"Money Doesn't Talk, It Swears"
Last week, the United States Supreme Court called a special session and heard oral arguments in Citizens United v. Federal Election Commission. This case has grave implications for the continuing influence of money in politics under the guise of First Amendment free speech rights for corporations and unions.
On behalf of Citizens United, Theodore Olson stated that the "most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates." While true, this statement does not necessarily require equating the rights of corporations and unions to enage in dialogue about political candidates with those of people who actually vote for them.
Further, although the Supreme Court has considered money a form of protected speech, money does not persuade like mere words. If you ask me to paint your house because you really need to paint it before the winter and it's simply a nice thing to do, I probably will not be persuaded. But, if you ask me to paint you house for $100,000, I may be persuaded to grab my paint brush and get to work.
Imagine what Congress may be persuaded to do when the health care industry and its lobbyists spent $1.4 million per day from Janaury to March alone. In short, money persuades people with a power that mere speech does not possess. This type of avaricious power needs stronger checks against its influence on our political process, not less. Indeed, that's why individuals like Professor Lessig start organizations like Change Congress.
Speaking of individuals, I must admit some despair when I see Floyd Abrams argue on behalf of amicus curiae, Senator Mitch McConnell in Citizens United, especially when Abrams seeks to rely New York Times v. Sullivan to support his arguments against the constitutionality of limiting corporate and union spending on campaigns during elections. Surely, Mr. Abrams appreciates the difference between defending the Fourth Estate that is supposed to be a check and balance on governmennt and defending the rights of corporations and unions to influence politics with aggregated wealth. Alas, perhaps I should take Mr. Abrams' advice and get over it.
Even Stephen Colbert showed his legal chops in discussing this case during his signature segment, The Word, with the word being: Let Freedom Ka-Ching and interviewing Jeffrey Toobin. During both segments, Colbert discusses the 1886 case, Santa Clara v. Southern Pacific Railroad and its questionable reliability.
But the concerns of corporate (and union) speech date back farther than 1886. Indeed, Thomas Jefferon and Abraham Lincoln both expressed the need to be mindful of the harmful effects that aggregated power and wealth can have on our democratic system of government:
"I hope that we shall crush in its birth the aristocracy of our monied corporations, which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country."
"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country . . . corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."
In closing, the First Amendment should not provide refuge for the poweful influence of money in politics as free speech, especially for artificial entities that do not speak, do not vote and whose primary objective is profit. Indeed, as Bob Dylan notes: "Money doesn't talk, it swears."