Benjamin, Aaronson, Edinger & Patanzo, P.A.

Political First Amendment. Put your money where your mouth is.

 We hope all of you had a great holiday season and that 2012 brings you and your loved ones a good year. It almost seems like the world is put on hold from Thanksgiving through January 1st and in some instances it is. But after consuming too many good meals and far too much cookies and cakes, it is time to break those New Year’s resolutions and get back to work as usual.

  In the great spirit of America, however there has been one activity that does not take a break for the holidays and actually seems to gear up around them. Of course, what we are speaking of is the myriad of political events and campaigning. Since in November 2012 we will either reelect Barack Obama or elect a Republican President, the political campaigning in Iowa, New Hampshire, South Carolina and even some in Florida took no break during the holiday season.

 We will make no pretense of where our political leanings are. If you have followed our column over the last decade, it will come as no surprise to you that we are unlikely to vote for a Republican candidate. We have many reasons for this, but our number one reason would be that in our opinion based upon our experiences, the Judges that Republicans appoint to office generally do not tend to side with the First Amendment and rather tend to side with government. Since we have given a great deal of our livelihood and experience to championing the First Amendment, it is only fitting that we would want candidates to be elected that are more likely to appoint Judges that will at least be receptive to our arguments, if not always agreeing.

 Having said that, there is no greater exercise in using the First Amendment and of the First Amendment than is the political campaigning that is going on for the Republican nomination for President. Thousands if not millions of people have donated money to their candidate which in and of itself is a First Amendment exercise. These candidates then produce advertisements which are viewed in newspapers, aired on television and radio or distributed by mail or other means of personal communication. Each and every one of those ads that you read, listen to or are inundated with are examples of the First Amendment in action and have the highest priority of constitutional protection.

 Of course, then there are those endless political debates, which most of the time are boring except when Rick Perry either forgets how to count to three, goes blank or in some way makes you wonder how the people in Texas keep on electing him Governor. During these debates, the candidates are free to express their popular views and their unpopular views. The only thing that holds them back is their fear that being too honest may turn off some voters and calculated strategies by their handlers. No government controls over what they say or do is exacted and in fact this is one of the few times on television that there is no network censorship. Regardless of your political view and regardless of the entertainment value there can be no higher form of exercise of the First Amendment than a political debate, unscripted, unfettered and televised to the masses.

 Then there are the Pacs and Super Pacs which supposedly are none for profit organizations set up to advance a specific political agenda. There is a difference between the Pacs and Super Pacs in that donations to Pacs and who made those donations are reported in public record while donations to Super Pacs, if we understand the process, are anonymous or shielded. Some have said that these Pacs and Super Pacs violate campaign law funding and abuse a fair and free political system, by the fact that through the Super Pacs corporations can donate millions of dollars and thereby promote their agenda.

 Court decisions have so far upheld the validity of this process. Therefore, there will be times you will hear and see ads that are favoring one candidate over another. Yet, that candidate’s campaign committee has not financed the ad and it is being done by a Pac or a Super Pac with no affiliation to that candidate. It does not have to follow the Federal Election laws as far as what candidates may do and how it is funded.  All candidates seem to be beneficiaries of these Pacs and Super Pacs.

 It is believed that certain Republican candidates are the greatest beneficiaries of this system. With corporations and the extremely wealthy traditionally being Republican supporters it makes sense. However, given the secrecy of the Super Pacs, this fact cannot be proven. Even if this is true, is it bad? Arguments can be made pro and con. Certainly, the ability of a few to over influence an election, strikes against the core values of the United States. All men (women) are created equal and should have equal say in its government, allowing the super wealthy and corporations to over influence the system diminishes the equality of us all.

 On the other hand, not allowing someone the freedom to endorse their chosen candidate with all the resources at their disposal, inhibits their ability to speak and take part in the political process to the extent they wish. Does this not run afoul of the First Amendment? Where in the Constitution does it mandate that we all speak with the same loudness or the same amount? The Constitution simply gives us the right to speak.

 The argument against these Pacs and Super Pacs also brings in the practicalities of what we see on a daily basis. Those who donate the most seem to get better access to the elected official and more than coincidentally legislation that seems to favor their agenda. Has the candidate and then if elected the official been bought?

 The other side would argue of course not. If we raise money or donate to a candidate, obviously that candidate shares our views. Therefore, it is only reasonable that laws and legislation that we agree with would be passed by people who agree with us. Isn’t that truly representative democracy?

Yet, with all this money from Pacs and Super Pacs, the great equalizer is you and the modern day communications. Regardless of the monies spent, the candidates record and statements are just a few clicks away. All these monies being raised and spent might be for naught. One public gaffe, one misstatement, one embarrassing fact about the past, becomes viral and no amount of money can put a band-aid on the wound. There is enough unfettered information for the educated voter to make to their choice. Although our political process is certainly not perfect, it is still one that allows for all to be involved, guarantees freedom of speech and press, and is the best that man has yet to devise.

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