One of the recent most important Supreme Court decisions was Citizens United v. FEC. The country's youth, the Loser Generation, are disproportionately being affected by this recession. If they want to understand why they'll have less power and control of their lives than their predecessors they must understand the ramifications of Citizens United on future elections. First
things first, some background is needed. The following is from a February 3rd article
on ‘The Moderate Voice’:
“The
original Federal Election Campaign Act in 1971 along with its subsequent
amendments produced guidelines with the objective of legally limiting campaign
contributions. As ways to evade these regulations were found, a further attempt
to control runaway contributions, the Bipartisan Campaign Reform Act of 2002
(McCain-Feingold) was enacted. This was subsequently emasculated by the Supreme
Court in the Citizens United decision two years ago.
“The
impotence of the F.E.C. and indeed any government agency to limit campaign
contributions has become more evident (and tragic) since the Citizens United
ruling. Special interest money has been surging into so-called Super-PACs and
independent organizations, some of them masquerading as social welfare
advocates, to run attack ads against political opponents. The Supreme Court
held that unlimited contributions by corporations and unions, as well as
wealthy individuals, to these so-called “independent” organizations are
permissible, based on the concept that political spending was a form of free
speech. The use of 501(c)(4) non-profit affiliates by these organizations
allows some donors to remain anonymous while they covertly influence elections
with vast amounts of money. In those SuperPACs where donors are revealed
periodically, it is often after the election has taken place, so that voters
are not aware of where the money in support of a candidate came from.”
A
decade ago, long before Citizen’s United
had even been imagined, First Amendment scholar Martin Redish suggested in Money Talks that “Because money talks,
there are many who wish to silence it.” Furthermore “To restrict the expressive
use of money, or the use of expression for the purpose of making money,
dramatically reduces the flow of information and opinions that form the
lifeblood of democracy. Hence, such restriction contravenes core values served
by the First Amendment’s guarantee of free expression.”[1]
Let’s examine this argument, a sort of backbone for those who would ensure
money stays fixed in politics.
Let
no one ever try and deceive you by citing the Constitution without quoting its
actual language. The First Amendment simply states:
“Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.”
So we
have to initially distinguish between Redish’s claim of ‘free expression’ and
the Constitution’s guarantee of free speech. ‘Expression’ is a particularly
vague term, as we all know. I can express myself through my speech or my
actions, through modern dance or whispering to a friend. The First Amendment
does not grant freedom of expression. The word ‘expression’ isn’t used in any
context in the Amendment regarding speech, religion, assembly, press or
petition. I can certainly express myself to a corrupt cop by slipping him a
$20, but that’s not protected by the
constitution. The notion that election money is somehow special or
different from using money in other forms of influence is completely bogus, and
most certainly was not sanctioned in writing by the founding fathers. Money
doesn’t talk, any more than a corporation can talk. Both are powerful tools in
the hands of individuals or groups of individuals, and therefore, as tools, can
be used only to express what those manipulating want them to express.
In
practice ‘expression’ has overrun the original statement. The Supreme Court in
the 1990s cited that burning the American flag is constitutionally protected
under the First Amendment. Yet other attempts to invoke free speech have been
struck down, such as incitement to imminent lawless action, or child
pornography. What, exactly, is meant by ‘free speech’ or ‘freedom of
expression’ these days are an intertwining, and somewhat complex definitions,
fraught with exceptions and non-speech action. This capriciousness is the
grounds upon which scholars such as Redish rest their arguments that spending
money, in any quantity, as a form of expression is therefore acceptable
practice. While it was almost certainly not the intention of the 1787 Constitutional
Convention to create such a right is immaterial. The Constitution is a living
document, as shown by the changing definition of the First Amendment,
Prohibition, and fifteen other Amendments added since its signing. If we do not
want free speech to include spending we are responsible for creating the
pressure that forces government action. There have been many challenges to the
definition so far, and many to come, and as such we must continue to redefine
what free speech means to each passing generation.
Let’s
delve into even deeper history, long before the founding fathers.
My
initial response and reason for writing this was frustration and anger caused
by the gobs of money choking our political process. This spark soon gave out to
research, and nearly every book I read had a chapter titled or directly
referencing plutocracy. ‘Plutocracy’ is a word I’d used often but hadn’t, in my
own mind, distinguished from ‘aristocracy’. The former is government by the
wealthy, and the latter government by the top tier of society. In the days of
titles of nobility such was a crucial distinction, but no longer. A Policy Review article cited in Jonathan
Chait’s The Big Con gives a great
historical eye-opener:
“‘For
example, at the death of Augustus (14 A.D.), the top 1/10,000 of the Roman
Empire’s households received 1 percent of all income. In Mughal India around
1600 A.D., the top 1/10,000 received 5 percent of all income.’…But the numbers
are less astonishing when you compare them to those in the contemporary United
States…As of 2004 the top 1/10,000 Americans earned nearly 3 percent of the
national income…”[2]
In
2012 U.S. household assets total $59 trillion – the top 400 Americans,
according to Forbes, (less than even 1/10,000 which would be 30,000 people) are
responsible for $1.36 trillion or about 4.3% of that. The top 30,000 simply
must now be worth more than 5%. Our income disparity is greater than the Roman
Empire or the ornate decadence built upon India’s caste system in the 16 and
1700s.
Compared
to contemporaries or income disparity is greater than all but one country in
Europe (including Russia), greater than Australia, and even greater than most
of the Asian continent. Not to mention the other assorted countries such as
Ethiopia and Nicaragua we discredit as being ‘developing’. With such an income
disparity, the ability to pay unlimited quantities puts all the power in the
hands of the rich. We can’t compete, in a recession, with $5, $50, and $100
donations if the Koch brothers, two individuals, can give hundreds of millions
to their preferred candidates. If the Citizen’s
United decision stands then a formalized plutocracy is inevitable.
These
past three posts have painted a grim picture. Campaign finance is what determines winners and losers in elections, corporate lobbyists use their purchasing power to control the
dialogue and legislation, and the wealthiest few can now subvert the democratic process to meet
their wants. But I would not have written these as only a public exercise in indignation.
In the next two, and final, installments we’ll look at how all Americans, and
the Loser Generation in particular, can fix the American system.
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