Supreme Court Unlimited Campaign Financing Debate

The New York Times Opinionator Blog has a challenging posting by Stanley Fish on ” What is the First Amendment For?”

Here is the Crux of the argument:

When [dissenting Justice] Stevens writes “has long been recognized,” he is invoking the force of history and asking us to take note of the reasons why many past court decisions (including one recently written by then-Chief Justice Rehnquist) have acknowledged the dangers posed by corporations, dangers that provoked this declaration by Theodore Roosevelt in 1905: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”

Behind such strong statements is a twin fear: (1) the fear that big money will not only talk (the metaphor that converts campaign expenditures into speech and therefore into a matter that merits First Amendment scrutiny), but will buy votes and influence, and (2) the fear that corporations and unions, with their huge treasuries, will crowd out smaller voices by purchasing all the air time and print space. The majority, Stevens admits, does “acknowledge the validity of the interest in preventing corruption,” but, he complains, it is not an interest it is interested in, for “it effectively discounts the value of that interest to zero.”

That’s not quite right. Kennedy and the others in the majority make the proper noises about corruption; they just don’t think that it is likely to occur and they spend much time explaining why corporations are citizens like anyone else (a proposition Stevens ridicules) and why, for various economic and public-relation reasons, they pose no threat to the integrity of the electoral process.

But even if they thought otherwise, even if they were persuaded by the dire predictions of Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?…Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.

Now in effect Mr Fish is saying warts and all, the recent Supreme Court Decision on Unlimited Campaign Financing makes sense despite his concerns for abuse because it preserves the bedrock right of free speech against any attack or limitation from political and government quarters.

What Mr Fish Fails to take into account are:
1)The profound skewing of wealth and money among a very few in the US – 5% of the population has more than 67% of the wealth. Political History in the West is all about restoring some balance in political rights plus  access to government players and resources  against this overweening influence of Wealth;
2)Money doesn’t speak with transparency – so the source of Money point of views can be easily hidden so one cannot know the author and therefore motives and circumstances behind a Money viewpoint;
3)Corporate/Organizational Money and Voice may be marshaled and deployed without the knowledge or the consent of its many stakeholders;
4)Groups/Organizations do not speak with one voice but represent a smear of views – therefore they should not be allowed to express those as a singular, non-representative view with the pseudo voice of Money. Rather individuals should be the atomic and  only particles of free speech;
5)Money could be easily used secretly and coercively – Lobbyist says discretely to a  Congressman “if you don’t vote for this bill, our sponsors will spend all it takes to make sure you don’t get re-elected”. Then only if the the vote goes wrong does the lobbyist deploy a “spread” of corporate interest groups money to have the Congressman defeated. The “spread” insures that no one interest group can be implicated for having the Congressman defeated.

And these are just the outskirts of many objections to the decision. So, in sum, Mr Fish leaves many inherent flaws in the decision untouched and unresolved in the name of Bedrock Love of Free Speech.

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