The Citizens United v. Federal Election Commission (2010) decision should not have surprised any of us, but it is clearly disappointing. Many in the Republican Party have long connected campaign donations with constitutional free speech. In other words, it is not simply the spoken word that enjoys constitutional protection, but also campaign donations given to candidates running for public office. Free speech now incorporates a person’s quantitative ability to spend money on political campaigns in essence giving the wealthiest of Americans greater free speech rights. Political speech that otherwise should be constitutionally equal is now disproportionately conferred depending upon one’s purchasing power. Anthony Kennedy, who wrote the majority opinion in the case, declared
Because speech is an essential mechanism of democracy — it is the means to hold officials accountable to the people — political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest. This language provides a sufficient framework for protecting the interests in this case. Premised mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.
The above quote is correct. However, it is interesting that Kennedy rationalizes the majority’s conclusions in Citizens United by coupling free speech with financial donations to political candidates. The First Amendment language he quotes above is broadened in his final conclusion by stretching the meaning of free speech beyond the Framers’ original intent. In fact, one could argue that he not only stretched the meaning of free speech beyond original intent, but that he also substituted it with synthetic exchange value via money.
Representing the neo-liberal and neo-conservative perspective, the Court’s majority responded by commodifying free speech and connecting it to economic power. Emblematic of the marketization and privatization pursued throughout the past several decades, we have witnessed the plutocratic usurpation of a fundamental constitutional right. The Court has committed real damage to democratic political speech by making it contingent upon citizens’ pecuniary capacity. The interpretation of a fundamental constitutional right should never be attached to or skewed by one’s socioeconomic status.
In Justice as Fairness, Rawls asserts that the basic or fundamental rights of “conscience and freedom of association, freedom of speech (my emphasis) and liberty of the person, the rights to vote, to hold public office, to be treated in accordance with the rule of law, and so on,” should be equal to all” as a matter of justice. Otherwise, unequal rights and liberties undermine democratic opportunities.
Citizens with greater wealth are better able to leverage political speech than those who are less fortunate, often resulting in a skewed and exponential growth of economic and political investments for the well-off. Greater economic power has often translated into greater political power, and this Court’s decision has magnified this problem.
According to Rawls, it is necessary to carry out public funding of elections, to place restrictions on campaign contributions, and to substantially equalize access to the media to prevent, or at least limit, the eclipse of the political realm by private economic power.
In conclusion, the Court has failed to address a fundamental political problem acknowledged by the centuries-old and influential civic republican canon. Namely, the canon steadfastly embraced as axiomatic the value of preserving political equality by regulating excessive economic power and influence. In other words, according to this canon, preserving political equality represented a compelling government interest in pursuit of the public interest.
Citizens United v. Federal Election Commission, 558 U.S. 310, 2010.
Rawls, John. (2001). Justice as Fairness: A Restatement. E. Kelly (ed.), Cambridge, MA: Harvard University Press.
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