Would that the First Amendment actually said: “Congress shall make no law … abridging the freedom of speech, or of the press and centuries from now we solemnly trust these sacred rights will continue to prevail with appropriate application of wisdom and common sense pertinent to their context.”
Arguably, there would never even have been a need for Oliver Wendell Holmes to point out that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater.”
Of course it wouldn’t–unless free speech were an absolute. It absolutely isn’t.
Alas, the Founding Fathers were neither perfect–slave-holding and the old 3/5 rule were still a good 18th century fit–nor perfectly prescient–neither John Roberts nor Sheldon Adelson were foreseen.
We do the best we can in 2014 without channeling the enlightened but necessarily Fallible Fathers of 1789. Common sense isn’t specifically noted in the Constitution, but we preclude it at our own 21st century risk.
It would be societally embarrassing to add an amendment stipulating common-sense recourse, but a 28th Amendment settling the score on money and free speech would more than suffice. From Citizens United to McCutcheon, the democracy-devolving case is already being made.
Democracy for sale is a clear and present danger and results when the political arena morphs into the purview of billionaire ideologues and vested interests. “American exceptionalism” shouldn’t be disingenuous code for “money talks.”
It’s past time to just flat out say that money is not speech under the First Amendment, any more than corporations are not people. Of course, they aren’t. But it needs codifying, along with the right to limit what individuals and corporate entities can spend on elections, to pull us back from–especially–the Super PAC brink. The time for a common sense, common good, limits-on-obscene spending Amendment is upon us. Actually, the Moneyball era is engulfing us.
As Supreme Court Justice Stephen Breyer noted in his McCutcheon dissent: “…Today’s decision eviscerates our nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
This shouldn’t require an epiphany or the election of a Manchurian candidate.
To paraphrase Justice Potter Stewart, we know political speech when we hear it: “Roosevelt For Ex-President,” “Give ‘Em Hell, Harry,” “I Like Ike,” “Goldwater: ‘In Your Heart, You Know He’s Right,'” “Goldwater: ‘In Your Guts, You Know He’s Nuts,'” “Nixon Now, More Than Ever,” “Ross For Boss,” “Yes, We Can,” “NObama,” “Believe in America” and more than a few that wouldn’t be proper for a community newspaper.
The loudest, most effective election voices shouldn’t belong to those writing the biggest, most impactful checks. That was the intent of campaign finance laws dating back to the 1970s. Millionaires–now upgraded to billionaires–funding political machines was considered no way to underwrite the democratic process.
Fast forward 40 years. We’re not talking about contributing to a partisan cause by helping to build a website or to purchase some ad time. We’re talking about buying an election. As dollar figures continue to soar, the scenarios for compromised political integrity have been ratcheting accordingly.
Now we have Adelson, the Brothers Koch and others–enabled by media sophists equating limitless money dumps with First Amendment rights–approaching king-maker status.
And sometimes, ironically, individual candidate messages, however strategically negative, are overtaken by slick, mud-slinging PACS with macro agendas. Ask Alex Sink and Dave Jolly if they truly approved of every ad run on their behalf, notably the ones that turned their campaigns into off-putting, PAC-financed mosh pits.
That’s not good for America, not just Congressional District 13. No, a campaign-finance Amendment is no guarantee that American democracy will be on a consequent roll. But it beats being tethered to a bankroll.