How and Why the First Amendment Became a Weapon for the Right

How and Why the First Amendment Became a Weapon for the Right

The Bosses’ Constitution

How and why the First Amendment became a weapon for the right.

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In an unusually stinging dissent from the final major ruling of the Supreme Court’s 2017–18 term, Justice Elena Kagan accused the Court’s conservative majority of “weaponizing” the First Amendment. In a string of recent decisions, she argued, these justices had turned the protection of free speech into an all-purpose tool for shredding democratic policy choices that they disliked.

The case was Janus v. AFSCME, and the majority had just announced that public employees could not be required to pay dues for a union’s collective-bargaining representation if they had opted not to join the union. For decades, workers who didn’t join a union were exempted from paying general union dues (used for organizing, political advocacy, and the like), but they were required to contribute money to those direct services, such as collective bargaining, that they had benefited from. In Janus, the Court ruled that such a requirement violated the First Amendment. Writing for the majority, Justice Samuel Alito contended that unions are always political: Even in collective bargaining, unions engage in political advocacy and so to pay for union services is a violation of an employee’s right to free speech.

Though couched in the neutral terms of the First Amendment, the Court’s ruling wasn’t just about free speech; it had clear partisan implications. The decision is likely to result in a hit to union coffers, both weakening workers’ power and dampening union support for Democrats and public spending. But as Kagan made clear in her dissent, the stakes were even higher. Over the last decade, the Supreme Court has used the First Amendment as a justification for slashing regulations and protecting private economic power. In 2010, the Court ruled in Citizens United that the First Amendment guaranteed corporations (as well as unions) the right to spend unlimited sums of money in support of political candidates. In 2011, the Court ruled that the First Amendment protected the sale of prescription data by pharmacists to drug companies, which used it to tailor their advertising to specific doctors. Invoking free speech, the Supreme Court and the lower federal courts have also struck down a series of limits on advertising for pharmaceuticals and tobacco products, including health-labeling requirements and a ban on cigarette advertising near schools. Scholars and lawyers worry that, if spending money and transferring data are forms of speech, nearly any transaction might be constitutionally protected in an economy where everything is information and everything is for sale.

Yet the weaponization of the First Amendment isn’t new. Citizens United has become notorious, but it merely extended a principle that the Court announced back in 1976 with its decision in Buckley v. Valeo, a ruling that gutted Congress’s post-Watergate attempts at campaign-finance reform. But what makes the weaponization of free speech by today’s Court so worrisome is that it’s only one part of a much broader pattern in which the Court has aimed its most aggressive jurisprudence against egalitarian redistribution and the interests of working-class Americans.

All of these rulings are part and parcel of the libertarian right’s attack on the redistributive state. But there is also a larger ambition at work here: to tilt the scales of capitalist democracy by hindering the capacity of democratic politics to reshape the market and assert the equality of citizens against the vast disparities of rich and poor. In so doing, the Court has recast the Constitution’s core principles of personal freedom, equality, and democratic accountability to entrench the power of employers and the wealthy. A Court that once advanced a modest but real egalitarianism by supporting desegregation, voting rights, and criminal-justice reform is now creating a Bosses’ Constitution.

Today, it is easy to see the conservative justices as part of a Republican apparatus: a right-wing legal movement, centered on the Federalist Society and running through the White House and the offices of key senators, that groomed Alito and Chief Justice John Roberts and is now in control of the Trump administration’s judicial appointments. But the roots of an anti-redistribution, market-protecting Constitution are older than today’s conservative legal movement. The Bosses’ Constitution emerged at the end of, and in reaction to, the three decades after World War II of widely shared growth and expanded social protections, with the flattest distributions of wealth and income the country had ever seen and a strong role for organized labor in managing and benefiting from the national economy. For the center-right, these decades of growing equality presented a threat: Wages, public spending, union power, and bureaucratic regulation were undermining profits and free enterprise. Economist-publicists like Friedrich Hayek and Milton Friedman argued vigorously for cutting back the power of unions and of government redistribution programs to preserve market discipline and the libertarian freedom to invest in businesses and to hire and fire workers. Business elites listened, along with a new generation of corporate lawyers, who have always been the single greatest power center in the legal profession.

In a 1971 memo to the US Chamber of Commerce, future Supreme Court Justice Lewis Powell—then a lawyer practicing corporate law in Virginia—captured the spirit of the decade’s libertarian turn. Favorably citing Friedman and calling on American business to make a full-court press for “the preservation of the system [of free enterprise] itself,” Powell adopted Hayek’s signature argument that “the threat to the enterprise system…also is a threat to individual freedom…. Freedom as a concept is indivisible. As the experience of the socialist and totalitarian states demonstrates, the contraction and denial of economic freedom is followed inevitably by governmental restrictions on other cherished rights.”

A few months later, Powell was nominated by Richard Nixon for a seat on the Supreme Court. In 1973, Powell wrote the opinion in which the Court ruled that there was no constitutional protection for the poor, and no violation of equal protection when school-funding schemes mandated wildly different levels of funding in rich and poor neighborhoods. In 1976, his fellow Nixon appointee Harry Blackmun wrote the first opinion using free speech to protect commercial advertising, setting up the Court’s later rulings protecting tobacco and pharmaceutical ads from regulation. (A prescient dissent by the hardheaded conservative justice William Rehnquist conjured up a dystopia of ads pitching drugs for pain and anxiety—exactly the world we live in now, in which drug companies have fueled the opioid crisis.)

The same year that the Court ruled that commercial advertising deserved constitutional protection as speech, it also issued a per curiam (unsigned) ruling in Buckley v. Valeo, which held that wealthy individuals, including candidates, could spend unlimited amounts on campaign ads, and that caps on total spending by political campaigns were also unconstitutional—a decision guaranteeing that wealth would translate directly into campaign speech. In 1978, Powell wrote the first opinion in which the Court subjected affirmative action to “strict scrutiny,” its most aggressive review, setting in motion the steady erosion of an imperfect but important tool for mitigating racial inequality. By the end of the decade, the Court had declared economic inequality to be constitutionally benign and commercial advertising to be protected speech, and it also ruled that the Constitution forbade many of the efforts to check economic power and racial inequality through policies like campaign-finance laws and affirmative action.

The link between Powell’s memo and the Supreme Court’s turn in the 1970s wasn’t a conspiracy, except in the sense that all political organizing is a kind of open conspiracy. It was, however, very important ideological work. At any time in US history, the Constitution’s principle concepts—liberty, equality, political accountability—have the meanings that judicial interpretation assigns to them. These interpretations—even when they’re styled “originalist”—always respond to the political movements, crises, and felt imperatives of the times, as inflected by the elite lawyers who populate the Court.

This was true of the Warren Court, which left its mark on the civil-rights era by desegregating public life, guaranteeing meaningful protections for the criminally accused, and making the principle of “one person, one vote” a part of US law for the first time in history. It was true as well of the justices in the New Deal era, who offered a legal basis for a powerful regulatory state and pro-union labor law that earlier Courts had persistently undermined. And it was also true of the justices of the 1970s, who, though they might not have put it as vividly as Powell did, saw their job as protecting constitutional liberty by pushing back against the power of the state to redistribute wealth and influence.

This new generation of justices insisted that their project was neither partisan nor ideological, but in effect it was both. At a time when the Democrats held the House and the Senate, the goal of this jurisprudence was to prevent lawmakers from entrenching themselves and their allies in power—in particular the unions and minority groups that were key Democratic constituencies.

The way to stop this was by limiting lawmakers’ power to distribute privileges, and above all to prevent whoever was in power from tilting future elections toward their preferred successors. The post-Watergate effort to get money out of politics, these justices argued, favored the parties and candidates who could muster large volunteer networks (which tended to be the Democrats and unions), and it curtailed the influence of outsiders (which tended to be businessmen and financial elites keen to get involved in politics) who used their money to break into the mix. As far as these justices were concerned, this looked like picking winners—no matter that their rulings wound up stacking the deck for the wealthy.

The justices’ prescription for heading off favoritism and entrenched interests mirrored some of the core ideological commitments of democracy-skeptical libertarianism. They treated politics as if it were one more market, in which spending and advertising were simply ways of expressing arguments. The Court’s opinions portrayed voters as reasoning like the idealized consumers in rational-choice theory, considering their options (with help from the ever-informative advertisers) and making the decisions that best served their interests. In a literal free marketplace of ideas, political spending would preserve (as the Court put it in Buckley) “a republic where the people are sovereign.”

Of course, this worked mainly to the benefit of one party and not the other. And it worked even more clearly to the benefit of the wealthy, who could now leverage their economic power to influence the political “market.” And that’s exactly what’s happened: Since the 1970s, the Supreme Court’s campaign-finance decisions have helped keep wealth at the center of political influence, while its decisions on education spending, poverty, and race have helped protect the nation’s growing inequality from egalitarian disruption. This jurisprudence has also made it harder for those from outside circles to run for office. Politics in America has become the province of the rich: Today, less than 2 percent of members of Congress entered politics from blue-collar jobs, and at least 50 percent, according to one estimate, are millionaires.

American politics has always been profoundly divided along class lines. Today’s disproportionate representation of the wealthy amplifies this. Since 1980, we have seen substantial cuts in public higher education, a growth in income inequality, the stagnation of wages, and a halving of the top marginal tax rate. The cost of class entrenchment is a Bosses’ Republic.

The influence that wealth exercises over politics is not a matter of bribes, but rather structural and social. It is structural because many lawmakers are either white-collar professionals or wealthy, and also because the high cost of political campaigns requires constant infusions of money, and politicians and their staffers cannot afford to forget who has it. It is social because, thanks to the structural intertwining of money and power, those who hold power know, listen to, care about, and identify with those who have money—that is, people like themselves.

The gap between the reality of class entrenchment and the Supreme Court’s rhapsodizing about political spending as the heart of self-rule is what makes the weaponized First Amendment ideological in the worst sense. This jurisprudence actively obscures how class entrenchment in America’s legislative branch poses a threat to democratic self-rule. By doing so, it also deepens the problem, both by denying the existence of the basic conflict in capitalist democracies between organized money and organized people, and by taking a side in that conflict to protect and increase money’s power.

Despite the Court’s high-minded ideas about letting the people rule, there is no such thing as genuine neutrality when it comes to the interaction between economic and political power. There are only various rules for relating the two, from banning all private money in elections (one extreme) to treating elections as markets (the other). The United States right now is pretty close to the second extreme.

What progressives need to formulate in response is a constitutional vision of their own that takes economic power seriously and puts democratic power first. Democratic power is the means to foster dignified, secure lives in a community of relative equals. It does this by ensuring people what they need—health care, education, shelter, work, rest—and constraining the economic power that makes them vulnerable to insecurity and deprivation.

Democratic power can achieve this only by doing precisely what the weaponized First Amendment prohibits: actively shaping the terrain of political contests, in campaigns and unions and advertising, not to silence the wealthy per se, but to put them under the same rules as everyone else. This should be part of a larger vision of constitutional equality that would strengthen the right to vote and challenge racially disparate policing and incarceration. Its heart should be the power to make democracy itself more democratic by controlling the power of wealth.

As the Court noted in 2008, “making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election” is a dangerous business, but dangerous is not the same as optional. Either democratic majorities will make decisions about the basic workings of our democracy, or those decisions will be made implicitly through the translation of economic power into political power. The first tack can be risky. The second, from the point of view of democracy, can be worse.

Distribution—both of the material goods of a society and of political power—is not an issue that a capitalist democracy can somehow avoid with the right constitutional formula. The questions of who gets what and who has the power to do what will be answered one way or another, and by one group or another. Redistribution is simply the word for giving real democracy a chance against the false neutrality of the Bosses’ Constitution.

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