It's not a country for poor women either, of course, but I'm obviously mimicking the first line of the great poem by Yeats, and the title of the not quite as great but quite good movie, and so it must be. The country I refer to is our Great Republic, and this post is devoted to the Supreme Court's latest curious decision regarding the First Amendment, McCutcheon v. Federal Elections Commission. In that decision, the majority finds, once again, that the First Amendment requires that those with a great deal of money to spend in an effort to support the election of politicians and the success of political parties they prefer, and who want to spend it for that purpose, must be allowed to do so.
Not long ago, SCOTUS taught us that money is speech. That's not entirely clear to me, but what is clear and what has unquestionably been the case for much longer--a very long time indeed--is that money is power. Speech may be powerful, but money always is. Money is power because money allows us to do things and to buy things.
Among the things which may be bought with money is influence in politics, which is to say influence in the election of politicians and influence thereby on the making of political decisions. Speech may influence, but it cannot do so with the persistent and and overwhelming efficacy of money in a political system which is so entirely dependent upon the expenditure of money, which in turn requires the acquisition of money.
Money "talks" in this sense only. It isn't speech any more than it is a belief, thought or an idea, but it serves to contribute to the expression of particular beliefs, thoughts and ideas in such a manner as to assure their predominance. That is particularly the case where money is essential to the "selling" of beliefs, thoughts and ideas, as it is in these United States.
The majority of the court acknowledges, as it must, that even the right of free speech is subject to reasonable restriction. However, it apparently feels that money as speech cannot be restricted except in the very limited cases when it is used, directly, in obtaining a quid pro quo. Also, in a rather stunning statement under the circumstances, it asserts that its decision is required in order to foster the primary purpose of the First Amendment which is to protect the minority from the tyranny of the majority. Money as speech therefore may be restricted if it is a bribe. As a bribe, however, money is clearly not speech, as it is in that case something of value given to influence an official in the performance of a public duty. One is not "bribed" by speech.
So, apparently, money as speech may be restricted when it is not speech. This would seem to serve to raise questions regarding whether money is in fact speech. Can money when used to influence politicians be speech when a quid pro quo is not demanded, but not speech when it is demanded? If it is a thing of value in the latter case, why not the former?
But it also serves to establish what money really is in the context of politics. It is a means by which influence is obtained and exercised, regardless of whether we call it "speech." It's not possible to contend that the Justices of the Supreme Court are unaware of this fact. What SCOTUS seems to be saying is that when money is used to influence public officials, its use is improper, but only in limited and very specific circumstances. In other circumstances, it is protected by the First Amendment.
Perhaps the majority feels that the very rich, who are indeed a minority, must be free to contribute to politicians, political parties and political causes in a way others cannot in order to protect themselves from the very sizable majority who are not very rich. If so, the honest assertion of this view would be appreciated and even honorable, in a sense.
If that is their view, though, it would seem that the odd legal conclusion that money is speech is rendered unnecessary. But when it comes to influence, the rich have no problem getting their voices heard, but not through speech. Speech is not required for influence, but money most certainly is required. The influence of the rich will not be thwarted by that of the 99% by any means, and will never be thwarted by them, not because money is protected speech, but because money is spent.
In a system so dependent on money, speech strictly speaking is of little relevance or consequence. That would seem to be the primary problem with characterizing this as a First Amendment issue. It is one of power and influence, and where power and influence are concerned, the rich are substantially better equipped than the majority will ever be.
It's true that the rich have always been better able to influence, if not control, our politics than others. So that they continue to do so is not remarkable. What is remarkable to me, though, is the way in which the law is being used to support their influence. In the past influence was exercised more directly in one sense but also stealthily. We were less inclined to extol their influence, even inclined to downplay or hide it. That's no longer the case. Now we claim that their influence, indeed their greater influence, is required by the Constitution.
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