protected political speech or treason?

AuthorMurray, Rebecca

"Never has the American political process been so corrupt. No office was too high to purchase, no man too pure to bribe, no principle too sacred to destroy, no law too fundamental to break." (2)


    Democracy is a combination of vital principles including the freedoms of speech, religion, and the press; an independent judiciary; economic freedoms; a government with checks and balances; and free elections. (3) Free and equal elections are a fundamental foundation of a healthy democracy. (4) When the election system becomes tainted through fraud or undue influence, the other freedoms enjoyed in a democracy become jeopardized. (5) It is the role of the government to ensure the election process remains free from such corruption in order to maintain the legitimacy and integrity of the system.

    Voter participation is also necessary to maintain the legitimacy and the integrity of the democratic process. (6) It is estimated that over half of the eligible American voting population turned out to cast their vote in the hotly contested 2000 Presidential Election. (7) These numbers are indicative of the apathetic feelings Americans have towards their political process. (8) In a system where the voter feels money from big business and special interest groups heavily influences the choices of political leaders, the needs of the individual citizens can get lost and ignored. (9)

    Through illegal means, the founders of the website (hereinafter "Vote-auction") intend to give control back to the voter. (10) They contend the voter is transformed into a commodity in the electoral system in the United States; bought and sold through advertisement and the media. (11) The designers of the site set out to create a "direct line" from politician to voter, where Voteauction would be the unlawful medium for auctioning off votes for money to the highest bidder. (12)

    The creators of Vote-auction looked to the Internet as a new vehicle with which to give the power back to the voters. (13) The Internet proves to be a difficult medium to regulate for federal and state governments for a variety of reasons including jurisdictional issues, difficulty in applying existing statutes to cyberspace, as well as anonymity of website creators. (14) Despite the complexity, legislators need to take action to address the novel ways crimes can be committed over the Internet. (15) If action is not taken, the Internet has the potential to be a springboard for illegal voting activity, such as the purchase and sale of votes. (16)

    While endeavors to decrease voter apathy and increase voter turnout are usually commended, the Vote-auction site came under much criticism and legal scrutiny from governmental bodies because it violated both federal and state election laws through its facilitation of the sale of votes. (17) State Attorney Generals and local election officials brought legal action against Vote-auction in the city of Chicago, as well as the states of Missouri, Wisconsin, and Massachusetts. (18) The common cause of action in these suits was the website's illegal buying and selling of votes. (19)

    The website's main defense was that the content on the website constituted political free speech, and was therefore protected by the First Amendment to the Constitution of the United States. (20) Voteauction also argued the buying and selling of votes legally occurred throughout the American democratic, yet capitalistic, system on a large scale in every election, and that practice was protected by the Supreme Court's ruling in Buckley v. Valeo. (21)

    While the First Amendment does protect political speech, and the Supreme Court has deemed campaign spending to be constitutional, there are federal and state laws in every state in the nation that specifically prohibit the purchase, sale, or influence of votes. (22) These statutes are in place to ensure and protect free and equal elections. (23) While the Supreme Court decided in Buckley that campaign spending limits were unconstitutional, years later, in Brown v. Hartlage, they differentiated between campaign spending and actual vote purchasing and held states could enact laws proscribing the purchase and sale of votes. (24) In 2000, the Supreme Court upheld a Missouri state law that limited statewide campaign contributions to $1,075 because the potential to buy votes and create undue influence through large contributions outweighed the First Amendment protections. (25)

    Vote-auction is illegal and should be enjoined from operating. While the website may claim the First Amendment protection of political speech, there are federal and state statutes which explicitly prohibit the facilitation of the purchase and sale of votes. The constitutionality of these statutes should be upheld because the government has a legitimate interest in protecting free and equal elections as well as ensuring impartial representation of all people in the political process.


    The concept of buying votes is not new in the United States. (26) While the purchasing of votes is likely to be as old as the institution of voting, it is thought the idea was brought to the United States from England. (27) The English had a process called "treating" where candidates would "treat" the voting public to "food and drink in heroic qualities" to win over their support. (28) Elections became less of a political debate and more of a battle over who could provide the citizens with the most liquor. (29)

    In the United States, George Washington, fondly remembered for his patriotism and honesty, was charged with a version of "campaign spending irregularity." (30) In his 1757 Virginia House of Burgesses race, he purchased rum, beer, and hard cider for those in his district in return for their votes. (31) The practice of outright vote purchasing came about in the late 1830s when $22 was the going rate of an undecided vote in the New York City mayoral election. (32) In the mid-1800s the big city political machines of Chicago and New York City would take care of poor voters by providing them with coal and food in exchange of their votes. (33) As recently as 1996, twenty-one Georgia residents were indicted for attempting to sell their votes in a Democratic primary for $20-$60 a piece. (34)

    The secret ballot process was established to prevent the widespread phenomenon of vote buying which was undermining elections in the United States in the late 1800s. (35) In response to the high costs of purchasing votes, the political parties advocated for a secret ballot system. (36) The secret ballot system served to reduce instances of vote buying because it made it increasingly difficult to verify if candidates were getting the result they purchased. (37)

    Money is an important force that facilitates political campaigns. (38) In the mid-1800s, changes in the nation increased the need for more campaign funds. (39) The population of the country was growing, people were living further apart and the right to vote was no longer limited to white, property owning males. (40) These factors contributed to the need for candidates to raise more money in order to travel across their districts to reach their growing number of potential constituents. (41)

    Candidates needed increased capital, so they turned to businesses to finance their campaigns. (42) The businesses, in turn, expected favors and special protections from the officials whom they helped elect. (43) Even today, many voters are concerned that politicians become the puppets of those businesses that contribute large amounts to candidates' campaigns. (44)

    Money also plays a large role in political elections in the form of advertising. (45) Candidates spend sizeable amounts of money on print and electronic advertisements in order to promote their message to the American public. (46) This, too, is a concern to voters because it would appear that the candidate with the most money to spend on the campaign has the most power to influence and gain votes. (47) In 1976, the Supreme Court ruled on campaign financing, (48) determining that candidates' practices of receiving huge donations and spending large amounts on advertisements were legal under the First Amendment. (49) The Court viewed limits on political donations and spending as invalid restrictions on the First Amendment rights of candidates and citizens to engage in political speech. (50) In contrast, eight years later, the Court made it explicitly clear in Brown that it was within the constitutional right of the federal government and the states to directly prohibit the buying and selling of votes. (51)

    "Logrolling" is the term used to describe when a candidate makes political campaign promises, as opposed to promises to pay money, in exchange for votes. (52) The California Court of Appeals held in Stebbins v. White that a candidate is not within his legal right to promise to perform a valuable service in exchange for a vote when that performance is not connected with the appropriate responsibilities of one who would hold that office. (53) Logrolling is traditionally seen as part of the campaigning process, different from outright bribery. (54) Only once, in People v. Montgomery, has a candidate been prosecuted for logrolling. (55) The exchange, however, was based on personal, as opposed to political benefits that were not customarily a duty the candidate would have performed if elected. (56)


    1. The Creation of Vote-auction

      In the months leading to the 2000 U.S. Presidential Election, graduate student James Baumgartner started the Vote-auction website as the basis of his thesis paper. (57) His purpose for creating the site was to draw attention to flaws in the American electoral system, in which votes appear to be bought and sold on a large scale through campaign fundraising and political advertisements. (58) He argued that one of the main purposes of the website is to enfranchise voters who feel alienated from the political...

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