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.” 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…”
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.