Laissez-Faire and Political Speech: The contradictions of campaign finance reform

The U.S. Supreme Court ruled in favor of corporations today, striking down a prohibition on direct corporate funding of advertisements in favor of or opposing political candidates.

In ruling that “First Amendment protections do not depend on the speaker’s ‘financial ability to engage in public discussion,'” the Court held that the Bipartisan Campaign Reform Act of 2002 infringed the speech rights of a particular class of associations of wealthy individuals. To wit, “the Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers.”

Numerous commentators have warned that this will open the floodgates to unrestricted corporate influence in political campaigns. (UPDATE: see Glenn Greenwald about constitutionality and undesirable outcomes.) In writing that “political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws,” the Court pointed out that even without this ruling, the wealthy would continue to find loopholes, and would continue to exercise a disproportionate influence on campaigns. (UPDATE: Glenn Greenwald comments on this as well; see also Juan Cole; Heather Gerken warns about a changed definition of corruption; Chris Hedges points to larger implications.)

The real problem here is a presumption of equality between the speech of the wealthy and that of the poor. As we have so vividly observed over the first year of the Obama administration, larger amounts of money can purchase mass media access–and therefore, influence–which smaller amounts of money cannot. Access to these huge amounts of money is an effective price of admission to political power. So a laissez-faire approach effectively limits the range of ideas in political discourse and the number of candidates for political office. It functions not as free speech is intended, that is to enable the fullest consideration of a wide range of ideas, but rather to protect the already moneyed status quo.

In effect, by removing any restrictions, the Court itself has committed what it has recognized as a “constitutional wrong,” covered only by the fig leaf of not explicitly “identif[ying] certain preferred speakers.” But media scholars cannot be so easily deceived. To us, the Court’s decision, even by omission, identifies and prefers associations of the wealthy which enable them to pool ever larger sums of money.

But the Court’s decision also repudiates a flawed approach, one which could never succeed in fulfilling the fundamental reason for freedom of speech. As I explained to my public speaking students, a political system is best served when it allows itself to consider the widest possible range of options, to hear dissent that urges it to correct its course, and when everyone feels they have a voice. This decision does not relieve the handicap of poverty in political representation. If, however, in the present climate of popular distrust aimed at big corporations and wealthy interests, it provokes a wider discussion of what substantial campaign finance reform actually means, the Supreme Court decision will have been a service, albeit one the right-wing Justices who prevailed today are unlikely to have intended.

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