My treasured bulwark against tyranny has recently been turned on its head to facilitate attempts by private interests to capture the government and hold it by the sheer volume and “harmony” of their voices. While the Supreme Court’s recent Citizens United decision consummated the deal, the erosion process began in a judicial footnote over a century ago, and was enabled by another Supreme Court decision in the 1970s.
That footnote appeared in an 1886 railroad case, and conferred “personhood” status on corporations, which were not yet the dominant economic institutions they are today. Thus they could enjoy Constitutional protections originally accorded to living, bleeding Americans. Recognizing the corrupting influence of money in politics, later legislation forbade corporate political contributions, at least in federal elections.
Fast forward to 1976, when the Supremes, in a case challenging the Constitutionality of campaign finance reform legislation, equated donations-to-candidates with the expression of a political opinion. Thus, the First Amendment’s protections of individual rights now come into play to constrain government power to limit those “expressions.” The yet-more-conservative Roberts Court then recently issued the awful Citizens United decision, largely removing the government’s power to limit contributions. That decision opened the floodgates that previously regulated the flow of corporate money to candidates for policy-making positions in government -- governments whose job it is, in part, to regulate those corporations (think: Love Canal, Enron/Madoff/credit default swaps, thalidomide). The inmates have captured the asylum.
So, while “the law, in its majestic equality” also allows the poor and disadvantaged to contribute as they may, whose views, do you suppose, will be heard in the halls of government? It has never been so good to be “in” with the In-crowd – a crowd with nearly unlimited resources, focused narrowly on policies that maximize profits. Only coincidentally do those interests also serve the notion of a broader public interest.
Some see hope in the democratization (small D) of expression by the web on which you’re reading this. Others point to the historic inability of the super-rich to get themselves elected (e.g., Forbes, Trump, Whitman, of late). I’m less sanguine, especially when I consider how far to the right the country has already moved in my lifetime, and as I watch purported “liberals” (or dreaded “socialists” in the absurd hyperbole of the day) toady-up to the lords of high finance who will underwrite their next campaigns.
The First Amendment can no longer ensure “a free marketplace of ideas” when those ideas are for sale to the highest, loudest bidder. As Ben Franklin said, We have “a republic – if you can keep it.” Tragically, America has largely lost the powerful ally of the First Amendment in our attempts to do so.
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