It’s almost ironic how often republicans who adhere themselves to the strict language of the Constitution take the liberty to assert that when our founding fathers said “free speech,” what they really meant to say was “paid speech.” It is this unique take on democracy that has gradually, in small stabs and more recently, with the Citizens United Supreme Court ruling, in leaps, chipped away at the principle and practice of democratic representation in America.
The idea that corporations that possess a vastly disproportionate amount of resources and wealth while retaining protection of personal assets under the benefits of incorporation offends common sense and begs the question as to how corporations can be people when for every inch of rights and power that corporations gain, people lose an inch of theirs. This raises the issue not of when special interests’ freedom of expression begins and where individuals’ end, but when the rights of individuals are so suffocated that our First Amendment has become a tool used to defeat the populace it was meant to empower. The question now is how to even the playing field. The first step is aggressive campaign finance reform.
One of the biggest obstacles preventing the institutionalization of the kind of campaign reform we need right now is, as Matthew Yglesias, a Fellow at the Center for American Progress Action Fund notes, “it’s extraordinarily difficult to get money out of politics in a manner consistent with freedom of association and expression.” In essence, the First Amendment has become the double edged sword of American politics. In its absence, nations like Great Britain have regulations in place to prevent the abuse of association and expression. British campaign finance laws acknowledge that while it is nearly impossible to take money out of politics, it is much simpler to limit how much comes out by placing caps not on campaign donations, but instead on campaign spending. In the US, this type of reform would ensure that while corporations and the wealth of the 1% are able to buy candidates, so are the people themselves.
The problem with implementing this kind of regulation, however, is that it would require some very skillful legal tiptoeing around the First Amendment, but still far less skillful than convincing the Supreme Court that a business with no personal liability is a person. However, all paid speech is still not free speech, and current regulations on paid speech could be expanded to help compensate for the lack of much needed campaign finance reform.
The Federal Communications Commission (FCC) holds the power to impose fines and regulations on broadcasting companies that use public airwaves, such as requiring networks to air the State of the Union, limiting how much airtime can be used for advertisements during certain times and/or programming hours, or imposing fines for the use of profane words during specific programs.
The same guidelines could be used to limit how much air time can be dedicated to political advertisement, perhaps even by limiting the amount of money broadcasting networks are able to accept from political campaigns, effectively limiting a candidate’s ability to monopolize access to voters’ attention based on his donor’s monetary assets. It may not be a perfect solution, but in the long run, it will help curve the damage and corruption to our political and economic infrastructure if only a little more than disputing whether to fine CBS half a million dollars for Janet Jackson’s “wardrobe malfunction” during the Superbowl half-time show.
Without aggressive reform, as Harvard law professor Lawrence Lessig discusses in his recent book about campaign finance reform, Republic, Lost, Washington will continue to be dominated by a dangerous system of influence that leaves our representatives financially dependent on money from special interest and lobbying groups. Lessig proposes an amendment that would limit how much individuals can donate to candidates for federal office and where the candidates can accept money from. The problems with limiting input is that input can come from anywhere in any number of forms.
Even the most rigorous reforms on campaign donations would be unable to verify every donation and financial source of a candidate’s campaign. However, by placing spending limits on the campaign, the tedious work of affirming individual donations would become irrelevant, and instead, campaigns would be placed on a more even keel that would prevent one from overwhelming the other based solely on monetary resources. This would not prevent individuals from hosting fund-raising dinners any more than it would hamper special interest groups from financing television commercials, but it would force them to do it, in large part, themselves, and not through the campaign. This way, the group or special interest supporting the candidate would be forced to present their support openly to the public, affording a transparency that will allow voters to observe the special interest behind a candidate firsthand, be it a major pharmaceutical company, National Right to Life, or the American Federation of State, County and Municipal Employees (AFSCME).
In June of 2011, the Justice Policy Institute reported that private prison industries contributed more than $6 million to state politicians in an effort to influence and advance legislation that would put more people in jail. They succeeded with Arizona’s SA 1070, where 30 of the 36 legislators that co-sponsored the controversial immigration law that would increase incarceration rates accepted campaign contributions from private prison companies or lobbyists. Thereafter, the same private prison lobby became involved in efforts to push through legislation in Florida that would effectively privatize all of the prisons in South Florida.
In 2003, lobbying by pharmaceutical companies helped push through the Medicare Prescription Drug Improvement and Modernization Act, which not only prevents the government from negotiating the price of prescription drugs covered by Medicare with drug companies, but also put a new spin on the word “improvement” and made “modernization” a significantly more daunting term than it was in 2002. As a result, over 60% of government spending on Medicare prescription drugs results in direct profit for pharmaceutical companies, funneling public funds into private hands. According to the Center for Responsive Politics, the total political contributions from drug companies, biotech companies, and their trade associates totaled more than $110 million in just the first half of 2009. That adds up to more than $600,000 a day.
In the end, we, as a people and our government, must recognize and differentiate between “free” and “paid” speech. I do not profess to be nearly as well versed in constitutional law as a Supreme Court justice. However, aided only by a dictionary and my personal experience exchanging money for commercial goods and services, it seems flagrantly clear that “free” and “paid” are much closer to being diametric opposed concepts than they are to being synonymous.
I believe in the Constitution, not because it is perfect, perhaps not even because it can be, but because it is designed to be interpreted and applied to help us move forward and build a more perfect union, not a less perfect one. The Constitution represents more than its weight in paper, it is the law of a land built on a passion and righteousness that verged on boyish idealism. But it is perhaps, this same idealism, practical or not, that reminds us of what can happen when we lose sight of our rights and duties as citizens of the United States, to protect our democracy from within as well as from without.