Citizens United still comes up in conversations, almost eight years after the Supreme Court decided that restrictions on political donations abridge First Amendment rights. You can say a lot about that decision, or more precisely, about reactions to that decision. Here are two questions that come to mind when we recall the way President Obama scolded the justices seated in front of him at his 2010 State of the Union address, shortly after the court handed down its decision. First, if Democrats oppose the decision on principled grounds, why do they not denounce union donations to political parties, along with corporate donations? Second, why would Democrats want to forego substantial corporate donations to their own party? In the last presidential campaign cycle, their candidate benefited handsomely from corporate donations. Congratulations, and more power to her.
Consider a simple example, not of corporate or union donations, but individual donations to super PACs. If Koch brothers money counts as ‘dark money’ donated by evil people for evil purposes, why does Tom Steyer’s and the Pritzker family’s money count as sunshiny money donated by good people for worthy purposes? All these examples, and others, illustrate that individuals and corporations make contributions to super PACs, which have no limits if they don’t coordinate their activities with campaigns, and to non-profit foundations. Steyer, the Pritzker family, and the Koch brothers all manage their donations so as to avoid campaign finance regulations, as they should. They all believe, correctly, that they can use their money as they like. If they want to use it to promote points of view and candidates they favor, why would we want to stop them?
Because one side is evil and the other side is not? That does not sound right to me. Why would I believe someone is evil because they support positions I do not like? If the Koch brothers switched their allegiance, and gave millions to a Democratic super PAC, and Tom Steyer did the same for the Republicans, whose money would be dark then? Would Democrats decline to accept the Koch brothers’ money? Of course they wouldn’t. They would welcome it, just as Republicans would welcome Tom Steyer’s money. The difference is that Republicans don’t currently denounce Steyer as the Darth Vader of American politics, out to destroy the republic. Well, I suppose Breitbart does.
The Koch brothers support what we now call classical liberalism, political traditions that trace their heritage to Adam Smith. In today’s political atmosphere, these tested ideas are intolerable. People who pay out money to promote these ideas are excoriated as evil.
Moreover, if you take a look at the positions the Koch brothers promote, they are not so controversial. They support organizations like Cato Institute and Reason Foundation, both of which say free markets yield more prosperity for all participants than regulated markets. These arguments sound a lot like arguments we heard from Ronald Reagan, or farther back, from Thomas Jefferson. The Koch brothers support what we now call classical liberalism, political traditions that trace their heritage to Adam Smith. In today’s political atmosphere, these tested ideas are intolerable. People who pay out money to promote these ideas are excoriated as evil.
One more question to consider before leaving this subject: we have a long history of campaign finance regulation in our country. You notice two things about this regulation. First, it has not limited the flow of money into politics. Second, advocates of campaign finance reform think that if only we can find the right set of regulations, we’ll be able to limit the flow, and thereby remove corruption from our political system. They accept Unruh’s suggestion that money, as the mother’s milk of politics, is a corrupting influence, but they do not accept his more obvious meaning: that money is an inherent part of politics, just as it is of banking, international trade, securities markets, or corporate growth. A purist will say that money – especially unregulated money – is a corrupting influence wherever it appears, but that position is hardly defensible in a capitalist economy.
Democrats regard Citizens United as one of the worst Supreme Court decisions ever, yet they were hardly happy with campaign finance regulation before the court decided in 2010, by a 5-4 vote, that ‘freedom of speech prohibits the government from restricting independent expenditures for communications by nonprofit corporations, for-profit corporations, labor unions, and other associations.’ From their point of view, the court did not overturn a satisfactory set of regulations, certainly not an effective set. It overturned one regulation that permitted Satan inside the gates: the prohibition on corporate donations for political purposes.
As soon as you regulate political activity in one political, economic, or social sector, you no longer have an answer for anyone who comes along to say, ‘Well, I want to regulate your speech, too.’
Dating all the way back to progressive and populist politics in the late 1800s, a basic division in American politics has disagreed about whether or not business corporations are pernicious or benign, sources of prosperity and freedom, or of oppression and poverty. If the latter, they are a necessary evil in democratic capitalism that the people’s representatives must regulate. That includes, most particularly, their political activity. Without a doubt, twenty-first century Democrats side with nineteenth century progressives and populists on this question. Corporations require regulation.
As soon as you regulate political activity in one political, economic, or social sector, you no longer have an answer for anyone who comes along to say, ‘Well, I want to regulate your speech, too.’ That is what happened to Citizens United. The Federal Election Commission applied a rule that limited the ability of a non-profit to produce, distribute, and show a political film. The Supreme Court said, you can’t do that, and by the way, you can’t limit political activity for other kinds of organizations, either. Free speech applies everywhere, or it applies nowhere. If campus activists have taught us anything during the last few years, it teaches that free speech rights are indivisible. You can’t grant these rights by degrees, depending on who the speaker is.
Most destructively for democracy, attempts to regulate speech squash every attempt to launch anything new. Yet launching something new is what we mean by free speech. You can’t have free speech if the only speakers are those who already have money to purchase what they need to get their message out. The sound stage has to be open to everyone. That’s all the Supreme Court said. The speakers corner has to be open to everyone.
The same logic that would deny Exxon or Pfizer a voice in the political arena, also denies Charles Murray a voice at Middlebury College, or Ann Coulter a voice at Berkeley. Anticipatory attempts to limit speech, based on expected outcomes or anxiety about its effects, always violate the First Amendment.
Most importantly, it does not matter, under the Bill of Rights, where the money comes from. All that matters is that everyone can talk, persuade, and listen. Every participant can sort good ideas from bad, unless you act to restrict the conversation. At certain pressure points, you can shut down the conversation altogether. The sound stage goes quiet if you cut the electrical supply and remove the megaphones. With that kind of pressure you remove the mother’s milk of self-promotion, as well as the ability to promote other people’s ideas.
The Supreme Court’s decision affirms no one is evil merely because he or she wants to participate. No one is evil because our administrative law grants advantages to some organizations who decide to incorporate. No one is evil because some people or organizations decide to devote funds to public causes, and others do not. The desire to participate in public discussion validates itself, no matter how poorly reasoned or pernicious one’s ideas might be. The same logic that would deny Exxon or Pfizer a voice in the political arena, also denies Charles Murray a voice at Middlebury College, or Ann Coulter a voice at Berkeley. Anticipatory attempts to limit speech, based on expected outcomes or anxiety about its effects, always violate the First Amendment.
Imagine how taxpayers, let alone my local election commission, would react if I claimed, ‘I just started a new political party. Now I qualify for campaign support. My candidate for office is my dog, and I’m his campaign manager. His campaign slogan is “My bite is worse than my bark.” He wants to be dog-catcher, and he needs $20K to win.’
To work around First Amendment issues, the system of campaign finance opponents of Citizens United might favor is not regulation, but blanket public support for all campaign finance expenditures. We often think of public disbursement of funds as fair distribution, one open to oversight, and governed by inclusiveness. In practice, public funding of political candidates would comprise none of these qualities. In the public world, you have to qualify for support. To start, only existing parties qualify. Imagine how taxpayers, let alone my local election commission, would react if I claimed, ‘I just started a new political party. Now I qualify for campaign support. My candidate for office is my dog, and I’m his campaign manager. His campaign slogan is “My bite is worse than my bark.” He wants to be dog-catcher, and he needs $20K to win.’ Imagine how my neighbors, who pay property taxes to fund local elections, would feel about that.
As soon as you try to answer the question, ‘Why can’t animals run for office?’, you understand why you would not want to restrict funding of electoral candidates to approved parties or nominees. How will you persuade someone who thinks his dog is smarter than Donald Trump? Or who thinks dogs would round up other dogs better than a man in a truck? Do not dismiss these questions too quickly. Their point is that you cannot determine a way to decide who qualifies for public funding that people in general will find fair. The only people who might like public funding of elections are the same people who create safe seats from gerrymandered congressional districts. Even they have not liked the idea. Presidential candidates, party leaders, no longer accept federal funds due to the onerous restrictions they carry.
If you rule out public funds to support political candidates because you cannot identify deserving recipients, you run into the same practical difficulty as you try to identify permitted sources of campaign funds. If you cannot determine a standard of fairness to decide who qualifies as a recipient of funds, how do you determine a standard of fairness to determine who qualifies as a donor of funds? Let’s say you dislike Betsy DeVos, and you especially dislike all the money she has donated to foundations to promote charter schools. Let’s say you like public education, and therefore support the general aims of the American Federation of Teachers. Why would anyone in that position want to restrict AFT’s ability to support political candidates who believe public schools are essential to American ideals of equality?
Progressives appear to hold that unfettered politics are inherently corrupt, since money and power are inherently corrupt. Untidiness and honesty can actually coexist quite comfortably, as free-for-all politics creates a lot of checks on deceit. For all its ugliness, the last year or two of American politics demonstrates at least that much.
These examples suggest that as soon as you try to control democratic electoral processes, you also control means of democratic expression and persuasion. We know you cannot control economic activity without controlling people who want to make a living. The same goes for political activity. When you try to control who gives money and who receives it, you also control who gets a voice. Why should the people who made the film, Hillary: The Movie, be silenced, any more than someone who makes a film titled Donald Trump: The Clown?
Citizens United, the organization that made Hillary: The Movie, was a non-profit, but the Federal Election Commission said it could not screen the film. The organization said, ‘Of course we can show this film,’ and the Supreme Court agreed with them. The court affirmed the principle that money is money, speech is speech, and politics is politics. If you don’t like the mess that occurs when all three get together, you don’t like democracy. To tidy up democratic processes, you can create a sanitized version of politics that does not look like democracy at all. Progressives appear to hold that unfettered politics are inherently corrupt, since money and power are inherently corrupt. Untidiness and honesty can actually coexist quite comfortably, as free-for-all politics creates a lot of checks on deceit. For all its ugliness, the last year or two of American politics demonstrates at least that much.
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The fourth article dates all the way back to 2011, just a year after Citizens United. Read it for amusement.
The Jeffersonian 