Wednesday, April 23, 2008

Bad Supreme Analogy

From an article in April 23rd's USA Today (p. 4A), by Joan Biskupic ("Justices Split Over Campaign Financing"), I learned that Justices Scalia, Kennedy, and Alito "were the most critical of the provision" that limits what House-of-Representatives candidates may contribute to their campaigns from their personal piles of money. Apparently the provision is about to kick in--unless the Supremes kick it out.

I have a friend and colleague whose chief research- and teaching-field is Constitutional law, but I see no reason to consult him or anyone else before offering my own analysis and thereby exposing how little I know on the subject. That would be too easy. I find it's better to blog first and seek information later. Call it lazy, call it crazy, call it ill-advised, or call it post-modern--it's still the bad way I intend to proceed today.

According to Biskupic, "Scalia derided the idea that government should level the field in any way: 'What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth or what?'"

Ah, the speech of scholars. I feel safer with such minds sitting on the Court, or with such a Court sitting on its minds.

Scalia's analogy is between money spent to buy television-advertisements, the main weapon in modern political campaigns, and pebbles in "his" (a candidate's) mouth. I enjoy Scalia's assumption that the candidate will be male.

I hope the lawyer he was deriding asked Scalia, "But what if the more eloquent candidate is out-spent by the less eloquent but vastly more wealthy candidate to such a degree that she or he cannot get the eloquent message out to citizens?" In other words, I believe Scalia's analogy is faulty in its comparison of something that might personally stifle a candidate (pebbles in the mouth) and the one external, impersonal thing that buys candidates' access to a crucial mass medium (television): money.

"Leveling the field," to use the worn analogy that appears in the article, would indeed insure that such capacities as eloquence, intelligence, and experience are visible to interested citizens, with regard to all candidates. Moreover, if one candidate is able grossly to out-spend the other, then the outspending has become the equivalent of pebbles in the other candidate's mouth. For example, if I were a candidate and were able to buy 100 TV ads to my opponent's 1, then in what sense would my personal pile of money not be a silencing, "chilling," or pebbling factor in the campaign?

Social Darwinists might argue that if candidate A earned his or her pile of money fair and square, then he or she was obviously and naturally selected in this "free-market" economy and deserves the fruits of such social adaptation. This argument places the money-making "trait" at the top of a list of priorities. But should it be at the top of a list of priorities for someone running for Congress? Also, what if the money is merely inherited? From a social-Darwinian perpsective, the person with the money that he or she did not earn is being "privileged," then, not because of personal strength or adaptability but solely because of the luck of the draw. If most Congressional races were between candidates with inherited wealth, would that be a good thing? I suspect some Republicans and Democrats would argue, "Yes." I think some members of both parties favor an oligarchic form of government.

But what do I know? I have pebbles in my blog.
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