So I’m pondering whether we need some tighter regs on political advertising. My fingers are burning as I type that. How can I possibly oppose McCain-Feingold but wonder whether we need tighter regulations on political advertising, you ask? It’s a good question.
McCain-Feingold restricts the ability of citizens, through organizations, to participate in the political process. Period. While supporters say these restrictions are reasonable and necessary to limit the influence of money on politics, money is just as much a part of the process as it was pre-BCRA. If anything, the regulations have enabled more money to go underground and given us less transparency and accountability.
But I digress…
I wonder whether we’re missing the boat. Do we need to regulate the truthfulness of political advertising?
If we rely on the democratic process to choose leaders, root out unpopular policies, and kick the bums out, we need truthful information. RIght? The question, of course, is whether this interest outweighs the liberty interest of free speech.
Currently federal law places no such restrictions on political ads and the law appears to prohibit stations from refusing to air politilcal ads that they deem misleading or false, though in every election we see stations doing just that. If it did, the law would at least discourage-but not eliminate-the type of negative ads we see that are based on distortion of someone’s record and statements.
(By way of background, I’ve relied heavily on this article as I didn’t have time to do anything more than skim the FCC and FEC statutes, cases, and regs.)
We had an okay class discussion about tort reform recently in Torts. (At this point in the semester I think we’re all too exhausted for a heated or animated debate on the topic.)
It amuses me that the words “tort reform” are always put in quotes in our casebook - and even in the way it is mentioned by our professor. As if that’s not really what people mean when they say reform or that they’re just parroting what a lobbyist told them to say.
I have a problem with the change reformers say we need - namely, in its most common expression, that a blanket cap on punitive damages applies to all cases will mitigate whatever negative effects large jury awards have on our economy. This rigidity fails to consider the merits of an individual’s case while, at the same time, negating the role of tort law in discouraging certain corporate and individual malfeasance. It also just feels like - though may not, in fact, be - a thinly veiled handout to bad corporate actors.
Yet, I’m a”tort reform” “supporter” purely because I think the legislature acts well within its authority to ask whether awards are too large and what effect this has on the economy and society. Awards can “shock the conscience” of lawmakers too. Like many things, however, it seems the negative inertia created by opposing lobbies - trial lawyers vs. business - makes it hard to get past the entrenched positions of the two parties.
Nonetheless, based on my extensive two class-meeting consideration of this issue, my initial thought - that I hope we discuss in the comments - is that we should make bad faith a more prominent element in torts cases, particularly strict and product liability cases.
If you’re a Florida (or Michigan) resident suing the Democratic National Committee because their primary rules have disenfranchised you, it might be helpful to allege that you actually voted. From pages 6-7 of today’s 11th Circuit opinion in DiMaio v. DNC (citations omitted):
Notably, DiMaio never alleged that he actually voted, nor even so much as suggested that he intended to vote in the Florida Democratic primary. To the contrary, the complaint simply “posit[ed]” that the DNC “may be violating his rights under Article II and the 14th Amendment of the United States Constitution”; that enforcement of the DNC’s delegate-stripping rules “may or may not violate [his] right to vote in a Presidential primary”; and that, “[i]f the decision of the National Party violates [his] constitutional rights, it would be appropriate for this court to make such a finding.” As if to underscore the conditional nature of his injury, he also alleged that “[i]f the decision of the National Party does not violate the Plaintiff’s constitutional rights, it would be appropriate for this court to make such a finding . . . .”
These allegations, whether standing alone or in concert, do not plead that the plaintiff suffered an injury in fact, the invasion of a legally protected interest that is concrete and particularized” — the first prong of the Lujan test. As a practical matter, DiMaio’s right to vote, protected by the Fourteenth Amendment, cannot be impaired by the DNC’s failure to consider a ballot that he did not cast in the first place.
This week I made a mistake - the second time I’ve made it really.
In a way, we opened this blog to goof off. I wanted to improve my web design skills and write about this all-consuming experience I was having. After putting up version 1.0 of the design, I found friends wanted to join in the fun. When things around here got serious, our goal was to focus on our law school experience with a hefty dose of sarcasm, snark, and tomfoolery. By and large, we’ve slowly begun to figure out how that works. And we’ll continue to do so.
But we had a relapse in two recent posts (Gong Show and Second Amendment). While I think what we’ve written is good, it’s not new or original or law-related or funny or entertaining or insightful - all qualities we hope define our writing here. For a blogger, politics is like crack or junk food - something eaten when hungry or bored or in need of a quick fix and instead of finding a good snack (nice piece of legal news or gossip), you go to the old standby (political screed). Trouble is, we’re not really that good at writing about politics and there are plenty of people much smarter that we are writing about it. To those put off by our political digression this week, we apologize.
Anyway, it’s been a learning experience. When we approach “serious” topics that have political overtones we will try to tackle them from a legal perspective, rather than debate the political calculus. These are the sorts of things I feel like we should be doing. We’ll have more fun this way and we think you will too.
Also, look for some fun new features coming soon to Fight The Hypo - at least a few design tweaks, launch of the shameless commerce division, petitions, and there are rumors that a love and law school column is in the makings.
Dr. Bombay is convinced that I’m going to walk in one day and, much to his delight, burn my Right Wing Conspiracy Membership Card in front of our Torts class. That’s not about to happen, but several beliefs of my conservative brethren do give me pause.
Since BigShow has joined in the fray here at Fight The Hypo and since the Supreme Court is in the middle of considering its first Second Amendment case in decades I thought I’d begin the painful process of revealing my drift from certain tenets of modern conservative orthodoxy (to the extent one can “confess” to something pseudonymously anyway).
Let me start with a gross generalization… why is it that the very people who support limits on First Amendment rights oppose limits on Second Amendment rights? It’s as if some say, “No, you can’t burn that flag, but here’s an AK-47 to protect yourself and, in the meantime, hunt some deer.”
Say what? Hopefully we’ll hear from our Second Amendment friends on this, but hear me out…
[Ed Note: So... in editing and updating this post, I inadvertently deleted it. My apologies. Here' s my best effort at quickly recreating it, with notes on what I've changed/added.]
All that today’s episode of the Gong Show… er, I mean all that the latest Roger Clemens hearing on Capitol Hill is missing is Gene Gene The Dancing Machine. Who knows, maybe he’ll make an appearance too:
So, we’ve tried to not be too critical, but…. this whole thing is a sham.
I know. Hardly an original thought, Mr. Sherpa. You’re right. And while I know this isn’t a political or health or sports blog, I have come to believe three four things about these hearings: Continue reading ‘Congress = Gong Show?’
