Cash to Politicians is Free Speech. A Vote Isn't?

By skewing politics solely to the rich, the Supreme Court has lost legitimacy

If I send an envelope stuffed with cash to support a politician, that’s free speech. If I send an envelope stuffed with my ballot to support a politician, it’s not. That is the twisted world created by our current Supreme Court, the most illegitimate in modern times - and maybe ever.

In this topsy turvy world of conservative legal interpretation, giving $1 billion to an enterprise that claims to be a not-for-profit is allowed to hide its contributors because that is “central to the First Amendment’s meaning and purpose,” former Justice Anthony Kennedy wrote in the abomination decision in Citizens United v. FEC. And this is just one of a long string of rulings by conservative justices that flung open the door of democracy for manipulation by the very rich.

The chain of decisions that led to the current collapse of democracy exploded in 2007 in the case Federal Election Commission v. Wisconsin Right to Life, Inc. Technically - well, legally - groups that raise tons of cash from billionaires and millionaires are not supposed to coordinate with campaigns or target particular candidates. Here, the conservatives, led by Chief Justice John Roberts, allowed a ridiculous loophole that turned the standard to mush. A third-party campaign ad that specifically said, “vote for Congressman Smith,” was still a no-no, but “issue ads” that targeted specific politicians were fine. Utter nonsense. Instead of the magic words “vote for,” cash-rich groups could achieve the same goal under Roberts’ bunk. Say there is a long ad calling the science on climate change a hoax that attacks capitalism and cost millions of jobs, the ad is illegal if you say, “Congressman Jones supports that, so vote for Congressman Smith.” Instead, the ad can accomplish the exact same thing by saying “Call Congressman Smith and tell him you won’t stand for the climate change hoax destroying capitalism.” 

To Roberts - as opposed to real people - the difference was obvious. “Enough is enough,” he wrote. “Issue ads…are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them.” Yah, millionaires and billionaires have spent hundreds of billions of dollars on these things because they want to “educate” voters. What a crock.

The next year, in Davis v. FEC, the Court once again whined about poor, poor rich people whose voices can’t be heard. Seriously. The case went after the so-called Millionaire’s Amendment,” that tried to even things out for candidates for Congress who faced wealthy opponents. If rich candidates spent more than $350,000 of their own money on the race, then poorer candidates had the chance to be heard by letting them raise larger contributions until they reached parity with their wealthy opponents. Now, look at that rule: Both candidates could be heard, at the same level. Hell, rich people could contribute more to a middle-class candidate so both sides were equal. To the Supreme Court, an abomination. Almost certainly because the number of rich people financing their own races were almost exclusively running as Republicans, Justice Samuel Alito - the worst Supreme Court Justice in decades - once again cried about freedom of speech for the rich. “While [the law] does not impose a cap on a candidate’s expenditure of personal funds,’’ he wrote, “It imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.” Yah, it is absurd as it sounds. Money is speech but having equal amounts of money is abuse of the rich. 

Then in 2010 came the abomination, Citizens United. In what was easily the most absurd statement in any Supreme Court ruling dating back decades, Kennedy wrote, “The appearance of influence or access…will not cause the electorate to lose faith in our democracy.” Alito subsequently sneered at President Barack Obama when he criticized the decision as a dangerous on American democracy. 

Despite the court’s absurd assurance that little would change, the rich took over our democracy. The amount of money spent on politics exploded to more than $1 billion in the 2012 election, more than the total amount reported to the FEC for the thirty years beginning in 1980. America had become captive to a corporate kleptocracy.

The largest absurdity here is that the court of “originalists” made up rules that the Founders would not be able to comprehend. A nation full of millionaires and billionaires controlling elections? How do all these millionaires and billionaires exist? Corporate contributions - or as every Founder would say, “What is this thing called a corporation of which you speak?” Television ads and their impact on elections? Of course, not even close to be considered in the writing of the Constitution.

The Founders did know of many types of political speech - with voting being the most obvious. But not to a court that believes money supporting a candidate is free speech, while supporting that candidate with a vote is not.

The entire approach is absurd. “It seems like an obvious proposition that a citizen registering to vote or casting a ballot is engaging in free speech,” Armand Derfner and J. Gerald Hebert, two experts on law and voting wrote in Yale Law and Policy Review. “This simple proposition is especially fitting in light of the broad First Amendment protection extended to the dollars spent in political campaigns to influence votes. But the current Supreme Court rarely scrutinizes voting regulations as it does other speech regulations.”

Besides, if the Supreme Court ever declared that casting a ballot is political speech, their endless effort to gut the Voting Rights Act in cases like Shelby v. Holder would end. That would mean that the electorate would be allowed to vote without improper interference by states desperately working to throw up barriers to the ballot box. 

And, because the issue has nothing to do with protecting the rich, the court ignores that Americans are being blocked from expressing their political support for a candidate with their vote. A survey by the Brennan Center for Justice found that, from the time of the Citizens United decision to 2016, twenty-two states passed new voting restrictions, which demonstrably reduced the number of eligible voters and targeted poor and minority eligible voters. In 2021, in honor of the Big Lie, 19 red states enacted egregious attacks on voting rights to deal with “fraud” the legislators could not document as existing. This year, there have been so many efforts to cripple voting that it has hard to keep count, because new tactics are found every day.

From voting IDs that are skewed toward benefiting conservative voters to shutting down or moving polling places from areas that most likely attract Democratic voters, to culling out voter registrations from state lists while simultaneously restricting voter registration drives, to limiting early voting or voting on Sundays when large number of African Americans head to the ballot box through “Souls to the Polls” efforts, to shortening the time period for mail-in ballot requests and returns, to limiting drop box locations, to cutting hours for in-person voting on Election Day, to limiting third-party ballot collection and blocking any ballots received after Election Day — even if mailed in time. Hundreds of thousands of voters have been blocked from casting their ballot in Texas alone - the only means they have of expressing their political speech outside of shouting in the streets - based on bogus claims of voting fraud that simply does not exist. 

What kind of lies did the Supreme Court cite to justify these attacks on democracy? Look at just the voter ID issue, where there has yet to be legitimate example of in-person voter fraud marshaled by the anti-democracy crowd. In Crawford v. Marion County, Republican-appointed justice - including Roberts - saw nothing wrong with hundreds of thousands of people being disenfranchised even if the so-called fraud amounted to little more than a snipe hunt. 

How did the Court justify such a travesty? How else - they lied. The Court cited voter fraud in nine states, with eight of them involving other types of voter fraud, such as absentee ballot fraud and registering an ineligible person. (To learn more about absentee ballot fraud, see all the MAGA Republicans indicted in Florida for doing that.) The one event that did involve in-person fraud? It was in the late 19th century during the corrupt Tammany Hall era in New York when there was not even voter registration at all. One voter boasted that he had impersonated someone. Seriously, the Supreme Court has blocked hundreds of thousands of potential voters without IDs or the ability to easily get one because some guy two centuries ago impersonated someone during one of the corrupt periods in our nation’s history. Dishonest? Yup…in the Supreme Court I mean. 

The bottom line here is that real voters - not the wealthy - must fight and claw their way to the voting booth, to confront the hurdles, with every American election if we are to save democracy. It will not be easy, particularly with Republicans doing everything they can to push us into autocracy. And so long as their partners in crime, the Supreme Court, keeps giggling and laughing and helping their rich friends, we all remain under threat. The destruction of the Founders’ vision will be largely the fault of the Justices who feign being “Constitutional originalist” - what has emerged as the most dangerous and hoariest of lies in the 21st century.