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TechnoratiWhen Money Is Speech, Speech Is No Longer Free
Building atop the rotten foundation it laid three decades ago, the Supreme Court late last month struck down the "millionaire's amendment," a federal law that helped keep congressional elections competitive when a candidate used a personal fortune to fund a campaign. The law could have applied to 28 or more races this year.
The court's ruling in Federal Election Commission v. Davis repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, "Congress shall make no law ... abridging the freedom of speech," to declare that spending money to influence elections is constitutionally protected free speech. Since then, the justices have struck down numerous laws designed to limit the power of money over election outcomes.
What's shocking about the Davis opinion, however, is that the law in question -- the 2002 "millionaire's amendment" to the Bipartisan Campaign Reform Act -- made no attempt to limit spending or communication. To the contrary, that amendment to the bill, known as McCain-Feingold, merely enabled a candidate competing against a free-spending multimillionaire to raise more money. According to the court's previous rulings, this simply enabled more "speech."
The amendment allowed a House candidate whose opponent spent $350,000 or more in personal funds to accept up to three times the current $2,300-per-donor limit (but only until such contributions equaled the self-funding candidate's). Thresholds for U.S. Senate races varied based on state population.
Writing the 5-4 majority opinion, Justice Samuel A. Alito Jr. said, "Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities." The trouble is, those advantages tend to accrue to the same individuals -- not "different candidates."
Justice Alito strangely argued that helping all serious candidates be heard would prevent voters from independently evaluating their choices. He added, "The argument that a candidate's speech may be restricted in order to level electoral opportunity has ominous implications."
What restriction of speech? The amendment's sole effect was to help prevent the candidate with the loudest amplification from drowning out all other voices.
This is not a Republican-Democrat conflict. The 28 candidates spending enough to trigger the amendment this year were split between the dominant parties, though none was an independent or "third party" representative. In Maryland's 1st Congressional District, E.J. Pipkin personally invested more than $1 million in his campaign (he lost the Republican primary in January).
Ironically, the presidential candidate who has abandoned public financing for the general election benefited directly from the amendment in 2004. Sen. Barack Obama was able to raise $3 million more than he otherwise could have in Illinois' Democratic primary for Senate because one of his opponents, Blair Hull, spent nearly $30 million of his own money. It's quite possible the amendment already has changed the course of U.S. history.
The justices' ruling may affect just a few dozen congressional races this year, but Davis is more troubling when viewed in conjunction with the 2006 Randall v. Sorrell decision, which deemed Vermont's limits on campaign contributions and spending unconstitutional.
Each such act by the court diminishes the chance of any citizen winning a seat in Congress without huge sums of money and accelerates the trend toward Congress becoming a rarefied club populated by elites distinctly unrepresentative of our diverse nation.
Not only will Davis impede citizens from learning the views of some worthy candidates, but its language ominously suggests the court may overturn long-standing limits on corporate and union campaign spending. Further, it implicitly attacks the most hopeful avenue for democratizing elections without overturning Buckley: public campaign financing. When the court majority declares easing barriers to competitive elections an unconstitutional "burden" on wealthy candidates, it leaves little space for hope.
With the existing majority likely to dominate the court for a decade or more, reformers must confront a hard truth: The Supreme Court is a barrier to democratic elections and will be for many years. It's time to aim below the beltway -- away from legislative solutions subject to the court's approval and toward building bottom-up support to overrule the court. Ultimately, we need a constitutional amendment to declare that investing cash in candidates is a privilege subject to democratic controls to prevent the buying both of elected offices and political influence -- not free speech as intended by our Bill of Rights.
Jeff Milchen serves on the board of ReclaimDemocracy.org, a nonprofit that advocates for a constitutional amendment to overturn Buckley v. Valeo. His e-mail is info@reclaimdemocracy.org.
Copyright © 2008, The Baltimore Sun
12 Comments so far
Show AllI've said for years that campaign finance laws are unconstitutional, because they allow the paid speech of corporations (entities not recognized by the Constitution) to limit the free speech of people.
NEWS FLASH!
Congress already is "a rarefied club populated by elites distinctly unrepresentative of our diverse nation" and has been for years. Congressional income averages between $168,597 and $214,188 annually; that puts your elected representative in Washington in the economic top 5% of the country.
Government with the rich, by the rich, and for the rich. As far as "your" Government is concerned, the other 95% of Americans can bloody well piss off and die.
Siouxrose,
Hi. I believe socrates 2 was just using "men" in the outdated sense of meaning all people and intended no offense. He probably should update that usage as I know many women are offended by it.
socrates 2,
Great post. It seems the US political/economic system may be optimally designed to weed out the good ("the good" meaning those most likely to contribute to the general welfare and create a harmonious, happy, and healthy, physically and mentally, society).
This furthers the SCOTUS opinion that corporations and the dollar were connected to free speech. That final nail was driven in the 1970's. I am not a lawyer but I do remember the history...
The problem is that how can huge amounts of dollars of influence equal one common vote? Yet this is what it amounts to.
This may prove to be the biggest reason we are where we are today.
Only the Legislative branch can undo it. There are organizations dedicated to undoing it.
SOCRATES 2 said, "We men have many impulses.." Did it occur to you there are women in this forum, or do you think the masculine pronoun somehow embraces the totality of the HUman experience?
Classact, Kivals and most folks commenting on this item are right on. _Buckley v Valeo_ introduced a nasty, regressive (and repressive) bug into our Republic.
Allow me to digress. We men have many impulses. The acquisitive impulse (greed) is one of them. People who do not inherit wealth but who allow this impulse to "overwhelm them" will do what it takes to accumulate capital and wealth.
Individuals with this impulse thus "rise" not merely economically but acquire the wherewithal ("flood speech"/"platform" for speech,) to "rise" _politically_ or to pay for _their friends_ to rise politically.
So, what system will our democratic-Republic evolve into if only the voices (and friends) of those with this particular impulse are allowed to legislate?
You guessed it, a corporate plutocracy, a neo-feudalism where those who are "acquisitive-impulse (greed)-challenged" will remain serfs in perpetuity as will their children's children and so forth.
As in the feudal era, a "commoner" had only three ways to rise in a society where "all the good things had been taken." Via the church (education), via the military and via "service" in the palace to "the crown."
Corrupt feudalism with its Inquisitions, _droit du seigneur_, etc. What a system! What a comeback! And a "legal" one to boot...
The very statist, centralized rule _nightmare_ Madison and Jefferson fretted over and wrote about (and against) was re-introduced via _Buckley v Valeo_ by "Nixon's revenge," the Rehnquist court, and now re-affirmed by their successors, the Reaganoids and Bushoids in black robes. What a world!
I absolutely agree that we _need_ a Constitutional amendment to reverse this ideological shift that takes us back to a Darker Age, an age of greed and entitlement for the wealthy. Now!
Mr. Milchen, where do I sign up?
Good point by ClassAct regarding "Speech is not speech without a platform". Obviously in 1776, the framers of the Constitution could not foresee massive media (TV, Radio, & Newspapers due to consolidation) drowning out all other forms of communications.
Today, for the most part, the speech platforms lie with a handful of companies (GE, NewsCorp, Disney, Clear Channel...). Either you pay them exorbant fees to run ads on their networks or you don't get heard. And in you are in favor of those companies, you get free positive coverage (McCain was never the favorite of the Republican populace, he we essentially elected by the media).
listening to NPR on the way home from hospital the half hour was, my luck, all to due with Bernake and how he insists the Treasury needs another, I forgot, didn't see news, how it was framed, branch beholden to it because it of itself CANNOT remedy decades of irrepairable harm. A person, I presume an informed knowledgeable Economist, are there any other type of Economist, waxed and waned poetic of 'the markets were so very anxious' and how they, the places of money, were rife with fear. It was disturbing, money you whine and weep for?
From the article:
"The amendment's sole effect was to help prevent the candidate with the loudest amplification from drowning out all other voices."
I have said for years that the modern "strict constructionists" on the Supreme Court have somehow found, starting with Buckley v. Valeo, that protecting flood speech (that drowns out the opponents' voices), rather than free speech, was the original intent.
The Republican appointed and conservative anointed Supremes may be the greatest barrier to democracy in their lifetimes. Only We the People can change that:
www.nationalinitiative.us
Speech is not speech without a platform – it is platforms that cost money. Framing the matter as "free speech" loads the issue for an interpretation that favors those who can afford a platform.
Silly reporter, the usa is a plutocracy (rule by the wealthy) not a democracy. Of course speach isn't free, one gets what one pays for after all. An individual might be free to say what he wants, but say the wrong thing and it will cost you your job, or perhaps your freedom.