From the Left: The Supreme Court Decision - Not True Democracy

From Todd Eckenfelder:

Democracy: A Market Place of Ideas Worth Protecting?

The recent Supreme Court ruling found, limits (any limits at all actually) on political spending to be unconstitutional –the entities most directly affected by this ruling were large political entities with strong and motivated lobbyists such as unions, corporations, and even entire markets. The legal principal upon which this ruling balances is the equality of corporations to citizens under the law. It also equates monetary donations as a form of speech. Therefore, if [this form of political] speech is free, and corporations are citizens, corporations must be afforded equal protection under the law to speak. One way to protect it, according to the court, is to allow no restrictions.

In assessing how much speech is enough free speech, one must weight potential causes an affects. Let me give a brief example to illustrate my point. It is clear, not all speech is free. One cannot wear a shirt with the letters F, U, C, K on them into a public courthouse. People can be prosecuted in a court of law for speaking out against their country in harmful ways. People can even sue each other in civil courts for using speech that may harm one another –libel, and slander are two examples of personal harmful speech, which are illegal. And then, there is the popular example of yelling fire in a crowded public place. These are all popular examples of limited speech. The question isn’t whether we can limit speech; it is under what circumstances is it in our best interests to limit certain kinds of speech. There has to be a justification. What McCain/Feingold presumed, was that it was in the best interest of the country, to limit certain kinds of political “speech” (or in other words, amounts certain entities could contribute to potential candidates and campaigns). The court thought otherwise.

We might analogize the articulation of political ideas in a market off free speech, to the production of widgets to a free market of goods and services. We have laws that both restrict and protect certain areas of commerce. Some protect the free market place, and act as economic lubricant, and others like the Sherman Anti-trust act, act as a means to restrict certain areas of free trade, in order to protect the integrity of the free market system.

In 1890, Senator John Sherman, a Republican from Ohio sponsored a bill that would in essence promote fair competition in the marketplace of goods. In order to do this, it imposed certain restrictions on legal relationships between corporations, called trusts. These trusts allowed large organizations with huge market clout to “corner” and “control”, or “monopolize” certain markets, at the detriment of competition, and the common good. These large entities engineered these legal relationships precisely to dominate and profit in their areas of influence. These instruments called trusts pushed potential rivals in the market place to the fringes, and blocked competition, creating an unbalanced and inherently unfair market place.

The Sherman Act, therefore, placed limits on what otherwise might have been described as a “free market”. But, since those who already had influence in the market were using their influence to create an atmosphere of inequality, government, or regulation was needed to balance the economic equation. This last point is an important one to understand. The law restricted, or regulated, the kind of business certain entities could participate in. It acted as a kind of market place mediator. The Supreme Court in a later case was quoted as saying, in support of the restrictions in the market place said…

"The purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself."

The kind of public detriment to certain markets was so severe, that it was commonly referred to as a public harm. Therefore, the restrictions placed on certain activities and organizations were seen as necessary for a fairer market place, and the protection of the common good. In the eyes of the law, restrictions equaled more freedom.

In politics, if money is speech, then more money is more speech. Our government is a representative form of government, and is supposed to represent all of us. In theory, this representative form of government should provide a level playing field to all of its’ citizens as it relates to access, in order for those citizens to participate equally. If money is access, or influence, it might be important for a marketplace of political ideas to be as level as possible –or limit the amount of money coming from some in relation to the rest of us. If there is a dominant group in this area, restrictions might be seen as a positive step much as the Sherman Anti trust act was seen as a means to protect a free economic market place.

Money in politics is used to market ideas and as stated before, acquire access and influence. Where the money comes from matters a great deal. The more a candidate receives from a single group or entity, the more he/she will feel obligated to that group or entity. That obligation may create a conflict between those entities interests and the interests of the general public. Therefore, in order for government to be as effective as possible, there needs to be as little “acute obligation” as possible. Any pollution of this ethic ensnares legislators in a web of compromise between special interests and general interests, creating a veritable monopoly of ideas for those with the greatest access, or in other words, those who are able to give the largest amounts of money.

The bulk of the decade’s nearly $10 billion in donations to federal candidates came from special interests and individuals associated with specific special interests who gave $200 or more. According to the Center for Responsive Politics, the top special-interest givers in the election cycles in this decade, generally in this order, were…
…the finance, insurance and real-estate industries; lawyers and lobbyists; miscellaneous business; ideological and single-issue donors; the health industries; communications and electronics; labor; agribusiness; energy and natural-resource interests; transportation; and the defense industry.
Corporations and individuals associated with these special interests donated more than $8 billion this decade to federal candidates. And the leader in campaign largesse for the decade and in each election cycle, at $1.62 billion, or more than 16 percent of all campaign contributions to federal candidates? The winner, by a wide margin, is the finance, insurance and real estate industries.

All of these numbers were acquired under McCain/Feingold. It is only reasonable to deduce these numbers will skew further in the direction of special interests and large organizations now that any and all restrictions employed under McCain/Feingold are now rendered impotent by the High Court.

It is as if the court eliminated any and all restrictions in the market place of political access and ideas, creating monopolies, at the detriment of the public. We may now be getting ready to witness a monopoly of ideas, which will in essence create a relationship based on mutual obligations between special interests and politicians, which, will likely create monopolies in the market place of goods and services too. The era of Democratic accountability may be over.

Corporations and special interests lost under the Sherman Anti Trust act, but now, they have won big under the courts current ruling. This is no more a loss for the Democrats than it is a win for the Republicans. This isn’t a partisan issue, unless of course, large entities represent one party more than others. Do they?

Only time will tell whether a completely “free market place of political ideas” is good for all of us. But one fact is clear. Under the new climate, access will be inherently unequal and unfair. There is now a political architecture in place that will create more Democratic inequality than at any other time in our history. If money is representation, we may no longer actually live in a democracy at all. Free speech in Politics may have been preserved, but at the expense of a free political marketplace. Apparently the court values speech over Democracy.