Are all limits on freedom of speech unconstitutional and wrong? Is speech during an election a special category? Is money speech? Does how much money a speaker have at their disposal make any difference? At the intersection of these questions stands one of the most pivotal Supreme Court decisions in recent years. The case is formally cited as Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), otherwise known simply as “Citizens United.”
It is a complex decision: 183 pages of opinions by the majority, by justices who agreed with the majority, a strongly argued minority opinion and one more opinion that thought the majority didn’t go far enough. More than 50 organizations submitted briefs to the court concerning the case. Even the Wikipedia page for this decision runs 23 pages when printed as a PDF and contains more than 100 footnotes.
This week marks the beginning a series of articles reflecting on the implications for our democracy that this case highlighted. It will begin with an issue that would seem not to have much to do with freedom of speech but does critically have to do with our democracy: conflict of interest.
Bias and conflict of interest
In day to day usage, many call someone biased when what they actually mean is “someone who disagrees with me,” but bias more properly refers not to errors but to defects in how someone makes a decision. To add two and two to get five is a mistake. To do that because you hate even numbers and don’t think they should be the answer to an addition problem is bias.
There are different types of bias, but the one that is relevant to our elections and to the process of deliberation of the public is that of conflict of interest. A conflict of interest is when you have some sort of stake in the outcome. If a law is passed or a decision made that affects your pocket book, then you have a stake in the outcome and you are not a dispassionate decision maker.
Conflicts are almost always about money in some form, either directly (“change this tax law and I gain $1,000”) or indirectly (“I know candidate X, and if he gets elected, I’ll have an ‘in’ at the government that will help with my taxes later on.”).
One of the (many) problems with the Citizens United decision is that the majority is either ignorant of, or willfully blind to, the concept of conflict of interest as it affects elections.
Three types of corruption
First, a bit of categorization. We understand the concept of a bribe: “Pay me $1,000 and I will vote for you.” This is what the court, and others, refers to as quid pro quo corruption, an exchange: You do something for me, and I’ll do something for you. A second type of corruption is threats and pressure. “If you don’t vote the way I want, I will run a million dollars of advertisements against you.” This type doesn’t even have to be vocalized, it can just be understood that it will take place. “I know that organization hates this issue and they are likely to campaign against me if I vote against them.”
The third type of corruption is undue influence brought on by the distorting impact of some having a lot of money and others being unable to match it. This is crucial, and I’ll deal with it more fully in a later article.
Isn’t business based on influence?
To support someone who will support you – or to propose a mutually beneficial arrangement – is that really evil? Isn’t that just what a business does when it finds a partner or enters into a deal? Can’t you advocate for yourself? Or try to get people elected who agree with you?
Of course you can seek your own advantage. The problem is that some actors in our society are set up to be impartial: judges, referees, teachers, doctors and police among them. In order to be effective, some processes could require some similar restrictions on partiality. Are elections one of them?
There are more problems than quid pro quo
The majority opinion assumes that the only issue concerning money in elections is bribery: the explicit exchange of favors for money. Time and again the court highlights the concept of quid pro quo corruption and decides that spending vast amounts of money on a campaign isn’t quid pro quo, it’s merely “favoritism and influence”, which is unavoidable in a democracy. More amazingly, the court thinks there is no harm in this. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
I admit that when I read that, I came to a complete stop and just stared at the text for a second. Can they actually believe that? In a time of massive cynicism about our political process being at the beck and call of monied interests, they think there is not even a risk of a loss of faith?
This was not an isolated comment. “… [I]ndependent expenditures … do not give rise to corruption or the appearance of corruption.” Well, massive independent expenditures for one side in an election certainly do give rise to the appearance that something is amiss.
Justice Stevens, writing for four justices, in a long and impassioned dissent, nailed this analytical failure, explaining that Congress and the courts have long understood there was more at stake than simple exchange of favors and that a “broader understanding of corruption has deep roots in the Nation’s history.” Thomas Burke, in a 1997 article in Constitutional Commentary developed the same issue concerning earlier decisions.
Naïve, stupid or a cover story?
So what is the majority thinking? There could be three possible explanations.
People who have long made six-figure incomes and who routinely have extensive control over their own lives can be astonishingly naïve about what it means not to have those advantages. I still remember a rich boss of mine, a fine leader and great human being, who just couldn’t understand why everyone didn’t have two years worth of salary saved in some safe investments.
So it is possible that justices, for whom access and influence are their daily experience, just do not see anything wrong with it or understand that all citizens do not possess an equal measure of it. When the court writes that an expenditure of money promoting a candidate is independent — it “undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will give given as a quid pro quo for improper commitments …” (quoting with approval the Buckley decision) — the only reaction possible is that this is a very naïve view of how politics works. Candidates are well aware of hostile and favorable expenditures, independent or not.
Could it just be stupidity? Stumbling again and again over the logical holes in the majority’s argument, still more so when reading how easy it is for Stevens to catch them in the most obvious of errors, one does wonder. But, whatever you might say about our current conservative majority on the Supreme Court, they don’t seem to be stupid people.
Much more plausible is that this reasoning is a cover story, perhaps an unconscious one. There has long been an attitude among the privileged and the powerful that democracy is actually a bad idea. From Plato, through some of our own founding fathers to the present day, rule of the “mob” is feared, and a form of government where the “natural leaders” and the “best people” can quietly make decisions seems preferable to dealing with the hubbub of the great unwashed masses.
Making assumptions about motives is always risky and often unfair, but there are indications in the majority opinion that point to this idea. When the court describes restrictions on corporate expenditures as “muffle[ing] the voices that best represent the most significant segments of the economy” (quoting with approval a previous opinion of Justice Scalia), one begins to wonder.
The court also describes the law it overturned as ominous. “The censorship we now confront is vast in its reach.” Really? Forcing a corporation to use a PAC rather than its own treasury, limiting its expenditures 30 days (but not 31) before an election and only impacting communication that is explicitly advocating for a candidate (not about issues) is “vast censorship”? Only if corporations are God (and you have no experience with actual censorship).
Finally, the cat is let out of the bag in that while the law restricted corporations and unions equally, the majority writes only of the harm done to corporations. There is not a single substantive reference in the entire decision to the law’s impact on restricting the speech of unions. The majority emote about the tragedy of all sorts of mom and pop businesses being censored but write not a word about labor unions.
Go back to the three types of corruption. If you think that wealth makes right, then, of course, using wealth to produce influence is a positive good. But that won’t do.
A test case: election of judges
Stevens writes that “[t]he Court’s ruling threatens to undermine the integrity of elected institutions across the Nation.” Next week I’ll look at a telling test case of this: the impact on the election of judges.