A Tsunami of Filthy Lucre: How the Decisions of the SCOTUS Imperil American Democracy

Abstract

The Supreme Court of the United States---or more precisely, a bare 5--4 majority of the justices---rendered a decision in the now-infamous case of Citizens United v. Federal Election Commission. The legal particulars of this decision, together with its unmistakable aura, endorsed a First Amendment ``right'' of individuals and corporations to make unlimited expenditures in the attempt to influence the outcomes of elections. In the world of political campaign financing, this was a seismic event, producing a tsunami of filthy lucre. The decision was not, however, a legal outlier; it is the logical conclusion of a line of cases that begins with Buckley v. Valeo. In consequence, the critic must argue for the repudiation of the entire line. This I do. I argue that the Court has adopted a primitive theory of interpretation of the law, and its reasoning has relied completely upon a fatally flawed metaphor, the ``marketplace of ideas.'' I dismantle the metaphor, and argue for a superior theory of interpretation. The reasoning of the Court poses a threat to American democracy by impelling us towards ``representative plutocracy,'' proxy rule by Wealth. When properly understood, I argue, Freedom of Speech does not require this legal environment, which is nothing less than the philosophical self-evisceration of the First Amendment. When properly interpreted---as safeguarding the moral autonomy of the citizenry---Freedom of Speech requires the prohibition of these expenditures.