Monday, January 25, 2010

How Dangerous Is Corporate Speech to Democracy?

The sad state of editorial opinion at the New York Times is displayed in this editorial on Citizens United v. Federal Election Comm'n, the recent case upholding corporations' First Amendment right to support or oppose candidates publicly in the run-up to elections. Were anyone foolish enough to have appointed me to the Supreme Court, I’d have joined Justice Stevens’ dissent rather than Justice Kennedy’s opinion for the Court.  But that doesn't make the Times' zeal to impugn the judicial integrity of the majority and its pretense of clairvoyance any less preposterous (my emphasis):
"With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding."
Who’s being disingenuous here? The Times' editors can’t even bring themselves to mention the legal reasons the majority adduced in support of its decision. Anyone who’s been paying attention to legal commentary on McCain-Feingold for the last eight years knows that it raises vexing First Amendment issues. (Glenn Greenwald, writing from the left, supplies a good account of them here.) Any lawyer litigating the case on behalf of either side would have had a fiduciary duty to tell her client that there’s a substantial probability it would lose on the merits. The Times can’t even bother to affect the objectivity required of a hired gun.  Liberals used to deplore this sort of thing as an unwarranted assault on the independence of the federal judiciary.

And then there’s the editors’ certainty about Citizens United's dire consequences for our democracy. Yes, anyone committed to political equality has to be concerned whenever unequally distributed dollars help decide elections. But we can place the political uses to which dollars are put on a continuum according to how much political inequality they cause.

Outright bribery, the exchange of a representative’s vote for money stands at the malign end of the spectrum.  When a legislator’s vote is bought and paid for, the buyer’s preferences count more than those of all of the representative’s other constituents put together.

Normal lobbying, the use of dollars to wield influence with public decision-makers privately (literally or figuratively, in the “lobby” of a legislature or an administrative agency) is somewhere in the middle of the continuum. When the lobbyist’s clients work their will on executive and legislative decision-makers, they control the schedule of alternatives that comes before the voters in the light of day. An unorganized voter’s preferences carry that much less weight in public decision-making because she's deprived of the occasion for expressing her preference on a matter of public import.

Anyway you slice it, using money to disseminate political speech stands at the benign end of the continuum because it’s a way of exerting influence through the consciousness and will of voters. Granted, when channels of communication are scarce, corporate money could crowd out other voices by driving up the price of getting a message out. But that’s never been less of a problem than it is now in the age of viral you-tubes, when new technologies are lowering the price of transmitting information and organizing public opinion every day.

Look at it this way: Citizen’s United will either encourage more money to flow into the political market or it won’t. If it doesn’t, it will promote political equality by reallocating money now devoted to activities on the malign side of the continuum to activities on the benign side. If more corporate money does flow into the political market, its bad effects will be mitigated by the increased transparency that flow from clearly attributable public comment. Every time a corporation makes its advocacy public, its lobbying activities will become a little less private and maybe a little less effective.

I don’t pretend to know what net effect Citizens United will have on the democratic process. That’s one reason why I think Justice Stevens is probably right when he argues that the courts ought to defer to the complicated empirical judgments of legislatures on matters pertaining to the regulation of elections.  But has the Times furnished any reason why we should believe that it knows more than anybody else?

A little demagoguery on this matter is tolerable coming from politicians. They're in a business where objectivity properly takes a back seat to advocacy and political mobilization. What’s the Times’ excuse?

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