Speech, Elections And Money: Is The Constitution The Problem?
It doesn’t appear that we have any constitutional means of removing the scourge of unlimited money from our election and governing process. How could a robust, comprehensive system of restrictions be implemented when the U.S. Constitution seems to protect all forms of speech? While not exploited in our current debate, there are resources in that document that could be used.
Political and economic tyranny
On first reading, the U.S. Constitution is primarily focused on preventing tyranny by the government: It separates power into three branches of government, it limits what the federal government can do, it lists rights the citizenry has against the government and it provides for the existence of a federal system where states have their own governments.
By contrast, there is next to nothing in that document about concentrations of economic power: nothing about monopolies, nothing about wealthy people. Article I contains several provisions allowing Congress to regulate interstate commerce, to provide rules for bankruptcies and patents, but none of these rise to the level of limiting wealth or economic power.
While conservatives rail against the expanding power of the federal government, they have nothing much to say about the expanding power of corporations. While many are afraid of the police getting too much power, there seems to be less worry about all the information that corporations have on us.
The Constitution has been an effective document for 200 years, continuously guiding the world’s oldest democracy through challenges of civil war, internal expansion and external wars. In contrast, it has left us vulnerable to the tyranny of economic monopoly. However, there are some intriguing phrases in the Constitution that might be useful.
There are two uses of the phrase “general welfare” in the Constitution. The preamble says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Article I, Section 8 states: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”
The phrase “general welfare” has seldom, if ever, been the basis of any dispute or interpretation. In Article I, it has been taken to mean that taxes can be leveled for any activity that promotes the general welfare, but the activities that would not meet that standard has never been spelled out. The preamble, an authoritative source on the history of interpretation of the Constitution states, “is not a source of power for any department of the Federal Government” but has been referred to by the Supreme Court to describe the “origin, scope and purpose” of the Constitution.
Promoting democracy would be part and parcel of promoting the “general welfare” of the nation, but there is little or no tradition in seeing it that way.
Titles of Nobility
Article 1, Section 9 states: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
Section 1 of the 14th amendment reads in part: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
Section 1 of the 24th Amendment reads in part: “The right of citizens of the United States to vote … shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.”
Titles of nobility have nothing directly to do with elections or speech, of course. But it is an interesting piece of evidence that there are not to be multiple classes of citizens in the United States, no division between nobility and common people. A democracy means that all citizens stand in equality. The 14th Amendment stated that in a different way insisting that the law applies equally to all. Equal protection has been the basis of some election law, but it has operated more to open the process to all rather than to limit money.
There was a time when you had to pay taxes to vote. The 24th Amendment was motivated because it was thought repugnant that participation in elections was being restricted by financial considerations. But what about your ability to participate in the deliberation prior to elections?
None of these provisions would ever provide any direct legal grounds for declaring massive amounts of money in the election process to be unconstitutional. But they lay the groundwork for what follows.
Going (slightly) beyond the text
“The Constitution rests on three non-textual structural ideas – democracy, separation of powers and federalism. Despite the absence of explicit textual guidance, the Supreme Court has forged effective constitutional doctrine protecting both federalism and the separation of powers. There is no reason why a body of substantive doctrine could not be forged, as well, protecting democracy.” So states Burt Neuborne, in Money, Politics, and the Constitution.
The words “federalism” or “separation of powers” do not appear in the text. But the text implies them, implements them, insists on them. The constant references to the “states” over against the “United States” can only be understood as a federal system. The structure of the first three articles, the careful delineation of powers to various branches can only be understood as requiring separation of powers.
And so the courts have understood and implemented, using the principles of federalism and separation of powers to help decide specific cases not explicitly dealt with in the text.
What about democracy? That word also never appears in the Constitution. But the very point of the document is to secure the “blessings of liberty” to this nation. Its limitations on government power, its prohibition of nobility, its guarantee of rights and its specific guarantee of free speech, free press and freedom of assembly and a score of other provisions indicate that its intent is to have our nation be a representative democracy. It seems hard to imagine how it could be clearer.
And there is this. Article IV section 4 states: “The United States shall guarantee to every State in this Union a Republican Form of Government.” Despite some record of this being debated at the Constitutional Convention, the exact intent of this clause has never been clear. Perhaps it requires the federal government to prevent a state from converting itself to a monarchy.
Why does it only require states to have a republican form of government and not the United States? The answer must be that the rest of the Constitution provides that guarantee.
Preserving a republican form of government
The unlimited application of money to the election process and to the governing process clearly undermines our republican form of government. It has set up a system of financial nobility where some citizens have privileges that others do not – privileges not created by their superior ability as advocates for the general welfare nor were these privileges democratically given by other citizens to these wealthy few in recognition of their superior ability to represent us.
The process of deliberation prior to an election is fatally compromised by an informal “poll tax” that prohibits people from running as candidates unless they have money and prohibits them from taking meaningful part in the election debate unless they have money.
The process of having access to our elected representatives, of influencing them, even of pressuring them is fatally compromised by a system that requires you to have money and spend it in order to exercise these rights. The result is a system that does not provide equal protection under the law for rich and poor alike.
As it stands now, not just because of the Citizens United decision, but because of a history of not seeing the promotion of democracy as equally important as federalism or the separation of powers, we are left in a position where we are helpless to defend ourselves against an enemy that damages our democracy as any terrorist has.
The First Amendment was clearly meant to provide the institutional means for democracy. But the truth is given by Neuborne: “It borders on the tragic that the First Amendment, designed by the Founders to be democracy’s best friend, has been turned by the Court into its enemy in so many settings.”
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