The progressive fallacy on free speech
When the Supreme Court overturned campaign finance law in Citizens United v. Federal Election Commission last month, civil libertarians and free-speech enthusiasts applauded. The ruling threw out limits on corporate “independent expenditures” on campaign advertising – the case in point being a hatchet-job documentary on Hillary Clinton produced by a non-profit corporation called Citizens United. Government censorship of political documentaries certainly seems to violate the very sinews of the First Amendment. “Congress shall make no law … abridging the freedom of speech” isn't very ambiguous, after all.
So I was caught off-guard when MSNBC’s Keith Olbermann called the Citizens United decision "a Supreme Court–sanctioned murder of what little democracy is left in this democracy." When others followed with similar howls of wounded outrage, I became aware of a gap in my understanding of the progressive Left. I suddenly realized that free speech for big business is to the Left what due process for alleged terrorists is to the Right: an unbearable burden that threatens freedom itself.
For most progressives, democracy is more than a mere instrument for throwing the bums out. Democracy is instead the embodiment of the liberal ideal of equal freedom. This sacred ideal is threatened, progressives argue, by concentrations of wealth that enable inequalities in political voice. If victory in the public sphere is determined by the size of one’s megaphone, then wealthy interests with large megaphones will capture the system and rig it to their permanent advantage. Consequently, megaphones must be regulated to ensure an equitable democratic process.
The case for regulation seems even stronger to Naomi Klein–style progressives, who fear the mind-warping powers of Madison Avenue. According to this line of thought, advertising is more hypnotic than informative, capable of seeding innocent minds with alien, false desires.
Thus for many progressives, the struggle for control of the mass media is a de facto struggle for democracy. If corporations are allowed to run riot over the airwaves, if commercial speech is not tightly controlled, we will lose our autonomy both as individuals and as a democratic people. Our public deliberations will be distorted by ideas that serve exclusive interests, and our puny individual voices will be drowned out by corporate foghorns.
But here’s the progressive conundrum: Unless measures to reduce inequalities of voice have already been built into the system, our compromised democratic process will deliver government that reflects and reinforces them.
Given the difficulty of using a broken system to fix itself, progressives have labored for generations to establish a corrective legal framework that would put a thumb on the scales and tilt the balance of persuasive power toward plain people and away from corporations. The trouble is, the First Amendment is written in stubbornly plain language. By honoring the simple letter of that law, the Citizens United decision dealt a crushing blow to this progressive project, leaving them wailing as if all were lost.
But all is not lost – even for progressives. Because the analysis driving their outrage is badly flawed.
First, progressives mischaracterize the nature of corporations. Corporations are not essentially villainous agglomerations of money and power. They are a convenient form of social organization that enables large numbers of people to undertake cooperative endeavors. Non-profit corporations, like Citizens United or the ACLU, provide individuals the opportunity to amplify their lone voices in harmony with like-minded others. Meanwhile, for-profit corporations are little more than lenders’ co-ops – a way for people to pool their resources to finance what look to be profitable lines of business. It is true that managers of corporations can -- and do -- take advantage of their owners and creditors. But there is a staggering number and diversity of for-profit corporations, and most of them, most of the time, do right by their stakeholders. Moreover, very few ever get involved in electoral politics in a significant way.
Which points to a second progressive error: the tendency to fixate on the high drama of elections rather than the more mundane processes by which corporate and other special interests actually do rig legislation and regulation in their favor. A single lobbyist with a good friend in the right place can deliver more to a special interest than many millions spent on campaign advertising. In 2009, $3.47 billion was spent on federal lobbying – a large sum, certainly, but not when you consider that the stimulus bill alone dispensed nearly $800 billion in public funds.
But the granddaddy of all progressive errors – the one that breeds all others -- is the assumption that greater government power can rectify the problem of unequal citizen power. Government can only act as a “countervailing force” in this regard if it is not acting already to serve corporate and special interests. But it is. That is why new government powers merely augment, rather than offset, the already disproportionate power of entrenched interests.
The biggest, baddest corporations, unions, and special interests already use government to exert power on their behalf. With the heft of the state behind them, they can swing sweetheart deals (witness earmarks) and they can foil upstart competitors (through regulation) who might otherwise eat their lunch. A government unhindered by limits retains the discretion to pick winners. A government that can make or break great fortunes invites a bruising and wasteful competition for its favor. It cannot be surprising, then, that those with the most -- thus most to lose -- assiduously seek favor from the state. It should not be surprising that those with powerful Washington connections are handsomely compensated by big special interests. And it should not be surprising when the well-connected exploit their relationships with people in power in the same way they maximize any other valuable asset.
Progressives are right to worry about corporatist government. But they locate the problem in the wrong place, which is why their proposed solutions repeatedly miss the target. It would be a great tragedy for democracy if a commonsense reading of the First Amendment’s protection of free speech truly undermined democratic freedom. Thankfully, it does not. Ultimately, the Citizen’s United case will change very little about how our political system works. Election-season speech was never the chief means by which special interests did their dirty work. But in some modest measure, the decision actually sets the right example. By limiting government power, it protects our freedom.