Well, I Think McGovern is Wrong

Update: Welcome Campaign Spot readers to the “Blog That Cannot be Named.”  (Geraghty’s description made me immediately think of Harry Potter, proving what a nerd I am.)

Enjoy your stay.  Check out the main page for various campaign-related issues and other random commentary.  For instance Jerry Brown apparently isn’t a very good attorney general—you know, if you think that attorneys general should actually know the laws they are suppose to enforce.  I also poke a hole in the claim that Christine O’Donnell created a false internet resume, here and here—which might be shuffling deck chairs on the Titanic, but oh well.  And Gerry Connolly (D-unce), running for reelection here in Northern Virginia, confesses he is not doing his job and indeed doesn’t know how to do his job.  Oh, and sixteen arguments why sex is healthy for you.  Okay, now we know what everyone will click on.


Also, watch Patterico; I may be guest blogging very soon, and even if not, they often have useful stuff.

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Update: The story gets weirder.  He actually has two explanations.  The first was during the debate and that time he denied saying it, but instead claimed he said that he was saying “my friend’s” interpretation of the constitution was wrong.  I guess the charitable way to interpret it is he misspoke and literally thought he said what he meant to say, rather than what he did say.  Interesting.  But then we have the previously reported he claimed he meant to say the court was wrong.  I decided to look a little deeper and it appears to come from a blog post on the official site written by “Scottzoback” which is obviously not the candidate himself.  Of course the statement is written in the first person but who’s to say where it really came from?

Last night, Rep. Jim McGovern (D) debated Marty Lamb (R) and in the middle of it he says this, which according to Real Clear Politics was in response to a question about Citizen’s United:

We have a lousy Supreme Court decision that has opened the floodgates, and so we have to deal within the realm of constitutionality. And a lot of the campaign finance bills that we have passed have been declared unconstitutional by the Supreme Court. I think the Constitution is wrong. I don’t think that money is the same thing as human beings[.]

(emphasis added.)  In the video, you can also hear him say after that he doesn’t believe that money is speech, and that corporations should not have the same right to speak as people.  Now Jim Geraghty is absolutely right to say it is not as per se bad as Phil Hare saying famously he doesn’t care about the constitution.  This is because congresspersons take an oath to uphold the constitution, even if they disagree with it.  So when Hare says he doesn’t care about it, he is saying he doesn’t care about keeping that oath.

But what McGovern said was still pretty bad, because he is not merely disagreeing in general, but specifically about the freedom of expression.  Freedom of expression goes directly to the heart of whether this is a republic or not.  A nation that has no freedom of expression is not a republic or a democracy, even if you have the right to vote.  I mean the syllogism is pretty direct.  The right to make a choice implies the right to make an informed choice.  The right to make an informed choice requires me to hear lots of information regarding that choice.  That means in terms of speech, that people and yes, even corporations, must feel free to express themselves so that you can get the maximum amount of information about that choice, so you can make an informed choice.  Thus the right to choose between two candidates is meaningless without the right to speak freely about them.

So disagreeing with the constitution is not per se bad, but disagreeing with free expression is.  Put simply, the right to debate should not be up for debate.

Now part of the problem, I think, is the fact that we talk about this in terms of speech.  I have long said that when we talk about advertising, making movies, etc. that speech is the wrong word.  One can easily understand why people think of a movie, or an ad in terms of speech.  After all, they generally involve someone, well… speaking.

But if you go back to 1789, freedom of speech wasn’t about “moving pictures.”  No, in 1789, when this nation was founded, free speech was just about how loud you could shout.  This was self-limiting and cost-free.  Now today you can whisper and still be heard all around the world, but it costs money to do so.

But there was a form of expression that could just as easily travel the globe, and that required money, and often the cooperative efforts of many people to make it happen: the press.  Now if we think about this as really press (that is, the process of creating messages to be transmitted far and wide), it is much easier to understand the decisions in Citizen’s United.  Even a lone pamphleteer, like Thomas Paine writing Common Sense at the very least needs money.  Ink and paper costs money, as does the pressing machine itself and the materials needed to make the plates.  It is easy to understand that if the British banned him from spending money to express himself, it functionally vitiates his freedom of expression.  And of course when you think of newspapers and the like, it is quickly obvious why it is important to allow people to retain freedom of the press, even when they associate themselves in the form of a corporation.

As pointed out in oral argument, in Citizen’s United, the McCain-Feingold legislation would ban even a corporation from putting out a book.  Can you think of the last time you read a book that wasn’t published by a corporation?

Nor can it be said that we can limit the press clause to the institutional press only.  Thomas Paine was not part of the institutional press, and I am pretty sure that when the founders wrote the press clause, they were thinking of him, at least in part.

Now is that a per se disqualification for public office?  Well, hell, I voted for McCain, and he sponsored that monstrosity of a law in the first place.  So the answer is no.  Now, it helped to know McCain’s opponent was just as bad as him on the subject of free expression, if not worse.  And it also helped that I predicted how bad Obama would be.  Okay, that is not strictly correct; in my wildest dreams I never thought he would be this bad.  But I predicted it would be bad enough that I held my nose and voted for McCain.  But unless this Lamb guy would be an “Obama level” disaster, this would disqualify McGovern in my mind.

And there is one other thing troubling about his point of view.  He seems to equate the constitution as strictly what the supreme court says about it.  This is wrong, indeed a slavish point of view unfit for free men and women.  For those who say that, ask yourself two questions.  First, if that is what you believe, how can you ever say the supreme court has gotten the constitution wrong?  I mean the same people who say this often bemoan instances of conservative activism—but if the constitution is what they say it is, then how can you get mad at them?  Second, you are then defacto granting the supreme court ultimate power.  In theory, the supreme court could rule that one virgin shall be sacrificed every month on their courthouse steps and we would be powerless to stop them.  Indeed, they could in theory overrule the part of the constitution allowing for amendment, and write out of their jurisprudence every limitation on judicial power.  And saying that they are unlikely to do so is not a sufficient argument.  Our constitution does not grant anyone unlimited power in the hopes that they will not exercise it.

Update: Geraghty also quotes a claim by McGovern that he really meant the supreme court, and not the constitution.  Color me skeptical, but it would certainly be interesting that when he wanted to say “supreme court” it slipped out as “constitution.”  To many people, especially on the left, the two are synonymous.