A judge, Chief Justice John Roberts told us in his confirmation hearings, should act like an umpire: call balls and strikes, but never root for either team. Now Roberts and his conservative brethren are behaving more like personal trainers, slipping steroids to the political world’s Mark McGwires — Citigroup and Chevron, Aetna and AIG. And that’s the ballgame. Without stronger campaign-finance laws, now foreclosed by the Supreme Court’s recent decision in Citizens United v. FEC, economic inequality will continue to be exchanged, dollar for dollar, for political inequality, and vice versa. Our new Gilded Age may have just become politically unassailable, a perfectly vicious circle.
It is cold comfort that the Supreme solons merely put the final touches on this state of affairs with last month’s ruling. Under the law circa three weeks ago, corporations merely had to set up political action committees, or funnel money through front groups like the Chamber of Commerce, in order to spend freely and anonymously on political campaigns. The results were plain to see: Does anyone think Barack Obama actually preferred, as a matter of policy, to throw huge sops to Big Insurance and Pharma in his health care bill? Or might it be that he didn’t want to have such well-endowed enemies?
Still, the fact that corporate money already permeated politics is no defense for the decision in Citizens United. It may actually make the ruling worse, because it destroys the conservative claim that corporations have been oppressed under a far-reaching regime of censorship. The small practical impact of the ruling underlines just how hyperbolic such claims always were.
More importantly, this case gives the lie to the twin pillars of judicial conservatism: that originalism is a principled way of interpreting the Constitution, and that judges ought to be restrained and cautious in overturning legislation.
Justice Antonin Scalia, the ur-originalist, points out that the First Amendment protects all speech, and does not discriminate between different types of speakers. A plausible argument, if only we could credit Scalia with actually believing it. But it can’t be squared with his vote, along with the four other conservatives, to distinguish speech by a public-school student (“Bong Hits 4 Jesus”) from the speech of ordinary citizens.
Chief Justice Roberts, meanwhile, tries to make this decision jibe with the commitment to minimalism, or judicial restraint, for which he has been so lavishly praised. A tough sell, since the case could have easily been decided on narrow grounds, without making any big constitutional pronouncements. Last year, when the conservatives went out of their way to misconstrue the Voting Rights Act in order to avoid striking it down, we could reasonably praise Roberts’ minimalism. It seems that completing the corporatization of our election season was too big a prize for him to pass up.
But perhaps the worst opinion belongs to Justice Anthony Kennedy, writing for all five conservatives. For Kennedy, campaign finance laws are a clear-cut example of censorship. But this “glittering generality,” as Justice John Paul Stevens described it in his dissent, can’t withstand scrutiny. For one thing, who is being censored, exactly? Surely associations deserve some of the constitutional protection given to individual citizens, but Kennedy speaks of corporations as if they were political clubs — as if Bank of America were the League of Women Voters. But corporate executives aren’t representatives of their employees, or their shareholders, or their customers; they represent only themselves, but they can use the profits of their “association” with these lowlier types however they want. This enables contributions that bear no relation to actual public support for their particular causes, yet Kennedy’s opinion gives the impression that corporations have been suppressed, that their voices have not been heard. I understand that justices of the Supreme Court can be a little detached from political reality, but this is ridiculous.
And still, for all his abstraction, Kennedy never asks the most fundamental question: What’s the purpose of free speech, anyway? To say that limits on corporate campaign spending constitute censorship is to promote not a marketplace of ideas, but a pissing match in which wealth, not reason, wins the day. The conservatives have reversed the general tilt of the Bill of Rights itself: it is supposed to be a charter for the little guy, for citizens who cannot hope to have their interests protected by the democratic branches. Does that sound like Wall Street to you?
Still, this issue is not without its difficulties for serious believers in free speech. For one thing, The New York Times and NBC are both corporations with outsized political influence. Could we limit them as well? If not, what justifies restricting the spending of other corporations? For the answer, we must clarify the goal of campaign finance reform. It is to prevent distortion of the process — to stop people from being manipulated by corporate spending that no individual American (save a few) could match. Only the 30-second TV spot really carries any danger of distortion: you can switch off MSNBC and Fox without being much influenced, and you don’t have to buy the New York Times at all, but TV spots bombard people when they are off their guard, with horror-movie music and silky-tongued voiceovers decrying the latest liberal or conservative perfidy.
Interestingly enough, the principle that unasked-for speech deserves less protection has its legal precedents, and Justice Scalia even suggested this approach a few months ago. The Court could have overturned huge swaths of campaign-finance law and still left us this most important nugget: the ability to limit the extent to which corporations, and other groups, can invade the home and distort our democracy. It’s bad enough that well-made, emotionally manipulative ads can tell us what to buy. Do we really want them convincing us who to vote for?