Is Money = Speech Under the US Constitution?

According to the Supreme Court it is.  In the landmark election finance case Buckley v. Valeo (1974) the Supreme Court ruled that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

For years I found this to be a seemingly straightforward exposition, and accepted as necessary the collateral damage — our political process being dominated by moneyed people and interests, and elections being bought and paid for like any supply-demand commodity.  Free speech is not necessarily a clean proposition , so we have to take the good with the bad if we want to have it at all.

This was all before I read a book by a Yale law professor named Cass Sunstein, entitled Democracy and the Problem of Free Speech (The Free Press, 1995).  In this treatise Sunstein analyzes the Buckleydecision (among others) in the context of what he defines as the “Madisonian Conception” of the Constitution and of the First Amendment.  On this (Madisonian) view, which he legitimizes by sheer force of logical argument and historical fact,  the principal and crucial objective of the First Amendment originally was, and should now be, to create and protect an environment in which issues of public interest can be exposed to a process of civic deliberation.  The idealized goal of this conception of free speech is to maximize opportunities for all citizens to participate in a deliberative process that includes the views of a broad spectrum of society — not just the wealthy (or the white, or the male landowners) .

Ergo, Sunstein concludes, the Court erred in Buckley because the ruling produces the opposite effect: the domination of the political process by the wealthy virtually guarantees that those voices not backed by sufficient dollars will not be heard.

Sunstein’s argument derives from a broader logical construct concerning the Court’s errant use of “status quo neutrality” to justify its decisions.  The Court refused to limit expenditures on policitcal campaigns because to do so would involve ‘discrimnating’ against the wealthy.  If some people have more money than others, and they choose to spend it on political campaigns, it’s not the Court’s business to take sides on this issue: to do so would be an impartial intrusion into an otherwise ‘neutral’ marketplace (the marketplace of making money).

This ’status quo neutrality’, Sunstein argues, is false: it doesn’t exist.  And to demonstrate this he cleverly refers back to a number of cases decided by the Court in connection with FDR’s New Deal legislation, in which ’status quo neutrality’ is exposed by the Court for the false ‘neutrality’ that it is.  To complete the analogy, Sunstein calls for a “New Deal for Free Speech” and describes how some of the thorniest issues in modern First Amendment law (campaign finance, pornography, libel, among others) would be treated under this new New Deal.

I summarize Sunstein here because more often than not, people who react negatively to my proposed 28th Amendment are opposed to it because it discriminates against rich people.  But upon deeper analysis, it turns out that the First Amendment, both in its origins and its evolution, actually forcefully argues for the protection of the widest possible range of voices and views on all matters of concern to the public.  On that view, it is actually the Buckley decision that is wholly foreign to the First Amendment.

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