To defend the Buckley Court’s position that money literally “talks,” Justice Brennan compared a political campaign to an automobile and campaign spending to the gas in the tank. Because a candidate’s campaign can travel only as far as the cash in its tank will take it, Justice Brennan reasoned that campaign spending is so integrally related to campaign speech that it must receive identical First Amendment protection. But an election is not a drive in the country. It’s a race. Who’d bother to get excited about a race that depended on which pit crew had more gas? Moreover, education is also crucial to being able to speak effectively, as is access to mass media, but no one argues, alas, that poor people have a First Amendment right to an adequate education or access to the mass media.
Justice Stevens, who didn’t participate in Buckley, never accepted the Court’s decision to treat money as pure speech. Despite his repeated protests, however, the flawed analysis that equates the unlimited spending of money with pure speech has been cemented into Supreme Court precedent, making it all but impossible to stem the tide of big money engulfing our democracy.
Second, the Buckley Court held that preventing massive wealth-driven electoral inequality is not a “compelling governmental interest” that would justify placing reasonable limits on runaway campaign spending by the superrich. Defenders of campaign finance reform had argued that even if spending money is equated with pure speech, maintaining a modicum of political equality between the 1 percent and the rest of us is a sufficiently important interest to qualify as “compelling,” even under First Amendment strict scrutiny. The Supreme Court has never confronted that argument head-on. Instead, the majority has argued that limiting the electoral spending of the superrich is not the “least drastic means” of dealing with economically driven political inequality. Subsidizing the weak speaker, reasons the Court’s majority, is a less drastic way to advance political equality. But in a move that smacks of hypocrisy, the five Republican justices then ruled that public campaign subsidies cannot be “matched” to the spending of a privately funded candidate because that would “penalize” the private candidate for exercising his First Amendment right to raise and spend unlimited amounts of money. Why it is an unconstitutional “penalty” to make a wealthy candidate operate on a level electoral playing field is another secret known only to the five Republican members of the Supreme Court.
How can it be that protection of the two major parties from competition justifies laws preventing minor parties from cross-endorsing a major party candidate or from inviting members of the major parties to vote in the minor parties’ primaries, but laws seeking to preserve a modicum of political equality between the massively wealthy and the rest of us are unconstitutional?
Even worse, the Court ruled that spending (or, as the Court puts it, expending) money, either as a candidate or as an “independent” supporter or opponent of a candidate, is a “direct” exercise of “pure speech” that is entitled to the highest level of First Amendment protection, but contributing money to a candidate is an “indirect” form of speech, entitled to slightly less First Amendment protection.
Building on that paper-thin distinction, the Court ruled that preventing actual or apparent electoral “corruption” is a compelling governmental interest that justifies limiting the size and source of campaign contributions (viewed as a less protected indirect form of speech), but does not justify limiting campaign expenditures (viewed as direct “pure speech”) by candidates or by independent wealthy supporters or opponents. The Court defended this razor-thin distinction by arguing that a contribution is usually preceded by contact between the candidate and the prospective donor, creating fertile ground for corrupt quid pro quo deals, whereas independent expenditures usually take place without any contact between the candidate and the supporter. The absence of prior contact, argues the Court, insulates such expenditures, no matter how large, from the risk of corruption. In the only field, though, the justices really know anything about—judging—the Court recognizes that when a litigant independently expends millions of dollars to get a judge elected, the judge cannot sit on the litigant’s case because a grateful judge might tilt, even subconsciously, in favor of his massive benefactor.49 Why a similar risk does not infect grateful legislators, mayors, or presidents is yet another secret known only to a majority of the justices.
By treating independent campaign expenditures much more favorably than campaign contributions to a candidate, the Court undermined the ability of candidates (and political parties) to define their own political agendas, licensing “independent” ideological outriders to spend unlimited funds to dominate the electoral agenda, while candidates must struggle to raise tightly regulated contributions. In the end, therefore, the Buckley Court upheld limits on the size of campaign contributions, upheld the discriminatory presidential public financing scheme, but struck down Congress’s effort to place ceilings on electoral spending by candidates and independent players supporting or opposing the candidate. The decision left us with a judge-made campaign finance system that turns American democracy over to ideologues in the top 1 percent of the economic tree, a system that no legislator has ever supported and one that would astound the Founders.
Over the next thirty-eight years, the Court’s Republican majority repeatedly doubled down on each of the four mistakes, leaving us today with a campaign financing system that can be described only as grotesque. Candidates are trapped in a financial arms race, unable to stop raising campaign money because they fear being outspent by an opponent, but they’re forced to raise the desperately needed money in dribs and drabs from contributors subject to a statutory maximum of $5,200 per candidate. In the campaign finance world the Supreme Court has made, ideological outriders unconnected to the campaign exercise disproportionate influence because they are constitutionally guaranteed the right to raise and spend as much money as they wish. The unending search for high-dollar “independent” supporters has shifted the balance of power from the candidates to wealthy outsiders who police the candidate’s views by not so subtly threatening to turn off the money machine. And into that already deeply dysfunctional world, the five Republican justices have now parachuted the vast trove of corporate wealth, vesting massive for-profit corporations with the free-speech right to spend unlimited campaign funds on the eve of an election, as long as the spending is “independent” of the candidate’s campaign.50
Tell the truth. If you tried, could you have come up with a worse way to structure and finance our democracy? If the answer is yes, you may be a candidate for the next Republican Supreme Court vacancy.
A SNAPSHOT OF OUR DYSFUNCTIONAL DEMOCRACY IN ACTION
The first decade of the twenty-first century opened and closed with three bitterly contested Supreme Court decisions that illustrate the limits of grounding constitutional protection of American democracy solely on the Equal Protection Clause of the Fourteenth Amendment rather than Madison’s democracy-friendly First Amendment. In Bush v. Gore, five Republican justices awarded the 2000 presidential election to the Republican candidate, George W. Bush, by declining to permit Florida to complete a recount of disputed presidential ballots ordered by the Supreme Court of Florida. The Republican justices claimed to fear that continuation of the court-ordered recount would delay the state’s formal certification of Florida’s Electoral College winners beyond a “safe harbor” date insulating timely state certifications from congressional challenge. Had the Florida recount continued past the “safe harbor” date, and had Al Gore been declared the winner, the fear was that the Republican-controlled state legislature would have designated its own slate of Bush electors, forcing Congress to choose between conflicting judicial and legislative slates.51
In Crawford v. Marion County in 2006, six Justices upheld an Indiana voter ID law ostensibly aimed at preventing voter fraud despite a showing that the photo-ID requirement would disproportionately disenfranchise poor, unsophisticated voters, and that no case of fraudulent identity had ever been reported in an Indi
ana election.52
And in Citizens United v. FEC in 2010, five Republican Justices ruled that for-profit corporations enjoy a First Amendment right to spend unlimited sums to affect an election, reinforcing the stranglehold on the democratic process that the Court had already given to the superrich in Buckley.
Critics have launched powerful critiques of all three cases. Many have noted the artificially rigid equality analysis in the Bush v. Gore majority opinion, which destroyed a presidential election in order to save it, and the majority’s radical departure from traditional federalism principles in depriving Florida of the final decision about whether to take the risks inherent in continuing its court-ordered recount beyond the “safe harbor” date. Others have noted the toothless standard of review in Crawford in an area where precedent—and respect for Madison’s music—seemed to require a much more searching review of Indiana’s justification for imposing yet another disproportionate burden on the poor’s right to vote. If possible, Citizens United is even more vulnerable to doctrinal critique.
Justice Kennedy, writing for five justices, assumes that seven isolated and truncated words in the Free Speech clause, “Congress shall make no law abridging speech,” provide the only relevant legal guidance. He then begs the central question in the case by asserting that the case involves the constitutionality of discriminating between two similarly situated categories of speakers—corporate speakers and individual speakers. Experience teaches that discrimination between similarly situated speakers is often motivated by hostility toward the disfavored speaker, so Justice Kennedy was surely correct in recognizing that courts are justifiably suspicious about government regulations treating First Amendment speakers differently. But the threshold issue in Citizens United was whether corporations (especially huge for-profit corporations) and human beings are “similarly situated” First Amendment speakers in the first place. The favored status of the for-profit business corporation—an artificial state-created legal fiction vested with unlimited life, entity shielding, limited shareholder liability, negotiable shares, and highly favorable rules encouraging the acquisition, accumulation, and retention of other people’s money—raises important questions about whether corporate and noncorporate speakers really are “similarly situated.”
Justice Kennedy’s opinion in Citizens United simply begs that crucial question. He ignores the fact that more than a century ago, the Court ruled that for-profit business corporations fall outside the protection of the Fifth Amendment’s right to remain silent because corporations lack the attributes of human dignity that underlie the privilege against self-incrimination.53 That’s still the law.54 Justice Kennedy himself has ruled that big corporations can’t take the Fifth. Where huge for-profit corporations are concerned, why should the First Amendment’s Free Speech clause be read so differently from the Fifth Amendment’s right to remain silent?55
It is no answer to point to the Court’s nineteenth-century decision to treat corporations as legal “persons” for the purposes of constitutional protection under the Due Process and Equal Protection clauses of the Fourteenth Amendment. Since we invented the for-profit business corporation to unleash its economic potential, it makes good sense to hold that the investors in a corporate enterprise enjoy corporate constitutional protection against irrational or discriminatory economic regulation of the enterprise. It is, however, a huge and unsupported jump to vest for-profit corporations with noneconomic constitutional protections that flow from respect for human dignity—like free speech, religious conscience, or the right to remain silent. A robot has no soul. Neither does a for-profit business corporation. Vesting either with constitutional rights premised on human dignity is legal fiction run amok. Corporations can prey, but they can’t pray.
Nor is it persuasive to argue that because for-profit press corporations like the New York Times and the components of Rupert Murdoch’s press empire enjoy First Amendment protection, for-profit corporations having nothing to do with the press must also be vested with First Amendment rights to spend unlimited sums on electoral speech. When it comes to spending corporate treasury funds for electoral speech, press corporations are treated just like any other corporation. Congress has forbidden them from doing it. Press corporations receive favored First Amendment protection only for their press activities. The unique constitutional protection afforded to the business of the press—it’s the only business mentioned in the Constitution—flows from Madison’s insertion of a separate Free Press Clause into the First Amendment. Madison recognized that free speech in a robust democracy requires an institution devoted to its widespread dissemination. That institution is the press. Respect for the structure of Madison’s First Amendment renders it impossible, therefore, to transpose the instrumental protection of the press into a general protection of speech by huge profit-making corporations having nothing to do with the business of disseminating speech to mass audiences.
Nor is commercial speech by corporations a persuasive analogy. The fact that the Supreme Court has recognized a limited First Amendment right to commercial speech not only fails to support a general right of corporate electoral free speech; it cuts strongly against recognizing such a right. Precisely because business corporations lack the dignitary status needed to justify a constitutional right to free expression, the Supreme Court has recognized that commercial free-speech rights belong not to the advertiser speakers but to the consumers, the hearers, enabling them to receive information needed to make rational market choices. Consumer-centered commercial free-speech protection is confined to speech that actually helps consumers to make rational market choices, so commercial speech may be regulated in ways that would never be permitted in the first-class political-speech compartment—most important, on grounds of truth or falsity, and to prevent harm to consumers and the market.56
Finally, the fact that grassroots political groups organized as nonprofit corporations enjoy free-speech rights says nothing about whether huge, multishareholder for-profit corporations should be treated the same way. Grassroots nonprofits are relatively small groups of flesh and blood persons who have associated in corporate form to advance a political idea. Because all members of the group share a common interest in pursuing a defined political goal, allowing the nonprofit corporation to speak for them is a far cry from letting Citibank’s managers decide which candidate Citibank’s shareholders, depositors, and employees should support in a particular election.57 Justice Kennedy seems to have been clearly wrong, therefore, in assuming that corporations and human beings are “similarly situated” speakers.
Justice Kennedy rejected the argument that letting corporations throw a ton of money on the electoral scales would give them excessive influence over the grateful winner, noting that the Court has consistently ruled (incorrectly, I believe) that independent expenditures on behalf of a candidate do not pose a risk of corruption because no communication between candidate and supporter occurs prior to the expenditure. Never mind what happens after the election when the successful candidate is deeply beholden to his financial angel. Never mind that when elected judges are concerned, Justice Kennedy himself recognizes an unacceptable risk of bias.
While it is tempting to continue to pound on the three cases’ doctrinal shortcomings, critics like me can never prove that, viewed solely as equality cases, they were wrongly decided. In Bush v. Gore, seven justices, including Souter and Breyer, were persuaded that unconstitutionally unequal criteria were being applied in different Florida counties in connection with the recount of the contested presidential ballots. They disagreed only with the five-justice majority’s decision to prevent Florida from continuing the recount beyond the safe-harbor deadline under corrected, uniform criteria. Even the intensely political decision by five Republican justices to end the Florida recount, while deeply problematic as a matter of federalism and disastrous as a matter of democracy, was ostensibly based on a fear that unless Florida acted immediately to certify a winner, the congressional safe-harbor period designed to
insulate state presidential electoral results from congressional challenge would expire, possibly setting off a congressional free-for-all that might have resulted in disenfranchising the entire state, as well as destabilizing the American presidency in a world dependent on the anchor of American power.
In Crawford, six justices held that preventive antifraud protections like photo IDs for voters are constitutional even though they fall with disproportionate severity on the poor and were not shown to be necessary to deal with an existing problem. I think that the Court applied an unduly weak standard of review in Crawford (much weaker than the standard used to test the Florida recount in Bush v. Gore, and much weaker than the standard envisioned by Justice Brennan), but that’s a risk you take when you invoke the notoriously unstable Equal Protection Clause and require proof of an impermissible purpose.
Finally, in Citizens United, longtime First Amendment stalwarts including the ACLU have applauded Justice Kennedy’s opinion as a great victory for free speech because it resulted in a net increase in the amount of speech in circulation.
Thus while I believe passionately that all three cases got the legal doctrine wrong, I cannot deny that reasonable people with different values might disagree. There is, however, a level of critique applicable not only to Bush v. Gore, Crawford, and Citizens United, but to the full range of judicial decisions that have shaped the contours of American democracy for the past half century—a critique based on Madison’s democracy-friendly First Amendment. As the heated exchange between Chief Justice Roberts and Justice Breyer in McCutcheon, the case invalidating aggregate limits on massive campaign contributions, demonstrates, under current constitutional ground rules American judges confronted with a case having significant implications for the functioning of American democracy are not required—indeed, they may not even be permitted—to ask whether the outcome is good or bad for democracy. Rather, at least since Justice Brennan’s fateful strategic decision not to confront Felix Frankfurter directly in the “one person, one vote” cases, American judges are expected to resolve democracy cases by pigeonholing them into one or another formal legal category, such as Equal Protection, Free Speech, or Freedom of Association, having nothing intrinsic to do with the quality of democracy. The fact is that for more than fifty years Supreme Court justices operating inside doctrinal silos have shaped the quality of American democracy without once asking what kind of democracy they were building. The result has been and is an accidental, highly dysfunctional political system cobbled together by judges wearing blinders. American democracy has become that accidental house I mentioned earlier, an M.C. Escher nightmare of illusory passages and stairways to nowhere. It is long past time to bring concern over the quality of our democracy back into the judicial equation.
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