with bigger bases, which is especially useful in a multi-party system or with primaries where it’s not clear what equalizing campaign spending would really mean. Private money has the downsides of forcing candidates/parties to put a lot of their time and energy toward fundraising, and of still rewarding rich bases to some extent. Additionally, private money rewards parties with more engaged support bases, which I think is a good thing, although you might not like it if you don’t think more politically engaged people should have more power (see my posts on Electoral Systems and Voting Laws for more discussion).
Regardless of whether you have limitations on private money, I think it’s a good idea to supplement it with public money to level the playing field a bit. In any multi-party system or primary, you have to decide whom to give money to and how much. There are a few options:
Give money to any party/candidate based on the number of signatures. Either give money to all candidates who reach a signature threshold, or give parties more money the more signatures they get.
The main problem with this is signature fraud: it’s quite difficult to verify that the signatures on a petition are legit. If you have a good way of preventing signature fraud, I really like this method though - it’s a good rough way of assessing party viability. It also rewards having engaged supporters.
Use polling data.
I really don’t like this one: you need to decide what counts as an official poll, differences in polling methods could affect who gets the money, and no matter which method you choose there is always polling error - the latter two are particularly big problems in a primary.
If you have a first round of voting, you can use that. Allocate money based on how well each party/candidate did in the first round, or just give money to all candidates that made it to the second round.
(For parties only) Use past electoral performance: allocate money to parties based on the share of the vote or number of seats they got in the last election.
This puts new, less established parties at a huge disadvantage, so I wouldn’t make it the only method of allocating money, but it could be a nice addition.
(For parties only) Allocate money to parties based on how many party members they have.
As with the previous option, this puts new parties at a big disadvantage. This method also rewards having engaged supporters. Additionally, this has the advantage of encouraging voters to become members only of parties they’re invested in, which can help with closed primaries; more on this in a future piece.
You also have to ensure that this money actually goes toward campaigning and doesn
Corruption
Free speech mainly covers advocacy meant to convince the public. Speech or money meant to convince the government itself is another issue.
There should be very strict limits on the ways a politician is allowed to receive money and gifts. Luxury plane rides, book sales, stocks, all of that should be tightly controlled.
Politicians should be monitored very closely to ensure they aren’t taking bribes. This comes at the expense of privacy, which probably means some competent people who don’t want to be monitored so closely won’t run for office. (Though maybe it doesn’t make too big a difference because politicians’ personal lives are exposed anyway during campaigns). Too bad. Corruption is very bad.
You should extend this quite far down to low-level people in the executive. At lower levels, you probably don’t want to monitor too closely, as you really need talent there. But you should still control how they are allowed to receive money.
Of course, you need someone to expose this corruption and someone to prosecute it. There are probably good constitutional design mechanisms you can build in to try to facilitate that. I’m not going to go over these in this series, at least not for now, on account of my limited knowledge of developing countries where this is more of an issue.
One thing I will say: politicians should be compensated considerably so they don’t feel the need to seek out bribes. This has the other advantage of attracting more talent from the private sector. It also means politicians will have more incentive to win re-election, making them more willing to sacrifice their own political views. This pushes a country toward consensus democracy where politicians more tightly reflect the views of the country, and away from accountability democracy where politicians more honestly push for what they believe in and voters judge them for the results. This may be good or bad depending on your preferences.
Lobbying
Lobbying is when interest groups provide input to politicians as they are crafting policy. Lobbying provides officials with information that they rely on as they earnestly try to craft good policy.
As long as lobbyists are not providing bribes, lobbying seems fine. Politicians can just not use the information if they don’t want it. Politicians will often also only turn to interest group lobbyists they already support - right wing politicians turn to corporations, left wing politicians turn to civil rights groups and unions. Sure, the presence of lobbyists might make politicians value the views of the public less, but the alternative is probably just worse policy when politicians are lacking in information. You just hope that politicians are well informed enough not to need to rely on lobbyists for everything, which you can try to achieve by not having term limits, by paying them well, etc.
The issue is that preventing corruption is difficult. For this reason, I’m ok with limiting lobbying activity if corruption is too big of an issue. Perhaps you could set up proper channels for lobbying - like public comments on legislation as is done for regulations in the US - to limit funny business.