The standard liberal view (and not only the liberal view) of the current law of the land that money is speech, is, “that’s ridiculous. Money is not speech.’
But let’s think the issue through a bit, and we might clarify the issue with the doctrine.
Take a ‘liberal victory’, the legal status of flag burning as protected free speech. The issue isn’t that flag burning is a common liberal desire, but rather that on the ‘jail protestors who burn the flag’ question, liberals tend to come down on the side of the protestors, and to side with the idea that burning the flag is political speech that should not be a crime.
But burning a flag isn’t ‘speech’. It requires no words. It’s an action taken for sending a ‘political message’. It’s a larger definition of the word ‘speech’ than words — it includes ‘action for politics’.
And I have to say, when you adopt that broader definition, it’s hard to defend that spending money in campaigns isn’t speech even more than flag burning. It tends to even involve actual words.
The spending of money to pay for an ad that says ‘vote for someone’ seems an act for a political message more than burning that flag. So, maybe there’s a reason it resonates for some.
Having said that, is this a defense of Citizens United? No. It’s introducing another angle on the issue.
The idea of democracy is to artificially distribute power — one person gets the same one item of that manufactured currency called ‘the vote’ whether he has a lot of money or power or not.
And so things that violate that very purpose of democracy tend to rub us the wrong way. The people with a lot of money and power tend to desire having a little more than just that one vote.
And money is the way to do that. Sheldon Addleston giving tens of millions has a hell of a lot more say about the election than his one vote gives him.
But I think that’s a critical angle on the issue: the fact that the allowance of money to play a large role, even if ‘speech’, has an effect of directly undoing democracy —‘one dollar, one vote’.
It takes the very purpose of democracy at distributing power by recognizing the equal rights of people and restores the increased power of the few at the top democracy was meant to undo.
And that’s a hell of a legitimate legal and moral issue for the running of a democracy and having a constitution that implements that one vote, one person democracy.
Now, I’m going to build a little more of the case for challenging money by pointing out a logical implication of the current law.
If money is recognized, like flag burning, as protected ‘speech’ because it’s something done for a political purpose, where do we draw the line — what ISN’T speech?
Why isn’t violence protected speech? Is there much more of a political action than punching the guy you disagree with in the face? Or assassinating the politician you disagree with?
This is where I’d put a two minute intermission in if a post allowed it to allow the shock of the argument wear off a little but I can’t, so I’ll just continue.
Logically, let’s look at how that’s not as outrageously different than money than we might think.
Both are actions taken for the purpose of expressing a political view, of affecting the political policies. But violence is harmful! Political policies include all kinds of harm. They say who doesn’t get food stamps and medical care. They say who is arrested or killed by the police. They say what wars we fight.
But the violence is meant to change the political outcome — to get someone to vote differently, or in the extreme case of assissination, to change the political leader.
And so is money — it is intended for one purpose, to use the blunt power of the well-funded advertising campaign to change votes and to change the politicians who would otherwise win.
Really, all kinds of undesirable things could be argued to be ‘protected political speech’ using the same logic that allows money to be used without regulation, outside of campaigns, for now.
(The other recognized limit of money as speech is bribery, but between things like ‘speaker fees’ and the lobbying industry hiring former politicians for large sums if they did as desired in office...)
Really, what’s the difference between, “If you pledge to oppose solar energy, I’ll spend $10 million to elect you”, and “if you pledge to oppose solar energy, I’ll give you $100,000”?
The point I’m making there is that we need to recognize, even if money is ‘speech’ under the broader definition of an action for a political purpose, we need to recognize the protection of democracy as a more important goal and that we do have the right to regulate threats to democracy, as we weigh competing rights.
There is one area in which we encourage inequality in politics: a better argument has every right to persuade more people. That’s the intended function of democracy.
Money isn’t that. It’s a worse argument amplified and polished through expensive marketing and smothering the public to hear it hundreds of times more than the better argument.
And I think there is every legal basis for restricting money in elections as that threat to the democracy our constitution intends, rather than on the basis of ‘it’s not speech’.
We restrict free speech in other ways to protect democracy — you can’t carry signs inside voting areas, for example. And billions spent in elections hurts democracy a lot more.
Of course, we need to face that one side of the issue is on that side more for the desired benefit of gaining more political say from their money, rather than a principled argument.
But right now, they’re claiming that principled argument on the idea that money is speech under that larger definition, and they’re pretty satisfied they’re right.
So, let’s point out how terrible the implications are of making any action for a political purpose ‘protected speech’ would be, and how the key issue is how it violates the democracy we want.
I think this is an argument against the current legal argument of the right, apart from the usual discussion on just how to defeat the ruling with new Justices or a constitutional amendment.
It’s a little nebulous but hopefully offers a fresh view.