133. Anti-democracy

The Vermont campaign finance case has received relatively little attention.  That's a shame.  The Supreme Court has grievously injured American democracy on numerous occasions, and one of the really low blows came in the big favor the justices did for William F. Buckley's brother in 1975.  

In the wake of the Watergate scandal, when the public was eager to stop money from slopping around the political system like so much bilge water in a ship's hold, members of Congress enacted a comprehensive campaign finance reform act.  In the 178-footnote Buckley v. Valeo opinion, the Supreme Court struck down some but not all of reform act. 

The justices reasoned as follows:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.  This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. ...

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical, restraints on the quantity and diversity of political speech.

Because "virtually every means of communicating ideas in today's mass society requires the expenditure of money", therefore the expenditure of money is the communication of ideas.   In other words, because money talks, it's speech. 

Would you believe me if I were to say that the cord leading to your living room lamp is made out of visible light?  I can prove it.  Without the cord, the light bulb wouldn't glow.   Since virtually every means of producing artificial light in today's mass society requires the use of an electrical cord, therefore electrical cords are light.  QED.

In Buckley v. Valeo the  justices called Congress "naive" and then, in the very next paragraph, assured the American people that soft money could have no corrupting influence on congressional campaigns.  "We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify [the act's] ceiling on independent expenditures."  The staggering thing is that the justices may genuinely have believed they understood the influence of money on campaigns better than people who raised money for their own campaigns. 

The really revealing passage in Buckley v. Valeo was the following: 

In the free society ordained by our Constitution, it is not the government, but the people -- individually, as citizens and candidates, and collectively, as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign.

But what is the government in a democracy if not the people acting collectively?  By making a distinction between the government, on the one hand, and the people acting collectively, on the other hand, the justices denied the legitimacy of democratic government.

The justices were upholding this principle of anti-democracy when they ruled that the people of Vermont could not be permitted to control the political culture of their state.  And they uphold the same principle with every criminal case they decide in the name of the Constitution.  They reveal their mindset every time they refer to the prosecution as "the government," implying the judiciary is something else.  (See post 13 and post 39.)

The justices conceive of "the government" as something distinct from the people acting collectively.   And so, naturally, they conceive of police officers not as officers of the people but as instruments of that alien thing, "the government."  When you start from the premise that democracy exists in opposition to the demos, it makes perfect sense to treat the officers of a democratically-elected government as an occupying military force to be constrained by elaborate rules of engagement.  

One of the most enduring consequences of Buckley v. Valeo has been on the TV news.  This seems self-evident to me, though I don't recall seeing it pointed out elsewhere.  The decision gave television stations an enormous financial incentive to reduce news coverage of political campaigns.  It practically amounted to a government subsidy to curtail coverage.  After all, why give away free what they could sell for millions?  That,  in turn, helped produce the "money primary" that weeds out candidates long before the first vote is cast, and increased the effectiveness of negative advertising as the media disclaimed any responsibility to correct widely-disseminated smears, at least so long as they can be defended as arguably not-false.  (See post 65.)   It's now accepted that the responsibility for countering a smear rests exclusively with the smeared candidate, and he's a wimp if he lacks the funds to counter it effectively.  And so on, in ever-widening circles of consequences the justices were far too naive to have predicted, much less intended. 

The essence of the Vermont case is that the Supreme Court's monumentally ignorant invalidation of the post-Watergate campaign reforms must undoubtedly have been constitutionally correct, since otherwise the Court deformed American political culture for 31 years by mistake.  The actual experience of the past 31 years simply cannot be permitted to bring into question the Court's infallibility.