Earlier this year, when protesters disrupted the Supreme Court on the anniversary of the Citizens United opinion, they trumpeted a familiar slogan: “money isn’t speech.” In the four years since the ruling, this phrase has been the linchpin of the liberal critique of American campaign-finance jurisprudence, the idiom of the movement to get “money out of politics.”
Yet there are profound limitations to a politics that attempts to distinguish between money and speech. While attempts to curtail corporate expenditures in elections are important, the Citizens United court inadvertently recognized a profound truth about the way wealth structures society. Money is speech, which is precisely why its distribution matters so much.
The Citizens United case, which struck down prohibitions on corporate (and union) campaign spending, was never so much a change in First Amendment case law as its logical endpoint. American courts have long conceptualized free speech as a wholly negative liberty, their sole concern the degree to which the government can explicitly intervene in the activities of citizens.
But this idea of free speech has always suffered from a contradiction, namely that the exercise of speech is always shaped by the economic situation of the speaker. As the Court put it in its landmark 1976 case Buckley v. Valeo:
Virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.
The Buckley opinion arose from a challenge to post-Watergate provisions in the Federal Election Campaign Act. Congress attempted to place strict limits on both individual contributions and candidate expenditures, but the Court rejected the latter, laying the foundation for Citizens United. Each verdict reasons that to see the First Amendment as solely protecting speaking is an absurdity. In the Court’s view, since one’s ability to speak is so tied to one’s wallet, the argument that money isn’t speech collapses.
And they’re right. But that should lead us to a truly sweeping and critical verdict: when there are class differences and maldistributed wealth, democracy and free speech can never truly exist. The possession of money determines one’s positive ability to act. To invert an aphorism from Anatole France, rich and poor alike have the equal right to hire high-priced lobbyists and purchase Superbowl ads.
In this way, money not only buys political power, it is political power. Its possession confers godlike capability, and its deprivation creates servitude. With money one can manipulate public taste, ruin one’s enemies, and build, destroy, and conquer.
It’s the reason the film industry can secure massive, budget-depleting tax refunds and Walmart can single-handedly block attempts at wage regulation; where the flight of capital is a sufficient threat to people’s lives, direct corruption of the political process is unnecessary. Without it, one cannot eat, create, or even choose one’s everyday movements.
All of this is rather obvious. Yet as economists Samuel Bowles and Herbert Gintis note, while the observation that capital confers power “may evoke the same degree of astonishment as the observation that dogs bark,” this truism is utterly unaccounted for by liberal political philosophy’s negative-liberty framework. Adding campaign expenditure restrictions, as American liberals propose, does little to alter this fundamentally naive assumption. Capitalism’s predation of democracy won’t let up because of a well-placed restriction on campaign giving.
If money shapes the contours of our life choices, and is the prime determinant of our possible acts, then one person possessing more money than another is no different from his having more votes. And if rights are only meaningful to the extent they can be exercised, granting an equal right to free speech would demand a massive redistribution of wealth.
Naturally, the Citizens United decision, though the inevitable progeny of a long line of cases, is an affront to democracy. It helped entrench corporate power, and the resulting tidal wave of new election spending shouldn’t be trivialized. Yet this is far more a product of economics than law. The excessive influence of the wealthy on government did not begin with Citizens United, but with the founding of the country. It is a function of an inegalitarian economic system, not anticorruption statutes.
The theory behind progressive opposition to Citizens United thus clouds our understanding of freedom. In September, Justice Ruth Bader Ginsburg suggested Citizens United was one the Court’s worst mistakes, saying that “the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.”
But just two weeks later, Ginsburg signed onto the Court’s judgment in Integrity Staffing Solutions, Inc. v. Busk, which limited the reach of the Fair Labor Standards Act. In that case, the Court ruled that employers do not need to compensate employees for the time they spend standing in line for a mandatory security screening.
The Court held that because the workers had been hired to pack boxes rather than stand in line, they didn’t need to be paid for the parts of their job that did not involve packing boxes. All four liberal justices concurred. (So did the Obama administration, which had filed a brief in support of the temp agency.)
For Ginsburg, there is no contradiction in opposing Citizens Unitedand supporting Integrity Staffing Solutions, even if both ultimately reduce ordinary people’s agency. Jesse Busk, the temp worker who sued over the denial of wages, reported that he wished to be paid the $6.25 for his screening because “the job was exhausting — we would sometimes walk twenty miles a night — and I was eager to go home and get some sleep.”
But when Ginsburg speaks of “what our democracy is supposed to be,” she thinks only of an individual’s relationship with the state; economic democracy is a foreign concept, and Jesse Busk’s twelve-hour shift has no relevance. An employer’s power over an employee may decimate the usefulness of the rights Ginsburg values, but apparently because money isn’t speech, one has no right to it.
Liberal election reform efforts have taken many shapes, from matching funds schemes to proposals to distribute $50 vouchers to voters, each attempting to overlay a fair political process onto an unequal economy. Many of these policies would make a substantive difference in the level to which government power is purchasable, even if nearly all of them are likely to be declared unconstitutional by a conservative-majority Supreme Court.
But all progressive plans suffer from the same core weakness: they address only a tiny fraction of the ways in which wealth is politically important. When US Steel unilaterally laid off 545 workers last week, none had any input into this decision; when 95 percent of the “post-recession” economic gains went to the top 1 percent, the political power of the non-wealthy was stamped out even more.
By attempting to forge a superficially fair political sphere while leaving the inegalitarian core of capitalism untouched, liberals are therefore ensuring that the most pernicious antidemocratic forces in American life are untouched.
If Citizens United eroded American democracy, the central proposition of the ruling was correct. And as soon as money is recognized as speech, the incompatibility of political equality and capitalism is revealed. There can never be such a thing as free speech until economic resources are distributed equally.
A political process that limits corporate influence is to be striven for. But a politics in which capital doesn’t dominate requires an economy without a class system.