Consequentialist arguments for UC vs FEC?

I get the free speech argument; I just don't think anyone left of center buys it. So let's make some consequentialist arguments. Here are some off the top of my head:

* Limiting a free market results not in no market, but rather a political market. All this does is drive market transactions underground. See Drug War, prostitution, ticket scalping, and college basketball recruiting. If we want more transparency, then we want a less restricted market.

* States that allow unlimited corporate funding of ads like Virginia aren't any more corrupt than those that don't.

Any others?

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I don't get the free speech argument

What is the free speech argument for this decision again? Specifically, what messages were excluded from the marketplace of ideas under McCain-Feingold?

As far as I can tell, neither corporations nor unions speak; HUMANS speak. And every human was allowed to speak under McCain-Feingold. Any human could choose to speak on behalf of a corporation. Or not.

Moreover, ALL markets are "political markets" in the sense that they occur within a specific, socially-constrained contexts. McCain-Feingold created one context; the new Supreme Court decision will yield a different context. Each environment is a social invention.

To be sure, I'm sensitive to the hypocrisy of my own profession here. I'm a lawyer. In court, we have Rules of Evidence. Basically, these are state-sanctioned rules to censor what witnesses may say to jurors. No lawyer in a trial says, "Oh, that's ok, make any claim you like about my client; more speech is always better speech, and the harm of any speech can be cured by still more speech!" Centuries of experience have led the Western legal tradition to the exact opposite conclusion. Indeed, the right to control speech when at trial is deemed an essential tool in protecting the rights of the individual against popular prejudice.

Free speech arguments are especially tricky among libertarians. If the marketplace of ideas is really all that efficient, and if libertarians fare so poorly in the ballot box, what does this say about libertarianism?

What is the free speech

What is the free speech argument for this decision again?

It's funny, because I don't get the opposite argument either. And not in the sense of I disagree with it; I literally don't understand it.

As soon as the decision came out, everyone started arguing about the personhood of corporations. But how is that relevant? Here's the First Amendment:

Congress shall make no law [. . .] abridging the freedom of speech

What does personhood or citizenship have to do with that? And yet suddenly this is what everyone wants to talk about. I really don't get it.

As far as I can tell,

As far as I can tell, neither corporations nor unions speak; HUMANS speak. And every human was allowed to speak under McCain-Feingold. Any human could choose to speak on behalf of a corporation. Or not.

I don't understand. It's been a while since I read up on McCain-Feingold, but didn't it place restrictions on how much money could be donated by any single individual or group for the explicit support of a political candidate, as well as restrictions on the timing of commercials in relation to the date of the election? How are these restrictions not restrictions on speech? Or are you making the true but tautological and empty claim that given any government law, no matter how restrictive or unjustified, we are still "free" in the sense that we can choose to obey the law or face the consequences? "Your money or your life" is not what most people mean by freedom, even if in some obscure sense it is a "choice."

Moreover, ALL markets are "political markets" in the sense that they occur within a specific, socially-constrained contexts. McCain-Feingold created one context; the new Supreme Court decision will yield a different context. Each environment is a social invention.

Again, no disagreement here; I agree with the observation. But the free speech argument is a normative one, of the form: "If you support the concept of free speech, then you should also oppose campaign finance restrictions." So the question boils down to whether or not the concept of free speech is at all connected to the concept of campaign finance restrictions. If we agree that we support the concept of free speech (as many do), and we agree that campaign finance restrictions adversely impact people's ability to communicate important political messages to others, then we need something other than "the law determines the social context" to justify a law which we agree restricts free speech. Is the law justified?

Rules of Evidence, like Rules of Baseball, or Rules of the board game Monopoly, are all sets of rules for a specific purpose. There is no reason to assume that the rules governing what goes on inside a courtroom need be, at risk of hypocrisy, the same as the rules governming what goes on outside a courtroom, just as there is no reason to assume that the rules governing what goes on while playing a friendly game of Telephone need be, at risk of hypocrisy, the same as the rules governing what goes on when not playing the game Telephone. We have good reason to ensure that we understand a speaker clearly, and we ask the speaker to repeat themselves for clarity if we don't initially understand, before we pass on that same message to others. But not while playing the game Telephone, because that ruins the point of the game. And so too, in a courtroom, jurors are barred from hearing certain kinds of information that may bias them. Those are the rules of the courtroom, and there may or may not be good reasons for them, but these need not be the same rules we use to govern all of society. Jurors are considered a tool of the truth finding process, and they are external to the dispute between the litigants. Thus, we are not worried about an abusive authority keeping vital information from them for their sake (although we may worry about the interests of the litigants and the final decision as it is impacted by what the jury may or may not hear), but we do worry about an abusive authority (the Federal Government, and through incorporation, the States) keeping vital information from us, since we are not external to the political process, nor are politicians and bureaucrats external to society.

If the marketplace of ideas is really all that efficient, and if libertarians fare so poorly in the ballot box, what does this say about libertarianism?

This is a good question, one I've pondered a lot and still haven't found a sufficiently satisfying answer to. But, of course, the answer to this question does not impact the best justification for laws like the First Amendment, which in my opinion is the Quis custodiet ipsos custodes? argument. But then, Quis custodiet ipsos custodes? is my favorite answer to every question about politics. :P

If American politics were

If American politics were not insane, then Democrats would celebrate the decision and Republicans would lament. Why? Because the decision concerns McCain-Feingold. As in John McCain. As in the Republican nominee for President. If the Supreme Court struck down a major aspect of a major bit of legislation sponsored by and named after your party's nominee for President, you would be gnashing and wailing. Unless American politics were insane.