21 January 2010

It Really Is Money That Matters

There was a reason that I put that particular video into yesterday's entry: Anticipation of this morning's opinion from the Supreme Court in Citizens United. The Court held (in a 5–4, archly partisan decision) that:

Distinguishing wealthy individuals from corporations based on the latter's special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas." All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views "hav[ing] little or no correlation to the public's support" for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment's original meaning would permit suppressing media corporations' political speech. Austin interferes with the "open marketplace" of ideas protected by the First Amendment. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations.

Citizens United v. Federal Elections Commission, No. 08–205 (21 Jan 2010) (PDF), slip op. (syllabus at 5; internal citations omitted).

Although much of this summary of the reasoning seems perfectly reasonable, and indeed compelled, it nonetheless depends upon an unstated assumption that itself does not bear much scrutiny. The Court did not ask for the correct reconsideration of precedent; it's not Austin that creates the problem here, but Buckley. As I mentioned a while back, the supplementary question that they should have asked was this:

<hypothetical-question> For the disposition of this case, should the Court overrule Buckley v. Valeo insofar as it holds that expenditures and contribution of money and other resources constitute expressive speech protected by the First Amendment that may not be severely regulated for the express purpose of ensuring free and fair elections? </hypothetical-question>

It makes no difference to the "marketplace of ideas" whether the privileged, largely hereditary position of some market participants comes as a result of land grants from the king or differential wealth-accumulation grants from the elected sovereign; it's still a reification of a hereditary privilege, and therefore equally subject to scrutiny regarding what constitutes free exchange of ideas. It's not the expression that is at issue, but the means to communicate that expression. Although McLuhan may have claimed that "the medium is the massage" (later changed by many to "the medium is the message"), that statement of equivalence fails to acknowledge that context and content are a dynamic equilibrium; so does Buckley, and thus so did the Court this morning in Citizens United.

What I find most disturbing is that this particular error favors nonvoters: Corporations are not "citizens" for purposes of voting (except, perhaps, in Chicago... and the reality of modern campaign finance). Neither, for that matter, are unions. Instead, corporations and unions represent a broad delegation of authority by investors to managers (capital in corporations, labor in unions) who, in turn, are supposed to represent the limited best interests of that delegation. Whether one accepts the "nexus of contracts" model of corporations or uses some other model (and similarly for unions), the key point is that it is a delegation related to a limited interest; and in that sense, the real problem is not the "forced speech" meme that dominates the 180ish pages of opinions in this matter, but the Rawlsian problem of the initial position. In this instance, corporations (and unions) have a preferred initial position, and Citizens United fails to acknowledge that governmental preference for an initial position constitutes an intensely ideological prejudgment... which, in turn, is inconsistent with the values of free speech both explicitly and implicitly at the core of the First Amendment.

I do not claim that this means that one must disfavor corporate/union speech; I only deny that mere expenditure constitutes expressive speech, when mere expenditure (and the accumulation of resources to engage in mere expenditure) has been granted a favored initial position. And, in turn, that's why the artificial distinction requiring use of PACs and other artificial devices to separate expenditures on political speech from general treasuries (of artificial "persons") makes a great deal more sense than does the Court's action this morning. It's not a perfect solution, but it is the least-intrusive means... unless, of course, one denies that the favored initial position has even the capability of distorting the marketplace of ideas. In short, unless one would apply neoclassical microeconomics to a postmodern macroeconomic context without any regard for the problems created by monopoly and oligopoly pricing. To paraphrase Ursula Le Guin, free speech does not consist of handing one party a bullhorn and open venue in a public park while simultaneously allowing a party with inconsistent views to hold forth in a public lavatory near that park... without a bullhorn.

It really is money that matters, and Justice Kennedy could not possibly have made that more explicit without saying so in so many words. Authors — and, in particular, fiction-writers seeking commercial publication — should keep this in mind.