AMPONTAN

Japan from the inside out

Free free speech

Posted by ampontan on Sunday, January 31, 2010

“Freedom of assembly and association as well as speech, press, and all other forms of expression are guaranteed.”
Article 21, the Japanese Constitution

NOW THAT they’ve been caught with their pants down yet again, the Democratic Party of Japan is proposing to further trash Article 21 by banning corporate political contributions altogether.

That this is a pointless exercise is demonstrated by Prime Minister Hatoyama Yukio’s own fund-raising strategies. His entire political career has been bankrolled by an individual–his fabulously wealthy mother. He was also probably the one—notwithstanding his shifting of the blame and the legal responsibility to his aides—who managed to disguise, until recently, the source of those funds.

What’s the next bright idea? Banning contributions from dead people?

The reaction of the country’s political class to the funding scandals of the 1990s was to raid the public till to bankroll the parties, defined as groups with five seats in the Diet. The amount of funding corresponds to the number of seats each party holds. Putting aside the problems of numerically defining a political party and the serious obstacles this erects to the growth of new parties—which just by coincidence solidifies the dominant position of the big boys and other incumbents—this is also a clear violation of the right to free speech.

That right is not limited to allowing the expression of unpopular ideas. It also includes preventing the government from forcing people to dress alike, march to a nearby stadium, and sing hymns written by the Propaganda Ministry to the Dear Leader, if they happen to think the Dear Leader and everything he stands for is the political equivalent of leprosy. In other words, free speech also includes the right to remain silent.

But the proposed political funding law means that Japanese taxpayers (including me) are forced to subsidize, and thereby promote, the speech of people and ideas they dislike. This isn’t just a personal issue. Of course I abhor the idea that the government is rifling through my wallet to take the money I earned through honest labor to pay for the political activities of people like Social Democrat Fukushima Mizuho. But it also means that the government picks the pocket of teachers’ union apparatchiks to facilitate the political speech of those who think teachers should be required to sing the national anthem at school assemblies.

Forcing everyone to equally support everyone else doesn’t make it fair; it just means that everyone’s right to free speech is equally violated.

The case that limiting political contributions also limits free speech has become a point of discussion recently in the United States with the recent Supreme Court Decision striking down McCain-Feingold. As (Canadian) David Warren explains:

(T)he U.S. Supreme Court ruled last week that the First Amendment, which guarantees free speech, trumps the McCain-Feingold campaign finance act of 2002, and any other attempt to restrict election spending by “corporate persons” (in the broad sense that includes unions and any other formal organization). As Justice Anthony Kennedy explained in the majority decision, “The government may regulate corporate speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”

The majority also homed in on this crucial point: that bureaucratic regulation of speech constitutes a de facto prior restraint…

Mr. Warren gets to the heart of the matter here:

(The) Nanny (state) audits political spending through an immense bureaucracy, which has the effect of reversing power relations between the “wise” political parties and those crazy voters.

Is this the argument for campaign spending controls? I think it is the real argument, but it is not the argument commonly offered. The “official” argument is that, sans Big Nanny, those big corporate interests on Bay Street or wherever would “buy” the elections.

This premise, in turn, is even more insulting to the electorate. It holds that we can be bought, as easily as politicians. The insult is also quite unfair. Canadians, as all other electors, have a human tendency to resent obvious attempts to buy them, and to express that resentment through the secret ballot.

He also offers a suggestion as to the real reason some politicos detest the Supreme Court ruling:

(T)he chief (ramification) is that the decision attacks the contemporary lobbying system. In effect, those advancing special interests are condemned to lobbying the entire electorate, instead of just lobbying the politicians behind closed doors. This directly undermines the political class. It goes to the heart of their ability to broker deals not in the public interest, and pass them into law without public debate.

Translated into Japanese, of course the connections between large construction companies and the likes of DPJ Secretary-General Ozawa Ichiro are squalid and detestable. The solution, however, is not to prevent the companies from contributing to his campaign war chest. Rather, force the disclosure of any and all contributions of big business, big labor, and big religion to the politicians and let the electorate draw its own conclusions.

If you think the electorate is incapable of drawing its own conclusions, take another look at the polling trends for the DPJ-led government since it assumed office. There are also dozens of similar examples in recent years at the sub-national level.

Taken to its logical extreme, this attempt to limit political contributions is an expression of the political class’s contempt for the voters, whom they treat as children unable to make the informed decisions only they are capable of. They’re going to cook the law books anyway with recipes that enable them to finance their campaigns by hook or by crook–mostly by the latter. They’re also going to compound the problem by making the public pay for whatever it is they decide to do, including taking three-day junkets to European capitals on fact-finding missions that could just as easily be accomplished through meetings with officials at Tokyo embassies. (Exhibit A: Kan Naoto’s trip to London last spring. Exhibit B: The smartly dressed Fukushima Mizuho’s recent trip to Paris)

It is an attitude profoundly antithetical to liberty. Take the shackles off, free free speech, and let the chips fall where they may. I trust the people to make the right decision more often than not.

Why don’t the politicians?

UPDATE:

Lest you think I exaggerate about how politicians view the public, not two hours after I put up this post, I ran across this comment from Financial Services Minister Kamei Shizuka on television today:

“Substantial numbers of the people now lack the ability to make dispassionate judgments from their cerebral cortex.”

He was defending Ozawa Ichiro.

5 Responses to “Free free speech”

  1. Joe Jones said

    the Democratic Party of Japan is proposing to further trash Article 21 by banning corporate political contributions altogether

    They can’t do that without revising the constitution, since Japan has the same corporate speech jurisprudence as the US. See this recent post.

  2. ampontan said

    Thanks for the link, JJ

    But they can do it without revising the Constitution, as long as no one complains. As you saw, I think using public funds to financially support political parties is also a violation of free speech that doesn’t require a lot of time to explain, but they got away with it.

  3. Ecoutez said

    I think using public funds to financially support political parties is also a violation of free speech that doesn’t require a lot of time to explain, but they got away with it.

    I agree, Ampontan. But how do you square this with the fact that corporations are creations of the government which would not exist without a costly regulatory apparatus – i.e., the judicial system and various statutory regulations which enforce contracts? Corporations would not be able to accumulate the high levels of wealth and capital – some of which they will spend on speech – without the benefit of the government’s legal protection of what is, after all, a fundamentally artificial form.

    Add to that the fact that the broadcast system, over which most political advertisements will be delivered, relies heavily on public-funded infrastructure.

    Doesn’t this give corporations an unfair advantage at the expense of the people?

  4. ampontan said

    I don’t think corporations aren’t creations of the government. They’re voluntary associations of people with legal protection. People have been forming proto-corporations before they had legal protection.

    Not to get into a dueling website link thing, but this sums it up for me:

    http://www.cato-at-liberty.org/2010/02/02/when-individuals-form-corporations-they-dont-lose-their-rights/

    “Unfair” advantages always exist. Advocate A may have a better argument than Advocate B, but he’ll win if Advocate B is better looking and more charming.

    For example, most people who listened to the Kennedy-Nixon debates on radio rather than TV thought Nixon won.

  5. Ecoutez said

    I’ve encountered the Cato-Libertarian view on this matter before. It is perhaps best encapsulated by this brief quote, from Volokh as linked from your Cato article:

    If the federal government passed a statute abolishing corporate status tomorrow, most actual corporations would still exist and still continue to engage in the same business or nonprofit activities. They just would do so under different and perhaps less efficient legal rules (maybe as LLCs, partnerships, or sole proprietorships). But they wouldn’t all just collapse or go away. There would still be a demand for most of the products produced by corporations.

    (Italics mine).

    Often unappreciated point: this is the understatement of the century. Total nonsense, in fact. Sure, people have a right to associate and form whatever little cadres they may choose. But who will enforce their agreements as legally binding contracts?

    Without a substantial level of support, the ridiculously complex, high-stakes contractual agreements that make it possible for big corporations to become BIG would simply not be possible.

    Another oft-unappreciated point: The “Laissez-faire” era in the United States (late 1880s thru the 1930s) was a direct result of growth in state government, as states completed to provide the most accommodating corporate laws and thereby reap the benefits in revenue. Why growth? Recognizing a greater variety and greater complexity of contracts requires more litigation, and more support from statutory law.

    Without that state support, business arrangements remain fairly small and humble. A contract that cannot be litigated when it is violated is, by definition, not a contract. Corporations are contractual entities.

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