If you have followed this election cycle then you know it is difficult to go a few days without hearing “Super PAC” this or “Super PAC” that. I have written before about the devastating effects of the Citizens United ruling and resulting creation of these super PACs, but there is legal reasoning as to why super PACs should be legal. In the court’s view persons, including corporations and unions, should be able to contribute unlimited amounts of money to super PACs. The court decided by limiting this right, a “person’s” free speech would be infringed. So this begs the question: Is money speech?
(Before I begin I want to make clear this is not a discussion about whether or not a corporation is a person. Although I do not believe a corporation should be entitled to the rights and responsibilities of people – that is a different Supreme Court ruling. )
Before we can begin a discussion of whether or not limiting campaign contributions is an infringement on the First Amendment, we have to break down the First Amendment to the Constitution. The First Amendment allows for the freedom of speech. If we make that leap, and say that “money” equals “speech”, freedom does not necessarily mean unlimited freedom (i.e., unlimited money or campaign contributions). First Amendment rights have historically been limited in many ways: we cannot shout fire in a crowded theatre nor can we say “bomb” on an airplane. Basically the courts have decided that if speech acts as a moral hazard to society then that particular speech is not protected by the First Amendment.
In other words, you cannot merely throw out the term “First Amendment” and logically conclude that every form of speech (or money) is magically swept under its magic cape. If we agree that there are limitations on the First Amendment (which, once again, the US Supreme Court has withheld and imposed many times over the past two centuries) there is a strong legal argument against the Citizens United ruling. By allowing corporations, unions and individuals to spend unlimited amounts of money for political purposes then we no longer have a democracy where each person has an equal voice and an equal say. Instead we have a system where the rich have a disproportional amount of the political sway in Washington and on K Street while the average American is left virtually voiceless
If spending money to influence elections is deemed equivalent to “speech” and therefore entitled to unbridled protection under the First Amendment, an argument can be made that this type of unencumbered spending (speech), does present a moral hazard. The Citizens United ruling has given a disproportionate voice to wealthiest Americans when it comes to influencing elections. The rich have been getting richer and middle and lower class citizens have seen stagnate wages. Since the 1980s the top one percent has seen their income rise by 273 percent compared to around 45 percent growth in the middle class. Further, those middle and lower class individuals have not been given a fighting chance to become wealthier because America’s social mobility (the ability to go from poor to rich) is the worst among developed countries –see here. So with the Citizens United ruling we now have a system where the already powerful now have more power and it is unlikely they will lose any of it.
Is it any wonder Washington caters to big business and special interest groups? Our politicians put these entities before the normal person. I feel a system that allows for entities to give unlimited amounts of money to Washington while the normal person cannot even conceive of donating that amount of money is an unfair system. It is a moral hazard. Just like you can’t shout fire in a movie theatre or say bomb on an airplane; corporations, unions and individuals should not be allowed to give unlimited sums of money towards political purposes.