Daniel J.H. Greenwood

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Liberty for Citizens, not Dollars

Daniel JH Greenwood
Sunday Salt Lake Tribune, July 2, 2006

Thirty years ago, in Buckley v. Valeo, the Supreme Court stood the First Amendment on its head. This week in Randall v. Sorrell, it had the chance to reexamine the issue. It punted.

Randall overturns Vermont’s attempt to rescue democracy from our modern day sale of indulgences. Politicians ought to be focused on the public good, not on selling their favors to the highest bidder.

Vermont passed a law limiting campaign spending, because expensive campaigns force politicians to pay too much attention to the views of wealthy corporations and other donors and not enough attention to citizens and voters. Six justices of the Supreme Court, however, reiterated Buckley’s holding that money “is” speech and the First Amendment therefore bars Vermonters from limiting campaign spending or restricting contributions in the way they wish.

The Court has transformed the First Amendment from the chief bulwark of our limited democracy into the foundation of a new system of government for sale.

The First Amendment bars the government from restricting the rights of speech, religion and assembly. This protects democracy and republican self-rule in three basic ways:

The Buckley/Randall equation of money with speech turns each of the three First Amendment purposes on its head.

Most important, the Buckley version of the First Amendment is an attack on free elections and majority rule. When the power of money is free of governmental regulation, those with power and money use it to buy more power and money. Incumbent politicians have more favors to sell to contributors, and so they receive more contributions. The consequence is that the Buckley/Randall First Amendment—unlike the Founders’ version—protects incumbents and the big businesses that can buy them.

By distorting the First Amendment to bar limits on campaign spending, the Court hands those who control money the power to buy the advertising that affects elections. Politicians who need that money, in turn, can be expected to keep the interests and desires of their contributors at the top of their agenda. While seven Justices acknowledge that the First Amendment allows states to bar corruption, six fail to see the bigger problem. So long as politicians have predictable positions on the issues lobbyist contributors care about—or normal loyalty to those who do them favors—they can sell their services with no explicit bribes at all.

Today, 1% of the population controls almost 40% of America's wealth, while half the population has only about 1% of it. This isn't exactly what Jesus had in mind when he said, “to those who have much shall be given,” but the teaching is apt. Instead of government serving the middle class, it redistributes upward, to the powerful who can buy its services.

Second, while more speech protects us from the silence of conformity, the Buckley/Randall protection of money increases conformity. Corporations can be counted on to pursue a remarkably limited political agenda in their lobbying: increasing their ability make money. Similarly, extremely wealthy individuals too often promote their own narrow interests at the expense of the nation’s, as we have seen in the recent campaign to abolish the estate tax funded by a handful of extremely wealthy families that will be virtually the only beneficiaries. And any politician who dares to buck the needs of money finds that without money, all the statesmanship in the world is not enough to get elected.

Third, freedom of speech protects our individual autonomy from the government. But “freedom of money” simply lessens our ability to govern ourselves. Increasing the power of wealthy institutions that can afford to lobby or to organize does nothing to increase the autonomy of individuals. Making our elected politicians dependant on unelected contributors distorts majority rule without protecting minorities from its excesses.

We can rescue America’s democracy from the threat of plutocracy—the rule of the richest—and re-establish a vibrant popular democracy responsive to the needs of the people, not multi-national corporations. The Supreme Court has shown it will not help this effort. But the people still have the ultimate say. The next steps should include further limits on lobbying and contributions, public campaign financing, and ultimately a Constitutional amendment making clear the truth. Free speech is not the same as government for sale.

--June 26, 2006

Daniel Greenwood is S.J. Quinney Professor of Law at the S.J. Quinney College of Law, University of Utah, where he teaches and researches about the role of corporations in society. He authored an amicus curiae brief to the Supreme Court in Randall v. Sorrell on behalf of ReclaimDemocracy.org. The opinions in this article are his own and do not reflect the views of the University of Utah.