[Guest post by Aaron Worthing; adapted from a post here]

In other debate news, Rep. Jim McGovern said this little gem in his debate last Wednesday (against Mary Lamb), when asked about Citizen’s United (a decision I talked about previously, here, and many other places):

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.  To be fair to him, he says he misspoke and meant to say the Supreme Court is wrong and not the Constitution.  Its an interesting Freudian slip, but okay.  And even if he meant to say the “Constitution is wrong,” 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.  By comparison even if McGovern really disagreed with the constitution on this point it doesn’t mean he can’t honestly swear to uphold this document, while perhaps working to amend it to correct any errors he sees in it.

But however you interpret what McGovern said, it is was still pretty bad, because he is not merely disagreeing in general with the Supreme Court or the Constituion, 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 Supreme Court, or even 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 fairly easily travel the globe in 1789, and that required money, and often the cooperative efforts of many people to make it happen: the press.  Now if we think about TV ads, movies, etc.,  as really press (that is, the process of creating messages to be transmitted far and wide) rather than speech, it is much easier to understand the decision 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 (and how could he be without Obama-level power?), this would disqualify McGovern in my mind.

[Posted and authored by Aaron Worthing.]