the market metaphor, radicalized: how a capitalist ... · the market metaphor, radicalized: how a...

The Market Metaphor, Radicalized:How a Capitalist Theology Trumped Democracy

Timothy Kuhner

ABSTRACT

An entanglement between economic and political thought stands as a causal factor behind Trump’s 2016victory. Enshrined as constitutional law, this way of thinking allows wealth, whether a candidate’s per-sonal wealth or the wealth of her supporters, to serve as a requirement for mounting a viable campaign(and for maintaining one beyond its natural life cycle). It also allows vulgar, misleading, and hatefulspeech to play as large a role as a campaign or its supporters desire. Plutocracy and illiberal populismare among the reasons to revisit the Supreme Court’s longstanding use of a market metaphor to ascertainthe First Amendment’s demands. Now an unstable and politicized facet of constitutional interpretation,the ‘‘marketplace of ideas’’ demands attention. In the space of forty years (Buckley v. Valeo to McCutch-

eon v. FEC), the Court moved from (a) an open marketplace as a metaphor for a robust speech environ-ment that would lead to democratic responsiveness and public welfare, to (b) an unregulated marketplaceas a system justified in its own right, not as means to a democratic end, much less as a mere metaphor.This doctrinal transformation from the Burger and Rehnquist Courts to the Roberts Court explains theroots of the deregulatory turn in campaign finance, justifies government accountability to large donorsand spenders, and casts light on the potential for an illiberal, kleptocratic presidency today. In theend, however, it is not the market metaphor itself that has made democracy so vulnerable. The metaphorcould be repurposed or simply reclothed in its original civic garb. What must be exposed and countered,rather, is the Roberts Court’s radicalization of the metaphor, which springs from a theological, even theo-cratic, devotion to laissez-faire ideals.

Keywords: campaign finance, McCutcheon v. FEC, Citizens United, marketplace of ideas, plutocracy,neoliberal jurisprudence

The 2016 election demands an inquiry into theConstitution’s orientation to democracy. Whether

the focal point is the irony of an electoral system thathands the presidency to a candidate who lost the pop-ular vote by nearly three million votes1 or the sudden,brazen decline in voting rights following the Shelby

County decision,2 the same conclusion obtains: democ-

Timothy Kuhner is an associate professor at Georgia StateUniversity College of Law in Atlanta, Georgia. Mr. Kuhnerthanks Harry Hirsch for comments. An early version of this ar-ticle was presented at the 2016 Annual Meeting of the AmericanPolitical Science Association on a panel entitled ‘‘The FirstAmendment in a Diverse Age.’’

1See Presidential Results, CNN Politics (last updated Dec. 20,2016), <http://edition.cnn.com/election/results/president>.2Within just one year of the Supreme Court’s 5–4 decision inShelby County v. Holder, 133 S. Ct. 2612 (2013) (strikingdown Section 4(b) of the Voting Rights Act and immobilizingthe preclearance requirements in Section 5), many states and mu-nicipalities have passed stricter laws. See Thomas Lopez, ‘‘ShelbyCounty’’: One Year Later, Brennan Center for Justice (June24, 2014), available at <http://www.brennancenter.org/analysis/shelby-county-one-year-later>. Most states that led the nation inAfrican American and Latino turnout, as well as most of the statesthat had run afoul of Section 5 before, enacted laws making itharder to vote. See Wendy R. Weiser, Voter Suppression: HowBad? (Pretty Bad), American Prospect (Oct. 1, 2014), avail-able at <http://prospect.org/article/22-states-wave-new-voting-restrictions-threatens-shift-outcomes-tight-races>.

ELECTION LAW JOURNALVolume 16, Number 1, 2017# Mary Ann Liebert, Inc.DOI: 10.1089/elj.2016.0402

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racy has been undermined. And because the Constitu-tion, or its interpreters, contemplated and allowed thesethings,3 three words must be added: Democracy hasbeen undermined pursuant to law. That paradoxicaljuxtaposition between the law and what we take tobe our system of government becomes still more pro-nounced when we move backwards from the vote tothe factors that conditioned the vote.

Consider, for example, the aberrations and abom-inations that influenced the election from beneaththe First Amendment’s protective shield: Trump’suse of Twitter to intimidate and bully his oppo-nents;4 vulgar, racist, and xenophobic claims andslogans made by Trump and his supporters;5 ‘‘paidhuman ‘trolls’’’ mining the Internet and intimidat-ing people who were expressing their genuineviews;6 foreign and domestic fake news entrepre-neurs spreading falsehoods (or unknowables) thatcaptivated the imaginations of many citizens;7 andthe polished hate speech of the alt-right.8 Althoughthe Russian hackers who targeted Clinton’s cam-paign for embarrassment will find no legal refuge,a great deal of political speech unfolded from thatcolossal violation of American sovereignty.9 Themedia happily received and capitalized on Gucifer’sdata dumps.10 This truly was an open market for po-

litical speech: intimidation, race baiting, sexism,xenophobia, trolls, fake news, white supremacists,and Russians!

In light of such elements, would any 2016 elec-tion observer subscribe to Harold Laski’s 1919faith that it ‘‘is in the clash of ideas that we shallfind the means of truth’’ and that ‘‘[t]here is noother safeguard of progress’’?11 Or is it more likelythat Trump’s controversial ideas, delivery, and alli-ances stoked illiberal populism on American soil?Progress or the predicate for the first authoritarianU.S. presidency? And regardless of how things ulti-mately play out, why must the First Amendmentforce democracy to risk its own existence?

The First Amendment’s penchant for stress test-ing democracy has been equally clear in campaignfinance, an area of law that does far more thanmerely condition or affect the vote. In practice,the lack of meaningful public financing and thefree market for campaign spending and outsidespending circumscribe the vote to the universeof candidates who are independently wealthy,have wealthy supporters, or who succeed—againstthe odds—in raising exorbitant funds from smalldonors. Although it is a good place to look for in-

sights into the First Amendment’s suicidal tenden-cies in matters of falsehoods, hate, and illiberalpopulism, campaign finance jurisprudence raisesits own independent dangers. Here the open mar-

ketplace becomes overtly financial in nature, asevidenced by the choice voters faced in 2016.

First, voters could choose the standard option: in-terest group plutocracy, as embodied by a Washing-ton insider who benefitted from tens of millions of

3On the Electoral College, see U.S. Const. art II, x 1 and U.S.Const. amends. XII and XXIII.4See, e.g., Ben Kamisar, Trump Tweets Stir Debate on Intimida-tion, The Hill (Dec. 10, 2016), <http://thehill.com/homenews/campaign/309695-trump-tweets-stir-debate-about-intimidation>.5See, e.g., Jonah Goldberg, Just Because Trump Is ‘‘Anti-PC’’Doesn’t Mean We Should Celebrate His Vulgarity,’’ National

Rev. (Jan. 30, 2016), <http://www.nationalreview.com/article/430530/donald-trump-vulgarity-pc-excuse>; David M. Halb-finger, Profanity, Vitriol, Slurs: Why the Times PublishedUnfiltered Trump Rally Video, N.Y. Times (Aug. 5, 2016),<http://www.nytimes.com/2016/08/05/insider/profanity-vitriol-slurs-why-the-times-published-unfiltered-trump-rally-video.html?_r=0>.6See, e.g., David French, The Price I’ve Paid for OpposingDonald Trump, National Rev. (Oct. 21, 2016), <http://www.nationalreview.com/article/441319/donald-trump-alt-right-internet-abuse-never-trump-movement>; Craig Timberg, Rus-sian Propaganda Effort Helped Spread ‘‘Fake News’’ DuringElection, Experts Say, Wash. Post (Nov. 24, 2016), <https://www.washingtonpost.com/business/economy/russian-propaganda-effort-helped-spread-fake-news-during-election-experts-say/2016/11/24/793903b6-8a40-4ca9-b712-716af66098fe_story.html?utm_term=.4d660a576d1a>.7See, e.g., Andrew Higgens, Mike McIntire, and Gabriel J.X.Dance, Inside a Fake News Sausage Factory: ‘This Is All AboutIncome, N.Y. Times (Nov. 25, 2016), <http://www.nytimes.com/2016/11/25/world/europe/fake-news-donald-trump-hillary-clinton-georgia.html>; Elizabeth Williamson, Fake News Brings a Gun-man to Washington, N.Y. Times (Dec. 5, 2016), <http://www.nytimes.com/2016/12/05/opinion/fake-news-brings-a-gunman-to-washington.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=0>.8See, e.g., Terry Collins, ‘‘Alt-right’s’’ Spencer Is Back on Twit-ter. Is Hate Speech Too?, CNET (Dec. 13, 2016), <https://www.cnet.com/news/richard-spencer-twitter-alt-right-hate-speech>;T.A. Frank, How the Alt-Right Became the Party of Hate,Vanity Fair (Aug. 31, 2016), <http://www.vanityfair.com/news/2016/08/how-the-alt-right-became-the-party-of-hate>.9See, e.g., Eric Lipton, David E. Sanger, and Scott Shane, ThePerfect Weapon: How Russian Cyberpower Invaded the U.S.,N.Y. Times (Dec. 13, 2016), <http://www.nytimes.com/2016/12/13/us/politics/russia-hack-election-dnc.html>; Eric Liptonand Scott Shane, Democratic House Candidates Were AlsoTargets of Russian Hacking, N.Y. Times (Dec. 13, 2016),<http://www.nytimes.com/2016/12/13/us/politics/house-democrats-hacking-dccc.html>.10See Lipton and Shane, supra note 9.11

Harold Laski, Authority in the Modern State 279–80(Lawbook Exchange 2003, Yale University Press 1919).

THE MARKET METAPHOR, RADICALIZED 97

dollars from Wall Street speeches (mostly to tradegroups, financial services groups, and governmentcontractors),12 over $500 million from large do-nations to her campaign and hundreds of millionsmore to her associated committees, over $200million of super PAC (political action committee)spending,13 and, initially at least, from ClintonFoundation ties.14 As interpreted by the SupremeCourt, the First Amendment forbids limitationson campaign spending and outside expenditures,including those fueled by corporate general trea-sury funds—hence Clinton’s and her allies’ freespeech right to amass and spend a $1.4 billionwar chest.15

Or, instead of the standard plutocracy of large do-nors, super PACs, and interest groups, voters couldchoose the personal plutocracy of a wealthy busi-nessman whose lavish self-funding pales in compar-ison to what his global business holdings stand togain from his presidency.16 The Court has also inter-preted the First Amendment to prohibit limitationson candidate expenditures from personal funds—hence, Trump’s free speech right to spend $65 mil-lion of his own money on his campaign.17 Although,in the end, Trump’s presidential bid was supportedby over $850 million of others’ money, his personalexpenditures allowed his campaign to survive sev-eral financial droughts.18

Adjusted for inflation, Ross Perot’s $64 millionin personal expenditures in 1992 topped Trump’s,and Steve Forbes’ $37.4 million in 1996 cameclose.19 Romney’s $44.7 million in 2008 also de-serves mention, as does Hillary Clinton’s own$13.2 million in 2008.20 Still, Trump is the onlyone of these plutocrats to actually win the presi-dency. His endless list of conflicts of interest andinitial actions as president-elect prove a clear andimmediate threat of kleptocracy—a system of cor-ruption embodied by a ruler who enriches himself(or his family) by tailoring law, policy, and discre-tionary action to benefit his own financial interests,generally at tremendous cost to the public, demo-cratic institutions, the economy, and outside par-ties.21 In short, ‘‘the ‘kleptocratic state’ exists tomaximize the welfare of its ruler.’’22

The fact that Congress limited presidential self-financing to $50,000 in 1974 has gone unnoticeddue the Supreme Court’s rapid destruction of thelaw. Ignoring the potential for a wealthy self-funderto use elected office to enhance his or her businessactivities or investments, the Court instead extoled

self-financing because it ‘‘reduces . dependenceon outside contributions and . counteracts the co-ercive pressures and attendant risk of abuse.’’23

Trump applied this reasoning to himself on Twitter:‘‘By self-funding my campaign, I am not controlledby my donors, special interests or lobbyists. I am

12Since resigning as secretary of state, Clinton herself received$21.7 in speaking fees from vested interests actively engaged inlobbying the federal government. See Lindsey Cook, Here’sWho Paid Hillary Clinton $22 Million in Speaking Fees, U.S.News (Apr. 22, 2016), <http://www.usnews.com/news/articles/2016-04-22/heres-who-paid-hillary-clinton-22-million-in-speaking-fees>. As a couple, the Clintons raised far more. See RobertYoon, $153 Million in Bill and Hillary Clinton Speaking Fees,Documented, CNN (Feb. 6, 2016), <http://edition.cnn.com/2016/02/05/politics/hillary-clinton-bill-clinton-paid-speeches/>.13For a breakdown of both candidates’ war chests, see MoneyRaised as of November 28, Wash. Post, <https://www.washingtonpost.com/graphics/politics/2016-election/campaign-finance/>(last visited Dec. 22, 2016).14For a biased but nonetheless astute analysis, see MattRhoades, How the Clinton Foundation Brought down Hillary’sCampaign, N.Y. Post (Nov. 17, 2016), <http://nypost.com/2016/11/17/how-mitt-romneys-campaign-manager-took-down-hillary/>.15See Money Raised as of November 28, supra note 13.16See, e.g., Richard C. Paddock et al., Potential Conflicts of Inter-est around the Globe for Trump, the Businessman President, N.Y.Times (Nov. 26, 2016), <http://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html>.17See Buckley v. Valeo, 424 U.S. 1 (1976).18For a breakdown of Trump’s campaign financing, see MoneyRaised as of November 28, supra note 13.19See Melissa Yeager, The Trump Question: How Do Self-Financing Candidates Fare in Elections?, Sunlight Founda-

tion (Aug. 28, 2015), <http://sunlightfoundation.com/2015/08/28/the-trump-question-how-do-self-financed-candidates-fair-in-elections/>.20Id.21See, e.g., Emmanuel Onyemaghani Owah, Government

of the Crooks, by the Crooks, for the Crooks (2011) (de-fining kleptocracy as ‘‘government by those who seek . per-sonal gain at the expense of the governed’’ and includingwith its ‘‘typical characteristics’’ ‘‘concealment of illegalgains [and] instability of political or economic agenda’’). Thismuch was foreshadowed by Trump’s campaign payments of$12.5 million to his businesses and family members, and wasalready initiated by Trump’s and his family members’ politicalmaneuvering to suit their businesses during Trump’s campaignand his status as president-elect. See Drew Griffin et al., TrumpPaid $12.5 Million to His Own Businesses During Race, CNN(Dec. 16, 2016), <http://money.cnn.com/2016/12/16/news/companies/donald-trump-campaign-fec/>, and Potential Con-flicts of Interest around the Globe, supra note 16.22Joshua Charap and Christian Harm, Institutionalized Corrup-tion and the Kleptocratic State, IMF Working Paper (July 1,1999), available at <https://books.google.es/books?id=-rw49w8xcaQC&pg=PT13&dq=Kleptocracy&hl=en&sa=X&ved=0ahUKEwip6eGPtIfRAhXDnRoKHRc9B_kQ6AEINzAF#v=onepage&q=Kleptocracy&f=false>.23Buckley v. Valeo, 424 U.S. 1, 51–54 (1976).

98 KUHNER

only working for the people of the U.S.!’’24 Butwhat about a self-funder’s dependence on his ownwealth and subsequent indebtedness to himself?What about coercive pressures and risks of abuse em-anating from their own financial activities, personalincentives, and ostensibly warped view of the rela-tionship between business and state? Coercive pres-sures and risks of abuse from within the highestechelon of political leadership ironically evaded theSupreme Court in 1976, a moment when democracywas a minority position, globally speaking, and abu-sive forms of government were the norm.

Rather than exploring the dangers of financial self-dealing or the inequality inherent in allowing wealthycandidates to spend unlimited quantities of personalwealth on their own campaigns, the Court focusedon the benefits: ‘‘it is of particular importance thatcandidates have the unfettered opportunity to maketheir views known so that the electorate may intelli-gently evaluate the candidates’ personal qualitiesand their positions on vital public issues.’’25 It usedthe word ‘‘unfettered’’ as a term of art. The term func-tioned quite simply to produce unlimited spending,thereby empowering wealthy candidates. But theterm’s legal standing derives from nothing less thanthe Court’s traditional explanation for why the FirstAmendment affords such broad protection to politicalexpression: ‘‘to assure (the) unfettered interchange ofideas for the bringing about of political and socialchanges desired by the people.’’26

But how can unfettered money, unfettered hate, orunfettered confusion of the fake-news and trolling va-rieties bring about the changes desired by the people?We are faced with a modern-day puzzle. Why mustthe Constitution—via the Court—endanger democracyso? Does the Court believe that illiberal populism,the longstanding reality of American plutocracy,or the threat of developing-world kleptocracy willbring about the changes desired by the people, orthe ‘‘means of truth’’ and ‘‘safeguard of progress’’ al-leged by Laski? Or have the Court’s goals for freespeech changed? Campaign finance law providesan intriguing answer to these timely questions.

INTRODUCTION AND STRUCTUREOF THE ARTICLE

Over the nearly one hundred years since JusticeHolmes’ dissenting opinion in Abrams v. U.S.,27

the First Amendment’s freedom of speech clause

has taken on the function of protecting a market-place of ideas from government interference.28

The ideas at issue in Abrams were not for sale, how-ever. The petitioners had been convicted of seditionfor distributing leaflets opposing U.S. interventionin the Russian Revolution. Indeed, many landmarkcases since analyzed by courts in marketplace termsdid not involve government regulation of commer-cial activity.

When Justice Holmes proposed notions of tradeand economic competition as First Amendmentguideposts, he did not have would-be speech pro-ducers or purchasers in mind. Rather, he and JusticeBrandeis, who joined the opinion, proposed themarket as a metaphor for a quintessentially demo-cratic activity: the search for truth.

When men have realized that time has upsetmany fighting faiths, they may come to be-lieve even more than they believe the veryfoundations of their own conduct that the ulti-mate good desired is better reached by free

trade in ideas and that the best test of truthis the power of the thought to get itself ac-cepted in the competition of the market, andthat truth is the only ground upon whichtheir wishes safely can be carried out. Thatat any rate is the theory of our Constitution.29

With those words, Holmes and Brandeis launched aprescriptive model for how the First Amendment’sfree speech clause should be construed and under-stood: to guarantee free trade in ideas, to ensurethat all speakers and thoughts may compete in themarket, and, thus, by protecting the market fromregulation, to maintain the best possible systemfor accommodating opposing viewpoints, allowing

24Quoted in David A. Graham, The Lie of Trump’s ‘Self-Funding’ Campaign, The Atlantic, May 13, 2016, <http://www.theatlantic.com/politics/archive/2016/05/trumps-self-funding-lie/482691/>.25Buckley, 424 U.S. at 52–53.26Id. at 14.27Abrams v. United States, 250 U.S. 616, 630 (1919).28See, e.g., Davenport v. Washington Educ. Ass’n, 551 U.S.177, 188 (2007) (discussing ‘‘the risk that content-based dis-tinctions will impermissibly interfere with the marketplace ofideas’’). The marketplace metaphor is prevalent in a host ofFirst Amendment areas, including intellectual property, free-doms of the press, hate speech, and campaign finance.29Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes,J., dissenting).


the people to judge their value, and, ultimately, ar-riving at the truth. So much confidence did Holmesand Brandeis have in the market metaphor that theydescribed it as the Constitution’s theory of freespeech.

Making good on its intended status as a generaltheory, the market-based approach to First Amend-ment interpretation has influenced many fields,including commercial speech, the EstablishmentClause, government speech, and campaign fi-nance.30 High-profile democracy issues and contro-versial holdings now call attention to the last ofthose subfields especially. From Buckley v. Valeo,the Supreme Court’s seminal campaign financedecision, and continuing through the 2014 case,McCutcheon v. Federal Election Commission

(FEC),31 the market metaphor has exercised arare hegemonic power, trumping alternative un-derstandings of political values and setting theanalytical frame from within which the Court’sholdings have sprung.32

Between 1976 and 2003, those holdings were rel-atively moderate, striking a middle ground betweencampaign finance regulations and free speech chal-lengers, which is to say a middle ground betweenconcerns over (a) democratic integrity, politicalequality, popular representation and responsiveness,undue influence, and corruption, and (b) censorship,freedom of speech, freedom of association, incum-bency protection, and government overreach. Thelaw of campaign finance was incoherent and inef-fective as a result of the Burger and RehnquistCourts’ holdings, but reasonable regulatory ambi-tions were not foreclosed, per se, on ideologicalgrounds. Campaign finance reformers won in theSupreme Court about as much as they lost, andthere was still hope for an eventual balance ofpower between concentrated capital and ordinarycitizens.

The Roberts Court changed all of this, as every-one knows. But there remains a little-known fact:the vehicle for the deregulation of political financeand the consolidation of plutocracy33 in the UnitedStates is the market metaphor, or, rather, the radi-calization of the market metaphor at the hands ofChief Justice Roberts and Justices Scalia, Kennedy,Thomas, and Alito. The market metaphor has beenpresent in the case law all along, but at one partic-ular point—as though seduced, sequestered, andbrainwashed in the inner reaches of chambers—it suffered a terribly profound transformation.

Originally understood in Buckley v. Valeo as ameans for ‘‘bringing about the political and socialchanges desired by the people,’’ the market meta-phor has been converted into a means for bringingabout the political and social changes desired bythe wealthy. The metaphor went from democraticto plutocratic.

The next part of this article summarizes the mar-ket metaphor’s transformation in campaign financejurisprudence and its tragic implications for democ-racy. The third part lays out the competing articula-tions and functions of the market metaphor from1976 to 2014 as a means for suggesting that the met-aphor should be saved and for discovering fromwhat, exactly, it needs saving. Building on thatlast item, the fourth part explains how the marketmetaphor has been enlisted in the service of a cap-italist theology, a belief system employed by theSupreme Court in a theocratic capacity. While thisfinal part of the article contains an admittedly un-usual analytical frame for legal analysis, it advancesexisting inquiries into laissez-faire ideology andneoliberal jurisprudence34 and facilitates a keytask—that of citizens, experts, policymakers, andjudges who wish to confront an underlying sourceof today’s rising political and economic inequality.This can also be described as today’s rising entan-glement between political and economic power.

30Indeed, the marketplace of ideas figures in over 1,000 appel-late opinions and reaches across the Supreme Court’s ideolog-ical divide and changing membership. See Ronald K.L. Collins,Holmes’ Idea Marketplace—Its Origins and Legacy, First

Amendment Center (May 13, 2010), <http://www.firstamendmentcenter.org/holmes’-idea-marketplace-–-its-origins-legacy>.31134 S. Ct. 1434 (2014).32See generally Timothy K. Kuhner, Capitalism v. Democ-

racy: Money in Politics and the Free Market Constitu-

tion (2014) [hereinafter Capitalism v. Democracy].33See Timothy K. Kuhner, American Plutocracy, 26 King’s

L.J. 44 (2015), and Chapter 6, Plutocracy, in Capitalism v.

Democracy, supra note 32.34See, e.g., Timothy K. Kuhner, Citizens United as NeoliberalJurisprudence: The Resurgence of Economic Theory, 18 Va.

J. Soc. Pol’y and L. 395, 398–401 (2011); Timothy K. Kuh-ner, Consumer Sovereignty Trumps Popular Sovereignty: TheEconomic Explanation for Arizona Free Enterprise v. Bennett,46 Ind. L. Rev. 603, 631–32 (2013); Jedediah Purdy, Neolib-eral Constitutionalism: Lochnerism for a New Economy, 77Law and Contemp. Probs. 195 (2014); Zephyr Teachout,Neoliberal Political Law, 77 Law and Contemp. Probs.

215 (2014); David Schultz, Election Law and Demo-

cratic Theory (2014).

100 KUHNER

IMPLICATIONS FOR POLITICALINCLUSION, REPRESENTATION,

AND RESPONSIVENESS

In 1976, at the beginning of the modern era ofcampaign finance, the Supreme Court gave its fa-mous, market-inspired articulation of free speech:‘‘The First Amendment affords the broadest protec-tion to such political expression in order ‘to assure(the) unfettered interchange of ideas for the bringingabout of political and social changes desired by thepeople.’’’35 This formulation is clearly instrumental,consequentialist, or utilitarian in the sense that theFirst Amendment protects one thing (an open mar-ketplace) in order to produce another thing (politicaland social changes desired by the people). BecauseBuckley addressed political speech in the electoralcontext, it is fair to understand this purpose of ensur-ing popular social and political change as demo-cratic responsiveness.

This justification for and function of the open mar-ket carried through various parts of Buckley. For exam-ple, the Court concluded that there was ‘‘nothinginvidious, improper, or unhealthy’’36 about unlimitedcampaign spending, because contribution limits en-sured that ‘‘the financial resources available to a candi-date’s campaign . will normally vary with the sizeand intensity of the candidate’s support.’’37 Hence, po-litical spending could be expected to help bring aboutthe social and political changes desired by the people.

In the 2010 case, Citizens United v. FEC, protect-ing the ‘‘open marketplace of ideas protected by theFirst Amendment’’ stood as the main justificationfor striking down a restriction on corporate politicalexpenditures. This was possibly only because theCourt conspicuously omitted Buckley’s popular pur-pose and democratic justification for that market-place. In fact, Citizens United affirmatively rejectedBuckley’s stipulation that unlimited spending wasperfectly proper and healthy for democracy insofaras political funds were correlated with popular sup-port. It declared ‘‘irrelevant for purposes of theFirst Amendment that corporate funds may ‘have lit-tle or no correlation to the public’s support for thecorporation’s political ideas.’’’38

By 2014, the Roberts Court had fully contra-dicted Buckley’s articulation of the market meta-phor. Beyond merely omitting the purpose andjustification of the unfettered interchange, that ofbringing about the political and social changes de-sired by the people, McCutcheon v. FEC approved

of ‘‘the possibility that an individual who spendslarge sums may garner ‘influence over or access to’elected officials or political parties.’’39 McCutcheon

described ‘‘ingratiation and access’’ on the groundsof political spending as ‘‘embody[ing] a central fea-ture of democracy—that constituents support candi-dates who share their beliefs and interests, andcandidates who are elected can be expected to be re-sponsive to those concerns.’’40 Now, the open market-place was fully justified in bringing about the political

and social changes desired by donors and spenders.By describing the unregulated political market as

an end in and of itself, and redefining democraticrepresentation as appropriately sensitive to politicaldonations and expenditures, the Roberts Courtserves as a constitutional catalyst in the ongoingshift from democracy to plutocracy.41 Having laidthe constitutional foundation for unlimited outsidespending and multi-million-dollar aggregate dona-tions to candidates and party committees, Citizens

United and McCutcheon justify and protect the in-creasing political inequality that defines our mo-ment in history.

As laid out in a landmark study by Martin Gilensand Benjamin Page just one week after McCutcheon

was decided, ‘‘Economic elites and organized groupsrepresenting business interests have substantial inde-pendent impacts on U.S. government policy, whilemass-based interest groups and average citizens havelittle or no independent influence.’’42 Earlier findingsby Gilens suggested that patterns of government re-sponsiveness ‘‘often corresponded more closely to a

35Buckley, 424 U.S. at 14. For additional Friedman-like homageto marketplace thinking, see also id. at 57: ‘‘The First Amend-ment denies government the power to determine that spendingto promote one’s political views is wasteful, excessive, or un-wise. In the free society ordained by our Constitution it is notthe government, but the people individually as citizens and can-didates and collectively as associations and political commit-tees who must retain control over the quantity and range ofdebate on public issues in a political campaign.’’36Id. at 56.37Id.38Citizens United v. Federal Election Commission (FEC), 558U.S. 310, 351 (2010).39Id. at 359.40McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014).41See American Plutocracy, supra note 34.42Martin Gilens and Benjamin Page, Testing Theories of Amer-ican Politics, 12(3) Perspectives on Politics 564 (2014),available at <http://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf>.


plutocracy than to a democracy.’’43 Gilens’ prior studydemonstrated that ‘‘when preferences across incomegroups diverged, only the most affluent appeared toinfluence policy outcomes’’ and that such ‘‘represen-tational inequality was spread widely across policydomains, with a strong tilt toward high-incomeAmericans on economic issues.’’44 And, two yearsbefore Citizens United, Larry Bartels reached a sim-ilarly stark conclusion: ‘‘the views of constituentsin the bottom third of the income distribution re-ceived no weight at all in the voting decisions oftheir senators.’’45

The take-away is clear: As Gilens and Page put it,‘‘America’s claims to being a democratic society areseriously threatened’’ because ‘‘policymaking isdominated by powerful business organizations anda small number of affluent Americans.’’46 And yet,the original articulation of the market metaphor inBuckley justified an unfettered interchange ofideas (and political spending) on the theory that itwould bring about an entirely different set of poli-cies, namely the one ‘‘desired by the people.’’ ButBuckley was decided 38 years prior to these studies.Would the Burger Court have championed the free-market approach to democracy if it knew of the vastpolitical inequality brewing along the lines of socio-economic status? Would Buckley have justified un-limited expenditures if it knew that just 0.000084%of voting-age citizens would come to supply 80% ofthe cash to outside expenditure groups as of 2012?47

What about the fact that the top 10% of Americanswould come to own 72% of national wealth by2010, with the bottom 50% of the population leftin control of just 2% of national wealth?48 Do un-limited campaign expenditures, personal expendi-tures, and outside expenditures bode well for thedemocratic responsiveness under such conditions?

As we shall soon see in greater depth, Buckley’sreasoning could well have led to a different outcomeon the basis of today’s high-profile inequalities. Butunder the Roberts Court’s formulation of the marketmetaphor, such facts make no difference whatso-ever. Consider, for example, that Buckley validatedindividual and aggregate contribution limits, butMcCutcheon struck down the latter. And it did soat the end of a twenty-year period in which thegreat majority of campaign donations had been con-trolled by less than one percent of the U.S. popula-tion.49 In the 2014 midterm elections, held sevenmonths after McCutcheon, just 0.3% of the adultpopulation—a tiny and wealthy cohort—supplied

66% of the sum total of campaign contributions.50

Given such patterns in contributions and expendi-tures, and a similar bias towards wealthy interestsin lobbying expenditures, the obscene degree of po-litical inequality and democratic unresponsivenessdocumented by Gilens, Page, and Bartels is a bitless mysterious; as is the overall panorama of risingeconomic inequality in the United States.51

The foregoing represents the material side ofmoney in politics—tangible conditions of accessand influence that embody a high degree of politicalinequality and produce, through law and policy, ahigh degree of economic inequality. This materialside is not the most important aspect of the marketmetaphor’s effects, however. In essence and func-tion, the metaphor is a way of thinking, which, inFirst Amendment jurisprudence, affects and justifies

43Martin Gilens, Affluence and Influence: Economic

Inequality and Political Power in America 234 (2012).44Id. at 234.45

Larry M Bartels, Unequal Democracy 254 (2008) (dis-cussing a longitudinal analysis of senators’ votes on legislationon the minimum wage, civil rights, government spending, andabortion).46Daniel P Smith, Does Democracy Still Work?, Weinberg

Mag. (Winter 2014), <www.weinberg.northwestern.edu/discover/weinberg-magazine/fall-winter-2014/does-democracy-still-work.html>.47Meredith McGehee, Only a Tiny Fraction of Americans GiveSignificantly to Campaigns, Campaign Legal Center (Oct. 182012), <www.clcblog.org/index.php?option=com_content&view=article&id=482:only-a-tiny-fraction-of-americans-give -significantly-to-campaigns>.48

Thomas Piketty, Capital in the Twenty-First Century

257 (Arthur Goldhammer trans., Harvard University Press2014).49On 2014, see Center for Responsive Politics, Donor Demo-graphics, Opensecrets.org, <www.opensecrets.org/overview/donordemographics.php>. For elections between 1992and 2012, see id. at <www.opensecrets.org/bigpicture/donordemographics.php?cycle=2012&filter=A>. See also LawrenceLessig, What an Originalist Would Understand ‘‘Corruption’’to Mean, 102 Cal. L. Rev. 1, 5 (2014); Jamin Raskin and JohnBonifaz, Equal Protection and the Wealth Primary, 11 Yale

Law and Pol’y Rev. 273, 294 (1993); Lee Drutman, OnFIRE: How the Finance, Insurance and Real Estate SectorDrove the Growth of the Political One Percent of the OnePercent, Sunlight Foundation (Jan. 26, 2012), <http://sunlightfoundation.com/blog/2012/01/26/on-fire-how-the-finance-insurance-and-real-estate-sector-drove-the-growth-of-the-political-one-percent-of-the-one-percent/>.50See Center for Responsive Politics, Donor Demographics,Opensecrets.org, at <www.opensecrets.org/overview/donordemographics.php>.51See, e.g., Joseph E. Stiglitz, Of the 1%, by the 1%, for the 1%,Vanity Fair (May 2011) (‘‘[a]ll the growth in recent de-cades—and more—has gone to those at the top’’ and that‘‘most citizens are doing worse year after year’’).

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the conditions under which elections are held andlaws are made. The market metaphor’s absolutelycentral role in judicial reasoning affords it an ideo-logical function in the sense of the power of ideasto produce and justify action.

Those actions, in law and policy, have structuredpolitical and economic marketplaces in ways that pro-duce the massive and rising inequalities describedabove. The ideological element goes to the greaterissue of whether those inequalities will be lasting ornot. As Thomas Piketty puts it, the democratic world’sconsistently high degree of inequality in capital own-ership ‘‘is by no means foreordained[—]its existencetells us something important about the nature of theeconomic and social processes that shape the dynam-ics of capital accumulation and the distribution ofwealth.’’52 He goes on to speculate that today’s distrib-utive outcomes are so unequal as to invite violent rev-olution.53 Because it is indeed ‘‘hard to imagine thatthose at the bottom will accept the situation perma-nently,’’54 Piketty ventures that the sustainability of to-day’s extreme levels of inequality ‘‘depends not onlyon the effectiveness of the repressive apparatus butalso, and perhaps primarily, on the effectiveness ofthe apparatus of justification.’’55 He calls ‘‘the justifi-cation of inequalities’’ the ‘‘key issue.’’56

This is the most accurate framework for under-standing the importance of the market metaphor: it isa way of thinking that produces and justifies outcomes.In a time of rising economic and political inequalitygrounded partly in the destruction of campaign financelaw, it is essential to scrutinize the Court’s reasoningfor its material and ideological effects. From the begin-ning, the market metaphor has been the centerpiece ofthat reasoning. Still, despite the fact that the RobertsCourt’s formulation of the metaphor justifies and pro-tects grossly unequal political power on the basis ofwealth, this does not mean that the metaphor itself isbeyond saving.

FROM DEMOCRATIC RESPONSIVENESSTO PLUTOCRACY: HIGHLIGHTS FROM

THE MARKET METAPHOR’STRANSFORMATION, 1976–2014

Justice Scalia’s death and the immanence of hissuccessor have accelerated what would otherwise bea faraway question: Will the transformation of themarket metaphor in campaign finance jurisprudencebe consolidated or reversed? Or perhaps the market

metaphor will be discarded altogether. Chief JusticeRoberts and Justices Kennedy, Thomas, and Alitoare eager to consolidate the market metaphor’s newmeaning in order to cement—and perhaps continue—the deregulation of campaign finance. And the newpresident-elect will likely nominate a jurist who sharesthat goal.57 Justices Breyer, Ginsburg, Sotomayor, andKagan, on the other hand, would like nothing morethan to return the metaphor to its earlier, mild-mannered ways in order to reverse the latest deregula-tory cases, including Citizens United v. FEC andMcCutcheon v. FEC. Meanwhile, the ongoing move-ment to amend the Constitution on matters of moneyin politics may eventually succeed in erasing the mar-ket metaphor from campaign finance jurisprudence,etching an entirely new analytical frame for law of de-mocracy issues onto the face of the Constitution itself.

Those concerned with democratic responsive-ness, political equality, and popular governmentought to at least consider the metaphor’s various it-erations before premising their desired reforms onthe forcible removal of a nearly hundred-year-oldcenterpiece of First Amendment jurisprudence. Inthis regard, the following brief history of the marketmetaphor’s treatment in campaign finance casesgives hope. Though radicalized, the market meta-phor could still be redeemed.

The Burger Court

Buckley v. Valeo. The Burger Court’s 1976 percurium opinion in Buckley responded to the endof a nearly two-hundred-year period—essentiallythe life of the Nation thus far—in which no compre-hensive regulation of campaign finance could befound.58 The Federal Election Campaign Act(FECA) of 1971 and a second bundle of reformsunder the same name passed in 1974 contained a

52Capital in the Twenty-First Century, supra note 48, at

244.53Id. at 439.54Id. at 263.55Id.56Id.57Amanda Marcotte, The Swamp Won’t Be Drained: DonaldTrump’s Supreme Court Pick Will Almost Certainly OpposeCampaign Finance Regulation, Salon.com (Nov. 23 2016),<http://www.salon.com/2016/11/23/the-swamp-wont-be-drained-donald-trumps-supreme-court-pick-will-likely-oppose-campaign-finance-regulation/>.58Anthony Corrado, Money and Politics: A History of FederalCampaign Finance Law, in Corrado and Mann et al., The

New Campaign Finance Sourcebook 7–47 (2005).


comprehensive approach to campaign finance—including limits on how much money individualsand political action committees could give to cam-paigns (contributions), limits on how much moneycandidates and campaigns could spend (expendi-tures), public disclosure requirements, an adminis-trative agency to enforce election law (the FederalElection Commission), and provisions for the vol-untary public financing of presidential campaigns.59

Asked to invalidate each of these provisions, theCourt opted for a general theory of free speech thatwould orient each facet of the searching review itagreed to perform. The need for a general approachwas all the more pronounced in light of the fact thatthe Constitution ‘‘is silent on virtually all the impor-tant issues regarding elections, from the method tobe used for casting ballots, to . issues of how elec-tions are to be run and financed.’’60 The Buckley ap-peal, a massive case of first impression, required theCourt not just to decide a host of concrete issues, butalso—and far more dauntingly—to decide the Con-stitution’s orientation to campaign finance.

The precise details of the Court’s search for a start-ing point will remain forever mysterious, but it is evi-dent that they involved not just a review of precedentbut also considerable extralegal, social consider-ations. Indeterminate legal analyses are commonlyinfluenced, in H. Jefferson Powell’s words, by thejustices’ ‘‘principled commitment[s] to underlyingconstitutional meaning.’’61 And this was doubly truefor Buckley, which was not just any case of first im-pression to be decided on ambiguous constitutionalfooting. It was the case that raised the largest of allissues for a liberal democracy that had just consoli-dated massive gains in civil rights. How far wouldpolitical equality advance? What further sources ofpower and privilege might it unseat? In a republicthat had finally secured universal suffrage withoutblatant obstacles, could concentrated capital retainan ideological and substantive foothold in electionsand policymaking? Within that realm of commit-ments to underlying constitutional meaning that noperson of any intellectual sophistication, much lessa Supreme Court justice, could avoid contemplating,two competing social baselines were especially prom-inent at the time Buckley was drafted. Both in factachieved a place in Buckley’s framing of the marketmetaphor, and both happened to overlap perfectlywith precedent.

The first baseline pursues political equality, pop-ular participation, and popular sovereignty. It is well

expressed by John Rawls’ A Theory of Justice,which was published in 1971 (the same year asthe first installment of FECA) and appears to havecolored Congress’ choice of legislative purposes.With the ongoing enforcement of the Civil RightsAct and Voting Rights Act, it was plain to see thatthe country stood at the cusp of ending all categor-ical grounds for political exclusion. With battlesover race, ethnicity, religion, and sex all foughtand seemingly won, only socio-economic statusremained to be addressed.62 Rawls wrote:

The constitution must take steps to enhancethe value of equal rights of participation forall members of society . those similarlyendowed and motivated should have roughlythe same chance of attaining positions of polit-ical authority irrespective of their economicand social class . The liberties protected bythe principle of participation lose much oftheir value whenever those who have greaterprivate means are permitted to use their advan-tages to control the course of public debate.For eventually these inequalities will enablethose better situated to exercise a larger influ-ence over the development of legislation.63

Congress adopted Rawls’ goals and values as legisla-tive purposes in the 1974 installment of FECA. Itscontribution and expenditure limits aimed to ‘‘[e]qual-ize the relative ability of all citizens to affect the out-come of elections’’ and to slow ‘‘the skyrocketing costof political campaigns, thereby . open[ing] the

59The Federal Election Campaign Act (FECA’s) various mea-sures are detailed in the appendix to the per curiam opinion.See Buckley, 424 U.S. at 187–199.60Samuel Issacharoff and Richard H. Pildes, Politics as Mar-kets: Partisan Lockups of the Democratic Process, 50 Stan.

L. Rev. 643, 713 (1998).61H. Jefferson Powell, Reasoning about the Irrational: TheRoberts Court and the Future of Constitutional Law, 86Wash. L. Rev. 217, 238 (2011).62I mean this in terms of political exclusion, not prejudice or so-cial disadvantage more broadly. Clearly many injustices besidespolitical exclusion remained, and some, especially those per-taining to sexual orientation and transgender, had yet to com-mence in earnest. Age is another category that comes to mind.63

John Rawls, A Theory of Justice 224–225 (BelknapPress 1991, 1971). See also John Rawls, Political Liberal-

ism 327 (Columbia University Press 1996, 1993) (elaborating a‘‘fair value of political liberties’’ significantly based on this pas-sage).

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political system more widely to candidates without ac-cess to sources of large amounts of money.’’64

The second baseline pursues the classically liberalvision of an efficient marketplace free from coercionand is well embodied in Milton Friedman’s ascendanceas a public intellectual. Friedman received the NobelPrize in economics the same year that Buckley washanded down. His ‘‘efficient market hypothesis’’ dom-inated the decade of the 1970s, a time when ‘‘[d]iscus-sion of investor irrationality, of bubbles, or destructivespeculation had virtually disappeared from academicdiscourse.’’65 Friedman understood his own work asa response to the ‘‘readiness to rely primarily on thestate rather than on private voluntary arrangements toachieve objectives regarded as desirable.’’66 He was in-spired by what he called Adam Smith’s ‘‘flash of ge-nius,’’ the realization that ‘‘the prices that emergedfrom voluntary transactions between buyers and sell-ers . could coordinate the activity of millions of peo-ple . in such a way as to make everyone better off.’’67

This was Friedman’s baseline, that freedom, rational-ity, efficiency, and overall gains could be secured byfree markets—the price system—not regulation.

Buckley achieved a rough compromise betweenRawls’ and Friedman’s general theories by choos-ing the particular framing of the market metaphorgiven by the 1957 case, Roth v. United States. Quot-ing Roth verbatim, Buckley’s first categorical state-ment about the First Amendment reads: ‘‘The FirstAmendment affords the broadest protection tosuch political expression in order ‘to assure (the)unfettered interchange of ideas for the bringingabout of political and social changes desired bythe people.’’’68 Roth notes that ‘‘[t]his objectivewas made explicit as early as 1774 in a letter ofthe Continental Congress,’’69 and yet, as featuredin Buckley, it appeared to be a modern-day synthesisof Friedman’s economic recipe with a Rawlsianconcern over inequalities in power hijacking legisla-tion for private aims. Friedman triumphed in themeans (the free market), while Rawls prevailed onthe ends (democratic responsiveness), or nearly so.

Thirty-five pages after this first reference to theachievement of democratic responsiveness throughan unfettered interchange of ideas, Buckley againquoted Roth. This time, the purpose of the quotationwas not to introduce readers to the overall formulaof market-based means producing popular ends;rather, it was to strike down expenditure limits andcast doubt on the legitimacy of political equality asa state interest. Referencing the ‘‘governmental inter-

est in equalizing the relative ability of individuals andgroups to influence the outcome of elections’’70 thatstood behind expenditure limits, the Court wrote‘‘the concept that government may restrict the speechof some elements of our society in order to enhancethe relative voice of others is wholly foreign to theFirst Amendment.’’71 The Court’s support for thisproposition consisted entirely of Roth’s First Amend-ment purpose of ‘‘unfettered interchange’’ and a com-plementary First Amendment purpose adapted fromAssociated Press v. United States, handed down 12years before Roth.

In Buckley’s use of Associated Press, the FirstAmendment ‘‘was designed to secure ‘the widestpossible dissemination of information from diverseand antagonistic sources.’’’72 Buckley first cites New

York Times v. Sullivan for this proposition and, likeSullivan itself, Buckley omits Associated Press’ rea-son for this First Amendment design.73 Conse-quently, the concept of restricting the speech ofsome to enhance the relative voice of others couldbe described as contradicting two First Amendmentpurposes enumerated by precedent: assuring the‘‘unfettered interchange of ideas’’ (as establishedby Roth) and securing the ‘‘widest possible dissem-ination of information from diverse and antagonis-tic sources’’ (as established by Associated Press).When it came to dispensing with Congress’ mannerof pursuing political equality, Buckley treated

64Buckley, 424 U.S. at 24–26.65Paul Krugman, How Did Economists Get It So Wrong?, N.Y.Times Mag. (Sept. 6, 2009), <http://www.nytimes.com/2009/09/06/magazine/06Economic-t.html>.66

Milton Friedman, Capitalism and Freedom vi, 5 (1982).67Friedman, quoted in Pierre Rosanvallon, Democracy

Past and Future 151 (2006).68Buckley, 424 U.S. at 14. Additional homage to marketplacethinking came in, id. at 57: ‘‘The First Amendment denies gov-ernment the power to determine that spending to promote one’spolitical views is wasteful, excessive, or unwise. In the free so-ciety ordained by our Constitution it is not the government, butthe people individually as citizens and candidates and collec-tively as associations and political committees who must retaincontrol over the quantity and range of debate on public issues ina political campaign.’’69Roth v. U.S., 354 U.S. 476, 484 (1957).70Buckley, 424 U.S. at 48.71Id. at 48–49.72Id. at 49.73See New York Times Co. v. Sullivan, 376 U.S. 254, 266(1964) (‘‘The effect would be to shackle the First Amendmentin its attempt to secure ‘the widest possible dissemination of in-formation from diverse and antagonistic sources’’’). This quota-tion from Associate Press truncates the sentence that explainswhy the widest possible dissemination is desirable.


Roth’s and Associated Press’ description of an un-regulated marketplace of ideas as an end in andof itself.

In the pages of the Associated Press opinion itself,however, that ‘‘widest possible dissemination’’ is de-scribed as a mere means to an end: ‘‘Th[e First]Amendment rests on the assumption that the widestpossible dissemination of information from diverseand antagonistic sources is essential to the welfareof the public.’’74 This instrumental purpose of publicwelfare dovetails with Roth’s similarly instrumentaluse of free exchange to bring about the ‘‘politicaland social changes desired by the people.’’75 Accord-ingly, the passage of Buckley that deems politicalequality an insufficiently important state interest forlimiting political expenditures seems to err by consti-tutionally elevating the independent variable (theopen marketplace) above the dependent variables(democratic responsiveness and public welfare).

There is another possible reading of Buckley’streatment of political equality, however. It beginswith a key observation: the opinion does not takeissue with Congress’ goal per se, the ‘‘governmentalinterest in equalizing the relative ability of individ-uals and groups to influence the outcome of elec-tions.’’76 As a textual matter, the opinion takesissue with the means chosen to achieve that goal:‘‘restrict[ing] the speech of some elements of oursociety in order to enhance the relative voice ofothers.’’ Buckley labeled the expenditure limits‘‘wholly foreign to the First Amendment,’’ not thestate interest in greater equality of influence overthe outcome of elections. Moreover, Buckley doesnot discuss a potential state interest in some sem-blance of equality of influence over law and policy,i.e., democratic responsiveness, except in statingtwice that democratic responsiveness is the FirstAmendment’s ultimate purpose.77

Buckley’s treatment of political equality there-fore amounts to a judgment that expenditure limitsimpermissibly conflict with the First Amendmentdesign of the ‘‘widest possible dissemination of in-formation’’ and ‘‘unfettered interchange of ideas.’’Because the ultimate goals of this free-market de-sign are public welfare (per Associated Press) anddemocratic responsiveness (per Buckley and Roth),Buckley should be read as deciding that Congress’means of limiting the speech of some to enhancethe relative voice of others would not be conduciveto democratic responsiveness or public welfare.Indeed, Buckley treated public financing as compat-

ible with the open marketplace and self-governance,calling it ‘‘a congressional effort, not to abridge, re-strict, or censor speech, but rather to use publicmoney to facilitate and enlarge public discussionand participation in the electoral process, goalsvital to a self-governing people.’’78

Surprisingly enough, Buckley’s use of the marketmetaphor allows for a state interest in politicalequality and campaign finance reforms that enhancethe voices of the disadvantaged through subsidiesinstead of expenditure limits. More interestinglystill, Buckley’s formulation of the market metaphorallows for limits or restrictions if the open market-place for speech proves itself counterproductive inthe quest for an ultimate good.

After all, Buckley quoted in full Roth’s instru-mental purpose of the free-market metaphor bothtimes it used the words ‘‘unfettered interchange.’’In the seminal case in campaign finance law—thefirst case to apply open market thinking to donationsand expenditures—the market metaphor is a meansto an end, and that end is democratic responsive-ness. The implication for stare decisis is powerfulindeed. If the ‘‘widest possible dissemination of in-formation’’ were, in practice, to work against thepublic welfare, or if the ‘‘unfettered interchange ofideas’’ ended up, in practice, blocking the socialand political changes desired by the people, thenthese recipes could be abandoned. The utility ofsuch open market prescriptions for popular ends—and hence their validity as a First Amendmentdesign—is, in the Supreme Court’s first iterationin Associated Press, an ‘‘assumption.’’79

Additional passages of Buckley suggest that theCourt did not quote Roth’s instrumental, popularpurpose of the unfettered interchange of ideas as amere rhetorical flourish or an insincere civic con-cession. Paralleling Associated Press’ assumption

74Associated Press v. United States, 326 U.S. 1, 20 (1945).75Roth, 354 U.S. at 484.76Buckley, 424 U.S. at 48.77Buckley, 424 U.S. at 14 and 49. For a powerful exposition ofwhere this could take campaign finance jurisprudence, seeNicholas Stephanopoulos, Aligning Campaign Finance Law,in Reforming Campaign Finance in the United States:

Democracy by the People (forthcoming, Timothy K. Kuhnerand Eugene Mazo, eds., 2017) (arguing that ‘‘the promotion ofalignment between voters’ policy preferences and their govern-ment’s policy outputs’’ is a vital and constitutionally compel-ling state interest for campaign finance reform).78Buckley, 424 U.S. at 92–93.79Associated Press, 326 U.S. at 20.

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that the widest possible dissemination was essentialto public welfare, Buckley assumed that ‘‘given thelimitation on the size of outside contributions, thefinancial resources available to a candidate’s cam-paign . will normally vary with the size and inten-sity of the candidate’s support.’’80 On this basis,Buckley concluded that ‘‘[t]here is nothing invidi-ous, improper, or unhealthy in permitting suchfunds to be spent to carry the candidate’s messageto the electorate.’’81 In this hypothetical world ofcampaign funds correlated with popular supportand a robust marketplace of diverse and antagonisticsources producing ‘‘a well-informed electorate,’’82

it would be reasonable to assume that the unfetteredinterchange of ideas would produce the social andpolitical changes desired by the people.

Correlation of the supply of campaign funds withintensity, not just size, of public support constitutesthe great weakness in Buckley’s free-market recipefor popular sovereignty. After all, the intense prefer-ences of small, well-funded groups can be a formi-dable opponent for large portions of the populationwhose preferences are not so well represented, fi-nancially or organizationally speaking.83 But ifcampaign funds were indeed correlated with publicsupport, as Buckley posited, it would be undemo-cratic to limit expenditures such that poorly funded(i.e., unpopular) viewpoints could better competeagainst well-funded (popular) ones. This would beespecially true in light of Buckley’s additional as-sumption that ‘‘virtually every means of communi-cating ideas in today’s mass society requires theexpenditure of money.’’84 Buckley therefore felt ittrue by definition that expenditure limits wouldreduce the ‘‘number of issues discussed, the depthof their exploration, and the size of the audiencereached,’’85 citing for good measure the ‘‘elector-ate’s increasing dependence on [expensive fora forspeech, such as] television, radio, and other massmedia.’’86 And, as a further testament to the demo-cratic purpose behind the market metaphor, Buckley

located the ultimate problem of expenditure limitsin the resulting threat to popular sovereignty: ‘‘Ina republic where the people are sovereign, the abil-ity of the citizenry to make informed choices . isessential, for the identities of those who are electedwill inevitably shape the course that we follow as anation.’’87 Indeed, it was a formula about how bestto achieve popular sovereignty that, though perhapsmisguided in theory or application, led to the con-clusion that money is speech.88

In sum, Buckley aimed to achieve democratic re-sponsiveness and popular sovereignty by construct-ing a free market for the exchange of ideas throughthe unlimited spending of funds, a concession to thecost of political speech at the start of the big mediaera. The Court’s assumption about the correlationbetween campaign funds and popular support re-moved part of the sting of its invalidation of expen-diture limits and the political equality rationalebehind them. The decision undeniably rested onthe old Holmesian stipulation that ‘‘the ultimategoods desired are better reached by free trade inideas and the competition of the market.’’ And,most central of all for our purposes, the decision un-deniably posits informed decision making, popularcontrol, and democratic responsiveness as the de-sired goods.

First National Bank of Boston v. Bellotti. Twoyears after Buckley protected unlimited expendi-tures by individuals, candidates, and parties, theCourt turned to the question of corporate politicalexpenditures in the referendum context. Here wasthe ironic issue of intervention by entities fromthe actual economic marketplace into the metaphori-cal, political marketplace. Should corporations haveunlimited participation in the marketplace of ideas?In Bellotti, banks and other corporations challengedthe constitutionality of a Massachusetts law prohibit-ing them from making contributions or expenditures‘‘for the purpose of . influencing or affecting thevote on any question submitted to the voters, other

80Buckley, 424 U.S. at 56.81Id.82Id. at 45, n55.83The findings of public choice economists and the leading po-litical scientists studying democratic responsiveness suggestthat associations and individuals with concentrated interestsroutinely defeat those with diffuse interests. See, e.g., Mancur

Olsen, The Logic of Collective Action: Public Goods

and the Theory of Groups (1971). Stated another way,those with intense preferences and the funds to back them upthrough lobbying, contributions, and expenditures have no trou-ble countering the masses. But given Buckley’s various ovationsto popular governance and repeated emphasis on the democraticpurpose of the unfettered interchange of ideas, its inclusion ofintensity alongside size ought to be treated as trivial.84Buckley, 424 U.S. at 18, n17.85Id. 19.86Id.87Id. at 14–15.88See American Plutocracy, supra note 34 at 64 (arguing on thebasis of Buckley’s text that the Court ‘‘equated money withspeech . to defend popular sovereignty’’).


than one materially affecting any of the property,business, or assets of the corporation.’’89 JusticePowell’s plurality opinion struck down the law.

Justice Powell used the case as a vehicle forundermining the ultimate function of the open mar-ketplace of ideas enshrined in Buckley—govern-ment responsiveness to the will of the people. Hebegan his plurality opinion by sidestepping the cen-tral, inflammatory issue of whether corporationspossessed First Amendment rights to begin with,framing the case around the issue of whether theMassachusetts law ‘‘abridges expression that theFirst Amendment was meant to protect.’’90 Thatconstruction of the issue allowed Powell to focuson what he called ‘‘significant societal interests’’served by free speech.91 In reality, however, hisopinion neglects all of those interests but one,‘‘the free flow of information to the public,’’92 con-struing it as superior to and independent from therest. For example, Justice Powell recognized the‘‘individual’s interest in self-expression’’ as a FirstAmendment concern but described it as ‘‘separatefrom the concern for open and informed discus-sion.’’93 He then proceeded to focus the opinionon this latter concern, describing it as the necessaryresult of an open marketplace of ideas.

Responding to the state’s ‘‘interest in sustaining theactive role of the individual citizen [as opposed to theactive role of banks and corporations] . in the law-making process,’’ Powell treated the unrestrictedflow of information as sacred. He borrowed Associ-

ated Press’ words to describe the constitutionally re-quired sustenance for active citizens: ‘‘the widestpossible dissemination of information from diverseand antagonistic sources.’’94 Following in Buckley’sfootsteps, Powell neglected to point out that Associated

Press offered this iconic design as an ‘‘assumption’’about how to secure ‘‘the welfare of the public.’’95

Still, just below the surface of the opinion, one findsa battle between competing assumptions about the re-lationship between an open political marketplace andpublic welfare. The state’s move to regulate the ‘‘mar-ketplace for ideas’’ arose from assumptions about thenegative implications of unrestricted corporate politicaladvertising for public welfare and civic participation.Justice Powell’s move to strike down that regulationarose from a competing set of assumptions about therelationship between corporate political power andpublic welfare.96

Lumping corporate expenditures on referenda ques-tions into the category of ‘‘speech indispensable to

decisionmaking in a democracy,’’ Powell included cor-porations in self-governance: ‘‘‘speech concerningpublic affairs is more than self-expression; it is theessence of self-government.’’’ Pursuing the conditionsfor self-government as he saw it, Powell argued thatthe ‘‘inherent worth of the speech in terms of its capac-ity for informing the public does not depend upon theidentity of its source, whether corporation, association,union, or individual.’’97 Nobody had alleged, however,that corporate speech had no value for informing thepublic. Rather, the state contended that corporate ‘‘par-ticipation would exert undue influence on the outcomeof a referendum vote [given that] corporations arewealthy and powerful and their views may drownout other points of view.’’98 This and the subsequentlytilted balance of law and public policy would upsetpublic welfare in the state’s view. And widely availableevidence, such as Lindblom’s, supported this view.

Powell responded to the state’s concern with a free-market retort: ‘‘To be sure, corporate advertising mayinfluence the outcome of the vote; this would be itspurpose. But the fact that advocacy may persuadethe electorate is hardly a reason to suppress it.’’99

Ducking progressive concerns over corporate powerto overwhelm public opinion, Powell assigned to theelectorate the ‘‘responsibility for judging and evaluat-ing the relative merits of conflicting arguments,’’which might be facilitated through consideration ofthe ‘‘source and credibility of the advocate.’’100 Theonly reference to Buckley’s marketplace terminologyof an ‘‘unfettered interchange’’ came in this classically

89First National Bank of Boston v. Bellotti, 435 U.S. 765, 768(1978).90Id. at 776.91Id.92Id. at 792, n30.93Id. at 777, n12.94Id. at 792, n29 (‘‘far from inviting greater restriction ofspeech, the direct participation of the people in a referendum,if anything, increases the need for ‘‘‘the widest possible dissem-ination’’’).95Associated Press, 326 U.S. at 20.96Some of those pro-corporate assumptions and biases wererevealed by Powell himself. See Memorandum from Lewis F.Powell Jr. to Eugene B. Sydnor Jr., Chairman, Education Com-mittee, U.S. Chamber of Commerce, Aug. 23, 1971, <http://old.mediatransparency. org/story.php?storyID = 22>. The Cham-ber of Commerce published the memo after a reporter exposed it:U.S. Chamber of Commerce, The Powell Memorandum, Wash.

Report, Supp. No. 2900, 1971.97Bellotti, 435 U.S. at 777.98Id. at 789.99Id. at 790.100Id. at 791.

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liberal context of individual responsibility, regardlessof the odds or attempts at manipulation. Quoting him-self, Powell wrote that ‘‘public debate must not only beunfettered; it must also be informed.’’101

Powell did not assume that unfettered corporatespending would necessarily result in or be required fora well-informed public. He considered that the publichad the responsibility for judging conflicting arguments,not that the public would always do so wisely or thatunlimited corporate expenditures would necessarilyfacilitate the public’s task. His major assumption—aconstitutional baseline and construction of the marketmetaphor tied together—is that government regulationof the marketplace impermissibly impedes citizens’task in the project of self-governance itself.

If the open, unregulated marketplace of ideasserves to protect the public’s responsibility for self-governance from incursion by the state, then it wouldmake no difference to the outcome if the state werein fact correct about the dangers of unlimited corporatespending. Other areas of First Amendment jurispru-dence also hold that it is more important to protectthe public’s responsibility for judging speech than toprotect against the negative effects of certain speakersor speech. Justice Easterbrook’s majority opinion inAmerican Booksellers Association v. Hudnut demon-strates the incredible implications of this value judg-ment, a classic case of American exceptionalism:

Under the First Amendment the governmentmust leave to the people the evaluation ofideas. Bald or subtle, an idea is as powerful asthe audience allows it to be. A belief may be per-nicious—the beliefs of Nazis led to the death ofmillions, those of the Klan to the repression ofmillions. A pernicious belief may prevail. Total-itarian governments today rule much of theplanet, practicing suppression of billions andspreading dogma that may enslave others. Oneof the things that separates our society from theirsis our absolute right to propagate opinions thatthe government finds wrong or even hateful.102

As described above, the First Amendment wouldappear to be a suicide pact, preferring genocide,slavery, and racism to government intrusion uponthe public’s duty to evaluate ideas.

Notwithstanding doctrinal limitations on freespeech, such as fighting words, defamation, and al-lowances for volume, time, place, and manner re-strictions,103 the Supreme Court’s First Amendment

jurisprudence tolerates terribly destructive behaviorand significant risks of social deterioration. In fact,Easterbrook summarizes Supreme Court holdingsthat validate as protected activity the exact exampleshe provided above: ‘‘The ideas of the Klan may bepropagated . The Nazi Party may march througha city with a large Jewish population . . Peoplemay seek to repeal laws guaranteeing equal oppor-tunity in employment or to revoke the constitu-tional amendments granting the vote to blacks andwomen.’’104 If the potential for—or reality of—such evils is no argument against free speech, thenhow could corporate domination of political debatecause the First Amendment to blink?

First Amendment absolutism is not altogether in-different to evils and dangers, however. It simply pos-its that a different evil or danger is more significantthan even the terrible evils of Nazis and Klansmen.This line of Powell’s reasoning provides a hint: ‘‘cor-porate advertising may influence the outcome of thevote [but this] is hardly a reason to suppress it,’’105 be-cause the electorate has the ‘‘responsibility for judg-ing and evaluating the relative merits of conflictingarguments.’’106 In other words, the ban on corporateexpenditures is unconstitutional because it takes thatresponsibility from the electorate and allocates it tothe government.

Judge Easterbrook followed exactly this script inHudnut. He began by conceding that the pornogra-phy ordinance challenged in the case was basedon accurate premises:

[P]ornography affects thoughts . It does notpersuade people so much as change them.

101Id. at 783, n18. Powell added that ‘‘[p]reserving the integrityof the electoral process [and] sustain[ing] the active, alert re-sponsibility of the individual citizen in a democracy for thewise conduct of government are interests of the highest impor-tance.’’ Id. at 788–89.102American Booksellers Association v. Hudnut, 771 F.2d 323,328–29 (1985).103See, e.g., Ward v. Rock Against Racism, 491 U.S. 781(1989), and Renton v. Playtime Theaters, Inc., 475 U.S. 41(1986). For summary of exceptions, see Kathleen Ann Ruane,Freedom of Speech and Press: Exceptions to the First Amend-ment, Cong. Research Serv. (Sept. 8, 2014), available at<https://fas.org/sgp/crs/misc/95-815.pdf>.104Hudnut, 771 F.2d. at 328, citing Brandenburg v. Ohio, 395U.S. 444 (1969), DeJonge v. Oregon, 299 U.S. 353 (1937),and Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied,439 U.S. 916, 99 S. Ct. 291 (1978).105Bellotti, 435 U.S. at 790.106Id. at 791.


It works by socializing, by establishing theexpected and the permissible . Depictions ofsubordination tend to perpetuate subordination.The subordinate status of women in turn leadsto affront and lower pay at work, insult and injuryat home, battery and rape on the streets . ‘[p]or-nography is central in creating and maintainingsex as a basis of discrimination[,] a systematicpractice of exploitation and subordination basedon sex which differentially harms women[,]harm[ing] women’s opportunities for equalityand rights [of all kinds].’107

Rather than validating the constitutionality of theordinance, however, Easterbrook described thesedangers as ‘‘simply demonstrat[ing] the power ofpornography as speech.’’108 Powell described the in-fluence of corporate advertising in the same way:potentially influential in voting behavior but notthereby worthy of censorship. Easterbrook contin-ued, ‘‘All of these unhappy effects depend on mentalintermediation . Hitler’s orations affected howsome Germans saw Jews.’’109 He deemed such in-fluences on culture and socialization ‘‘protected asspeech, however insidious.’’

Easterbrook spelled out the reason for toleratingsuch terrible dangers more fully than Powell:‘‘Any other answer [besides protecting hate speechand pornography] leaves the government in controlof all of the institutions of culture, the great censorand director of which thoughts are good for us.’’110

This self-governance approach to the open market-place does not cling to the myth that the truth al-ways prevails or that there is on every issue anysuch thing as truth in the first place. Easterbrookconceded that sexual discrimination due to pornog-raphy was just like racial bias and anti-Semitism inan important regard: such pernicious changes to cul-ture and socialization were not always ‘‘directly an-swerable by more speech.’’

This reorientation of the metaphor towards self-governance by citizens and away from truth side-steps one of the most important weaknesses in themetaphor as articulated by Holmes: far from a nec-essary condition for truth, an unregulated market forideas may be unrelated or inversely related to truth.As the Canadian Supreme Court has put it, ‘‘Indi-viduals can be persuaded to believe ‘almost any-thing’ if information or ideas are communicatedusing the right technique and in the proper circum-stances . [E]xpression can be used to the detriment

of our search for truth.’’111 Easterbrook and Powellcould concede this point and reach their preferredoutcomes nonetheless.

There is another aspect of Canadian law, how-ever, that would rule out Easterbrook and Powell’sapproach. Consider how the textual limitations onfree speech in the Canadian Charter could makefree speech absolutism impossible in cases involv-ing unlimited political spending, pornography, andhate speech:

1. Everyone has the right to freedom of expres-sion. This right shall include freedom to holdopinions and to receive and impart informa-tion and ideas without interference by publicauthority and regardless of frontiers .2. The exercise of these freedoms, since it car-ries with it duties and responsibilities, may besubject to such formalities, conditions, restric-tions or penalties as are prescribed by law andare necessary in a democratic society . forthe prevention of disorder or crime, for the pro-tection of health or morals, [or] for the protec-tion of the reputation or rights of others.

Although they have not prevented searching judicialreview by Canadian courts,112 such open-ended for-mulations as democratic society and the rights ofothers provide a foothold for the government to reg-ulate the marketplace of ideas. They make it impos-sible for a court to summarily discard argumentsabout democratic integrity or the rights of others,as the Roberts Court has done. And results and rea-soning contrary to Hudnut, Bellotti, and Citizens

United have been obtained under these textual con-ditions, which are also included in the EuropeanConvention on Human Rights.113

107Hudnut, 771 F.2d. at 328–29.108Id. at 329.109Id.110Id. at 330.111R. v. Keegstra, [1990] 3 S.C.R. 697, paras. 66 and 92 (up-holding a criminal prohibition on ‘‘willful[ly] promoting hatredagainst any identifiable group’’ in Criminal Code x 319(2)).112See, e.g., Chaulk v. R (1990), 2 C.R. (4th) 1 at 27–28(S.C.C.), Lamer C.J.C. (explaining the Oakes Test for decidingwhether a law is reasonable in overriding a right under theCharter).113See, e.g., Keegstra, 3 S.C.R. 697 (upholding a limitation onhate speech); Animal Defenders International v. United King-dom, App no. 48876/08, Eur. Ct. H.R. (2013) (validating a pro-hibition on political ads by social advocacy groups).

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The use of a limitations clause to protect democ-racy and secure the rights of others against certain ap-plications of free speech illustrates a major differencebetween mid to late twentieth-century constitutionsand our eighteenth-century Constitution and Bill ofRights. This early vintage provides one of severalkeys to understanding the revision to the marketplacemetaphor in Bellotti. Powell’s application of the met-aphor does in fact relate to an ultimate goal with along jurisprudential tradition behind it. As JusticeBrennan summarized that tradition shortly after Bel-

lotti, ‘‘the First Amendment embodies more than acommitment to free expression and communicativeinterchange for their own sakes; it has a structural

role to play in securing and fostering our republicansystem of self-government.’’114

The central thing to understand about the versionof the self-government tradition manifesting itself inBellotti is its seventeenth- to eighteenth-century mind-set of the people versus the government. That framewas wonderfully productive in the context of support-ers of press freedoms in England during the 1600s,when the monarchy struggled to restrain new technol-ogy through licenses designed to avoid the publicationof seditious and blasphemous speech. The thrust ofthis old self-government frame for a First Amendmentmarketplace of ideas is that of informing the peopleand enabling them to hold government in check.

For example, Justice Sutherland’s 1936 majorityopinion in Grosjean v. American Press traces thisrole of the First Amendment back to ThomasErskine’s defense of Thomas Paine in the 1794Treason Trials in London.115 Quoting Erskine’sdefense, Sutherland stated, ‘‘In the ultimate, an in-formed and enlightened public opinion was the thingat stake; for . ‘The liberty of opinion keeps govern-ments themselves in due subjection to their duties.’’’116

Enlisting the help of a third Thomas, Judge ThomasCooley, Justice Sutherland put informed opinion andpopular discipline of government into a larger context,describing a First Amendment purpose greater thanpreventing censorship: ‘‘‘The evils to be preventedwere not the censorship of the press merely, butany action of the government by means of whichit might prevent such free and general discussionof public matters as seems absolutely essential toprepare the people for an intelligent exercise oftheir rights as citizens.’’’117 The people versus thegovernment was also the framework for Americanrevolutionaries attempting to cast off (once again)an oppressive monarchy.

The Massachusetts law, however, arose in a verydifferent time period from the anti-monarchicalstruggles of early printers and revolutionaries. Bel-

lotti’s willing blindness to this fact is best explainedby the Powell memo itself and the Burger Court’sconservative orientation to questions of law and so-ciety. It was as though they did not see the obvious.As Robert Dahl put it four years after Bellotti,

[T]he twentieth saw the emergence of giant cor-porations whose governments in both their in-ternal and external relations took on manyof the characteristics of the governments ofstates . Because giant corporations bear onlyan illusory resemblance to the relatively small,competitive firms completely subject to themarket in classical and neoclassical theory, pri-vate ownership and the autonomy of enterprisecan no longer draw much reasoned supportfrom the hypothetical virtues sustained by an in-creasingly less relevant model.118

The 1970s in particular was a crucial period inwhich, after decades of New Deal measures, corpo-rate power set its sights on derailing governmentpower some of the time and capturing governmentpower in other instances.119 But Powell’s opinionseemed to assume a unified public battling govern-ment overreach.

Chief Justice Burger himself, concurring in Bellotti,spent pages discussing the First Amendment’s PressClause from that antiquated perspective. His purposewas to suggest ‘‘caution in limiting the First Amend-

ment rights of corporations as such,’’ citing the ‘‘evo-lution of traditional newspapers into modern corporateconglomerates.’’120 Indeed, Burger situated corpora-tions, including media conglomerates, in the sameposition as emerging presses in the sixteenth and

114Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587(1980) (Brennan, J., concurring). See, e.g., Alexander Meikle-

john, Free Speech and Its Relation to Self-Government

18–19, 22–27 (1948).115Grosjean v. American Press, 297 U.S. 233 (1936).116Id. at 247–248.117Id. at 249–250.118

Robert A. Dahl, Dilemmas of Pluralist Democracy

110 (1982).119See generally Mark Blyth, Austerity: The History of a

Dangerous Idea (2015), and David Harvey, A Brief His-

tory of Neoliberalism (2007).120Bellotti, 435 U.S. 765, 802 (Burger, C.J., concurring) (em-phasis added).


seventeenth centuries, and cast democratic govern-ments at the state and federal levels in the role ofa jealous monarchy:

The liberty encompassed by the Press Clause .merited special mention simply because ithad been more often the object of official re-straints. Soon after the invention of the print-ing press, English and continental monarchs,fearful of the power implicit in its use andthe threat to Establishment thought andorder—political and religious—devised re-straints, such as licensing, censors, indicesof prohibited books, and prosecutions for se-ditious libel, which generally were unknownin the pre-printing press era. Official restrictionswere the official response to the new, disquiet-ing idea that this invention would provide ameans for mass communication.121

Under these historical conditions, government re-sponsiveness to the will of the people could onlybe obtained by restraining the government. It wasreasonable enough, then, to strike down regulationsand reserve to the public, like it or not, their inalien-able responsibility to sort things out.

Powell and Burger appeared incapable of enter-taining another possibility, however. If the publicwas stratified along socio-economic lines and corpo-rate political spending served to augment that consid-erable inequality for purposes of capturing politicalpower, then government responsiveness to the willof the people (or just the necessary space for self-governance) would require regulations to preventthe wealthy from dominating the rest of the popula-tion. This course of action could be undertakenthrough Buckley’s and Roth’s formulation of the pur-pose for the open marketplace, not Grosjean’s injunc-tion against regulations. Predating Grosjean is ChiefJustice Hughs’ 1931 majority opinion in Stromberg

v. People of State of California. Stromberg discusses‘‘[t]he maintenance of the opportunity for free politi-cal discussion to the end that government may be re-sponsive to the will of the people’’ and calls thisinstrumental relationship ‘‘a fundamental principleof our constitutional system.’’122

The temporal explanation for the Burger Court’santiregulatory push falls flat, not just as a functionof early twentieth-century case law but also as afunction of the republican form of governmentitself. Though essentially generative of the Ameri-

can project, governmental tyranny was not theonly foundational concern of the free speech clause,much less the Constitution as a whole. As WilliamEdmundson summarizes the ‘‘Enlightenment con-stitutionalism’’ of the late eighteenth century, ‘‘thepremise that sovereignty, i.e., the ultimate authorityto make and enforce law, inheres in the People itselfis primary.’’123

The refusal to divorce the First Amendment fromrepublicanism can be seen not only in Buckley’s andRoth’s formulation of the market metaphor andStromberg’s formulation of free political discus-sion but also in the doctrine of tiered scrutiny ap-plied to judge all such cases. The very allowancefor government interests important enough to war-rant restrictions on speech and association proveslongstanding judicial recognition that governmentregulation is not necessarily the enemy. In the end,the First Amendment’s lack of a formal limitationsclause does not explain the outcome variations be-tween the United States, Canada, and the EuropeanCourt of Human Rights on questions of political fi-nance.124 Rather, the explanation lies in JusticePowell’s and Chief Justice Burger’s choice to con-strue government regulation of the political market-place as constitutionally infirm per se and unlimitedspending as optimal.

Final confirmation soon came that the choice be-tween an unregulated marketplace and a regulated

121Id. at 801–802 (Burger, C.J., concurring).122283 U.S. 359, 369 (1931).123Jeremy D. Farris and William A. Edmundson, PoliticalPolitical Theory Theory 5 (reviewing Jeremy Waldron’s Polit-

ical Political Theory) (in progress, on file with author)(drawing upon Gordon Wood, The Origins of American Consti-tutionalism, in The Idea of America: Reflections on the

Birth of the United States 171–187 (2011)).124Instead of striking down expenditure limits and the politicalequality rationale as seen in Buckley, the Canadian SupremeCourt has stated that ‘‘the political equality of citizens [] is atthe heart of a free and democratic society.’’ In terms of anopen marketplace, the Canadian Court alleged that expenditurelimits would open up access to more voices in the political di-alogue and therefore empower voters ‘‘to exercise their right ina meaningful and informed manner.’’ Harper v. Canada (Attor-ney General) [2004] SCC 33 at para. 91. The European Court ofHuman Rights, meanwhile, has approved of a ban on politicalads by social advocacy groups in the interest of ‘‘prevent[ing]the distortion of crucial public-interest debates.’’ The Courtexplained that without such a ban ‘‘powerful financial groups .could obtain competitive advantages in the area of paid adver-tising and thereby curtail a free and pluralist debate, of whichthe State remains the ultimate guarantor.’’ Animal Defenders,supra note 113, at paras. 99 and 112.

112 KUHNER

marketplace was entirely up to the Court, and not atall an inevitable consequence of the First Amend-ment’s negative framing (‘‘no law . ’’) or itsabsence of a limitations clause (in text, not doc-trine). Justice Rehnquist’s surprisingly unanimousopinion in Federal Election Committee v. National

Right to Work Committee (NRWC) established thatFirst Amendment rights could be outweighed bya state interest in limiting corporate power overofficeholders.

Applying strict scrutiny but noting that ‘‘neither theright to associate nor the right to participate in polit-ical activities is absolute,’’125 the Burger Court unan-imously stated:

[S]ubstantial aggregations of wealth amassed bythe special advantages which go with the corpo-rate form of organization should not be convertedinto political ‘‘war chests’’ which could be usedto incur political debts from legislators . [I]nBuckley . we specifically affirmed the impor-tance of preventing . the eroding of public con-fidence in the electoral process through theappearance of corruption . . These interests di-rectly implicate ‘‘the integrity of our electoralprocess, and, not less, the responsibility of the in-dividual citizen for the successful functioning ofthat process.’’126

At this stage, the Court’s choice between (a) self-governance as a regulated space that could bereasonably expected to produce democratic respon-siveness and (b) self-governance as a law-free zoneof unequal citizens and corporate conglomeratesdepended on the context of the case. The choice cer-tainly had ideological elements, but these elementssometimes yielded to key facts, such as NRWC’scorporate contributions to candidates.

The Rehnquist Court

Justice Rehnquist’s ascension to the chief justice-ship on September 26, 1986, was itself a major vic-tory for the ‘‘democratic responsiveness’’ version ofthe market metaphor. As chief justice, Burger haddissented in Buckley on the grounds that ‘‘[t]he con-tribution limitations infringe on First Amendmentliberties [and t]he system for public financing ofPresidential campaigns is . an impermissible intru-sion by the Government into the traditionally pri-vate political process.’’127 Although the nation had

never attempted a public financing system for pres-idential races, Burger concluded that such a systemwould necessarily abuse governmental power, andhe assumed that this abuse would be worse thanthe abuse of private power. ‘‘There are many priceswe pay for the freedoms secured by the First Amend-ment,’’ he wrote. ‘‘[T]he risk of undue influence is oneof them, confirming what we have long known: Free-dom is hazardous, but some restraints are worse.’’128

This expresses the antique view that we in the UnitedStates have more to fear from government than any-thing else. Needless to say, this distrust of governmentevolved during a period when the government rarelypromoted political inclusion, political equality, or dem-ocratic integrity, and when high inequality benefittedthe government itself, as in the cases of mercantilismand aristocracy.

Prior to assuming the chief justiceship, Rehnquist’sopinions on money in politics foreshadowed a differentera, one in which the Court would cease its knee-jerkreaction against the state and come to see it as some-thing other than a tyrannical, monarchical power intenton censoring the publications of small print shops.Rehnquist’s opinions also foreshadowed an awakeningto the fact that, nationally and globally, the greateststructures and sources of power have shifted awayfrom the state, taking up residence in a globalizedeconomy free, by historical measures, from state con-trol. Finally, these newer economic sources of powerwould be viewed not as adjuncts to self-governanceand an open and competitive marketplace of ideasbut rather as a threat to the same. Grafted onto today’sconditions, the unregulated market metaphor then be-comes not just a laissez-faire command but a pluto-cratic one as well.

Regarding the state and the power of corpo-rate influence, Rehnquist’s Bellotti dissent made abasic, but powerful point: ‘‘[a] State grants to abusiness corporation the blessings of potentiallyperpetual life and limited liability to enhance its ef-ficiency as an economic entity.’’129 Rehnquist thenreflected on its implications. ‘‘I would think thatany particular form of organization upon which

125Federal Election Committee v. National Right to Work Com-mittee, 459 U.S. 197, 207 (1982).126Id. at 207–08.127Buckley, 424 U.S. at 235 (Burger, C.J., dissenting).128Id. at 256–57.129Bellotti, 435 U.S. at 825–26 (Rehnquist, J., dissenting).


the State confers special privileges and immunitiesdifferent from those of natural persons wouldbe subject to regulation.’’130 Validating the Massa-chusetts law, Rehnquist stated that ‘‘the Statemight reasonably fear that the corporation woulduse its economic power to obtain further benefitsbeyond those already bestowed.’’131 Justice Whitedrove home its own creation the point with Fran-kensteinian flare: ‘‘The State need not permit toconsume it.’’132

Pursuing this modern-day sensibility to privatepower, Rehnquist’s and White’s dissenting opinionsriffed off of each other. White wrote that corporations‘‘may, if not regulated, dominate not only the economybut also the very heart of our democracy, the electoralprocess.’’133 Justice Rehnquist agreed: ‘‘It might rea-sonably be concluded that [corporate advantagesgranted by the state], so beneficial in the economicsphere, pose special dangers in the political sphere.’’134

All of this amounts to the opposite assessment madeby Chief Justice Burger—not just an assessment ofthe state as a victim instead of an aggressor but alsoundue influence as an existential threat to the politicalorder. Indeed, Rehnquist’s dissenting opinion in Bel-

lotti and his unanimous opinion in NRWC might beparaphrased as ‘‘Government regulation of the market-place of ideas is hazardous, but the undue influenceof corporate power over the marketplace of ideas isworse.’’

Justice White argued that corporate expendi-tures ‘‘seriously threaten[ed] the role of the FirstAmendment as a guarantor of a free marketplaceof ideas.’’135 His reasons were astute, beginningwith the observation that the state interest in playwas ‘‘not one of equalizing the resources of opposingcandidates or opposing positions, but rather of pre-venting institutions which have been permitted toamass wealth as a result of special advantages ex-tended by the State for certain economic purposesfrom using that wealth to acquire an unfair advantagein the political process.’’136 Surely individual respon-sibility for self-governance could not be fruitfully ex-ercised under such distorted conditions. Furthermore,how could an unregulated marketplace home to tre-mendous power imbalances produce the politicaland social changes desired by the people?

Rehnquist’s tenure as chief justice lasted al-most 20 years, but key quotations from just threecases suffice to illustrate the Court’s democracy-promoting use of the market metaphor from 1986to 2006. Furthermore, those three cases happen to

be the pressure points for the Roberts Court’s radi-calization of the metaphor.

Federal Election Committee v. Massachusetts

Citizens for Life (MCFL).137 The Court heard argu-ments in MCFL on October 7, 1986, just two weeksafter Chief Justice Burger’s retirement. The caseconcerned a federal prohibition on the use of corpo-rate treasury funds to ‘‘make an expenditure in con-nection with any federal election.’’138 Known asx 441b and contained in FECA, this particular lawprovided that such expenditures must be financedby a segregated fund containing only voluntary con-tributions.139 A host of requirements relating to thestructure and operation of such a fund were alsospecified by the law. Unincorporated organizationsengaging in political advocacy faced far fewer re-strictions and obligations, however. JusticeBrennan’s majority opinion discussed the require-ments facing nonprofit corporations at great length,concluding that they ‘‘may create a disincentive fororganizations to engage in political speech.’’140

This disincentive was central in the Court’s determi-nation that the law infringed upon the First Amend-ment. Only Justices Marshall, Powell, O’Connor,and Scalia joined the portions of Brennan’s opinionthat held the independent spending restriction un-constitutional as applied to MCFL.141 Still, MCFLwas, after all, a nonprofit corporation devoted to ed-ucational and political activities.142

A key theme in Justice Brennan’s majority opinionwas the need to protect the integrity of the open mar-ketplace, a brave assertion that an unregulated politi-cal marketplace would not automatically serve thesocially valuable purpose ascribed to it by JusticeHolmes.

130Id. at 826–27.131Id. at 826.132Id. at 809 (White, J., dissenting).133Id.134Id. at 826 (Rehnquist, J., dissenting).135Id. at 810 (White, J., dissenting).136Id. at 809.137479 U.S. 238 (1986).138See x 316 of FECA, 90 Stat. 490, 2 U.S.C. x 441b.139By segregated funds, the law had in mind ‘‘a political com-mittee expressly established [by the corporation] to engage incampaign spending.’’ MCFL, 479 U.S. at 258.140MCFL, 479 U.S. at 252–256, 254.141Id. at 263.142For more information on MCFL, see <www.masscitizensforlife.org/about/history>

114 KUHNER

Th[e law’s] concern over the corrosive influ-ence of concentrated corporate wealth reflectsthe conviction that it is important to protectthe integrity of the marketplace of politicalideas. It acknowledges the wisdom of JusticeHolmes’ observation that ‘‘the ultimate gooddesired is better reached by free trade inideas—that the best test of truth is the powerof the thought to get itself accepted in the com-petition of the market.’’143

At one point, Brennan recognized that the problemwith corporate political spending is that ‘‘resourcesamassed in the economic marketplace may be usedto provide an unfair advantage in the political mar-ketplace.’’144 But his primary concern was morespecific—not just that corporations could deploygreater wealth than natural persons but also thatthis wealth distorted the market when employedwithin the political marketplace.

Brennan had in mind Buckley’s assumption that‘‘the financial resources available to a candidate’scampaign . will normally vary with the size and in-tensity of the candidate’s support.’’145 Recall that thisassumption is integral to the instrumental purpose thatBuckley ascribed to the market’s unfettered inter-change, that of producing the social and politicalchanges desired by the people. If the volume of cor-porate spending overwhelmed individual spending,but it was sufficiently correlated with public support,then an unregulated marketplace of ideas might leadto democratic responsiveness. If not, it would leadto the domination of the few over the many.

Resuscitating this concern in 1986, Brennan musthave been aware of its role in Justice White’s dis-senting opinion in Bellotti:

Ordinarily, the expenditure of funds to pro-mote political causes may be assumed tobear some relation to the fervency withwhich they are held. Corporate political ex-pression, however, is not only divorced fromthe convictions of individual corporate share-holders, but also, because of the ease withwhich corporations are permitted to accumu-late capital, bears no relation to the convictionwith which the ideas expressed are held by thecommunicator.146

MCFL was a case about a nonprofit corporation de-voted to a pro-life agenda that raised money through

humble means, however; and so Justice Brennanproposed a less confrontational route to vindicatingJustice White’s concerns.

He began by paraphrasing Buckley: ‘‘Political‘free trade’ does not necessarily require that allwho participate in the political marketplace do sowith exactly equal resources . Relative availabilityof funds is after all a rough barometer of public sup-port.’’147 He then converted what would generallybe a tenuous descriptive claim into a fact-sensitiverule. When the claim is true on the facts of thecase, then the organization in question will be con-sidered ‘‘not [to] pose [a] danger of corruption’’ ornot to represent ‘‘the potential for unfair deploy-ment of wealth for political purposes.’’148 When itis false, then x 441b’s justification is valid, and therestriction is constitutional as applied.

From here, Brennan circled back to JusticeWhite’s critical assessment. ‘‘The resources inthe treasury of a business corporation,’’ Brennanwrote, ‘‘are not an indication of popular supportfor the corporation’s political ideas.’’ Rather,‘‘[t]hey reflect instead the economically motivateddecisions of investors and customers.’’ His conclu-sion: ‘‘The availability of these resources maymake a corporation a formidable political pres-ence, even though the power of the corporationmay be no reflection of the power of its ideas.’’149

The actual power of one’s ideas once expressedin the political market is not Brennan’s concern.His rule is applied earlier in time. It stipulates thatthe money one has to devote to expressing one’sideas within that market must itself be a function,however roughly, of the power of one’s politicalideas. This relates to whether the money a corpora-tion collects is a function of its commercial goodsand services or its explicit political purposes. InMCFL’s case, that money was collected by an ear-nest and transparent political appeal to the publicin a variety of fora—mailings and garage sales,for instance. There is no reason to doubt that thepublic donated funds to MCFL on the basis ofagreement with MCFL’s political message and

143MCFL, 479 U.S. at 257.144Id.145Buckley, 424 U.S. at 56.146Bellotti, 435 U.S. at 810.147MCFL, 479 U.S. at 257.148Id. at 259.149Id. at 258.


activities. As Brennan stated, MCFL’s resources‘‘are not a function of its success in the economicmarketplace, but its popularity in the political mar-ketplace.’’150 Because MCFL is not a ‘‘traditionalcorporation organized for economic gain,’’ Brennanconsidered x 441b to be unconstitutional as ap-plied.151 He wrote that x 441b insisted on segregatedfunds in order to ensure that the political moneyavailable to a corporation ‘‘in fact reflect popularsupport for the political positions of [its] commit-tee.’’152

Brennan’s opinion ought to be taken as a herculeaneffort to save the market metaphor from conversion tothe dark side. It was powerful enough, progressivelyspeaking, that Justice Marshall joined it instead of sid-ing with Chief Justice Rehnquist’s more left-leaningfour-justice dissent, one premised on blanket distrustof political activity carried out through the corporateform. Justice Brennan revealed in footnote ten of theopinion his view that economic theories did not havea monopoly on the First Amendment, normativelyspeaking. Citing Brandeis’ Whitney v. California con-currence, Brennan endorsed a non-economic view ofthe state—whose purpose was described as ‘‘mak[ing]men free to develop their faculties’’—and of represen-tative government—in which ‘‘deliberative forcesshould prevail.’’153 What Brennan had done, however,was to reground the market metaphor as an economi-cally inspired theory about how to produce profoundlydemocratic objectives. The market metaphor was in-strumental in essence, not normative.

Chief Justice Rehnquist took a harder line in hisdissenting opinion, describing corporate politicalparticipation as a slippery slope that legislative bod-ies had every right to avoid. Joined by JusticesBlackmun, Stevens, and White, Rehnquist acknowl-edged that ‘‘large and successful corporations withresources to fund a political war chest constitute amore potent threat to the political process than lesssuccessful business corporations or nonprofit corpo-rations.’’154 He concluded, however, that ‘‘these dis-tinctions . are ‘distinctions in degree’ that do notamount to ‘differences in kind.’’’155 He wrote thatsuch distinctions are for the legislature to draw, notthe judiciary, and that prophylactic measures are ap-propriate in the case of ‘‘groups that organize in thecorporate form.’’156

From today’s perspective, this moment in 1986warrants a pause. Chief Justice Rehnquist, nomi-nated first by President Nixon and then by PresidentReagan for the chief justiceship, had prioritized the

distinction in kind between corporations and peopleover a distinction in degree between non-profit cor-porations organized for political purposes and for-profit corporations. Moreover, he had been joinedby another Nixon nominee, Justice Blackmun, anda Ford nominee, Justice Stevens. And Justice White,though a Kennedy nominee, was not a partisan figureon the Court.

Meanwhile, Justice Powell himself had comearound to Brennan’s democratically repurposedmarketplace of ideas, a most incredible turn ofevents. Powell could have concurred, mind you, tooppose Brennan’s reasoning but subscribe to the re-sult obtained. Moreover, two Reagan nominees, Jus-tices O’Connor and Scalia, joined Brennan andPowell in retaking the marketplace for civic ends.It was, as of this moment in time, common sensefor Republicans and Democrats on the Court to ei-ther oppose corporate political power outright orto hold that corporate political spending was consti-tutionally protected only when correlated with pop-ular support for the corporation’s ideas.

Austin v. Michigan Chamber of Commerce

(1990).157 Austin is the best-known case express-ing an objection to corporate political power. Passedin 1976, the Michigan Campaign Finance Actallowed corporations to make independent expendi-tures against or in favor of candidates for state of-fice.158 The Act did not allow corporations to use

150Id. at 259.151Justice Brennan specified ‘‘three features [of MCFL] essen-tial to our holding[:] First, it was formed for the express pur-pose of promoting political ideas, and cannot engage inbusiness activities. If political fundraising events are expresslydenominated as requests for contributions that will be used forpolitical purposes, including direct expenditures, these eventscannot be considered business activities. This ensures that polit-ical resources reflect political support. Second, it has no share-holders or other persons affiliated so as to have a claim on itsassets or earnings. This ensures that persons connected withthe organization will have no economic disincentive for disas-sociating with it if they disagree with its political activity.Third, MCFL was not established by a business corporationor a labor union, and it is its policy not to accept contributionsfrom such entities. This prevents such corporations from serv-ing as conduits for the type of direct spending that creates athreat to the political marketplace.’’ Id. at 263–64.152Id. at 258.153Id. at 257, n.10.154Id. at 268 (Chief Justice Rehnquist, dissenting).155Id.156Id. at 269.157494 U.S. 652 (1990).158Such expenditures are defined in id. at 655.

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their treasury funds for this purpose, however.Instead, it required corporations wishing to be polit-ically active to establish a segregated, political fundfor which money could be drawn only from a lim-ited group of people associated with the corpora-tion. This requirement stood in the way of theMichigan Chamber of Commerce’s plan to usegeneral treasury funds to support a candidate forthe Michigan House of Representatives. Accord-ingly, the Chamber sought an injunction againstthe Act’s enforcement.159

The reasons behind the Chamber’s political ac-tivities are no mystery. Counting over 6,000 for-profit corporations among its list of 8,000 members,the Chamber’s purposes included:

[T]o promote economic conditions favorableto private enterprise; to analyze, compile, anddisseminate information about laws of inter-est to the business community and to publi-cize to the government the views of thebusiness community on such matters; . toreceive contributions and make expendituresfor political purposes and to perform anyother lawful political activity.160

These first two purposes go a great distance towardsdescribing the thrust of all profit-motivated corpo-rate political activity, making Austin the paradig-matic case on corporate political influence. TheChamber’s purposes, coupled with its vast corporatemembership, distinguished it from MCFL, whichwas devoted to a single ideological issue and wasentirely independent from business corporations.

Because Justice Thurgood Marshall’s majorityopinion began by conceding that ‘‘the use of fundsto support a political candidate is ‘speech’’’ and thatthe Chamber’s corporate status ‘‘does not remove itsspeech from the ambit of the First Amendment,’’161

Marshall was bound to examine whether a compellingstate interest existed and whether the Act’s provisionswere narrowly tailored to uphold that interest.

The grounding of the new compelling govern-ment interest to be identified was immediately clear:

[S]tate-created advantages [such as limited li-ability, perpetual life, and favorable treatmentof the accumulation and distribution of assets]not only allow corporations to play a dominantrole in the Nation’s economy, but also permitthem to use ‘‘resources amassed in the eco-

nomic marketplace’’ to obtain ‘‘an unfair ad-vantage in the political marketplace.’’162

That unfair advantage in the political marketplacewas the evil at hand, and wealth was the means ofachieving it, but what was its underlying cause?Neither the lack of correlation between corporategeneral treasury funds and popular support for thecorporation’s political ideas nor the possession ofgreat wealth stood at the core of the new compellinggovernment interest. ‘‘[R]ather,’’ Marshall informedus, ‘‘the unique state-conferred corporate structure

that facilitates the amassing of large treasuries war-rants the limit on independent expenditures.’’163

Marshall considered the segregated fund require-ment to be justified even in the case of corporationsthat do not possess ‘‘significant amounts of wealth,’’because ‘‘they [still] receive from the State the spe-cial benefits conferred by the corporate structureand present the potential for distorting the politicalprocess.’’164

Austin registers a procedural objection to corporatewealth employed within the political sphere: that of‘‘an unfair advantage’’ by corporations over naturalpersons and unincorporated associations. Justice Mar-shall situated that unfair advantage in the context ofa distinction between the ‘‘economic marketplace,’’where resources are amassed, and the ‘‘political mar-ketplace,’’ where resources are employed.165 Thisseparation between marketplaces, one belonging tothe economic sphere, the other to the political sphere,is Austin’s central analytical postulate. All the rest—the reference to fairness and the greater focus onstate-created advantages than on quantity of wealth—flows from this elementary yet profound distinction.

The Rehnquist Court’s framing of the marketmetaphor can only be understood with this separa-tion between marketplaces in mind. Justice Mar-shall vindicated Michigan’s regulation as targetinga ‘‘different type of corruption in the politicalarena: the corrosive and distorting effects of im-mense aggregations of wealth that are accumulatedwith the help of the corporate form and that have

159These facts are detailed in id. at 654–656.160Id. at 656.161Id. at 657.162Id. at 658–59 (quoting MCFL, 479 U.S. at 257).163Id. at 660.164Id. at 661.165Id. at 659.


little or no correlation to the public’s support for thecorporation’s political ideas.’’166 The new state in-terest validated by the Court consisted of the corro-sion and distortion of the political marketplacecaused by its entanglement with legally privilegedentities from the economic marketplace. FollowingBuckley and MCFL, the Court had once againinsisted on a correlation between the volume offunds devoted to ideas and the public’s support forthose same ideas. The question, as always, is howelse could an unfettered interchange of ideas possi-bly be expected to produce the political and socialchanges desired by the people? Aggregations ofwealth, not reasonable government regulations (amere segregated funds requirement), interfere withthe proper role of the political marketplace in pro-ducing democratic responsiveness.

McConnell v. FEC.167 Thirteen years after Aus-

tin, the Rehnquist Court once again affirmed thatconcentrated capital poses a danger to the market-place of ideas. The case arose from Senator McCon-nell’s challenge to the constitutionality of the 2002McCain-Feingold Act (BCRA). The BCRA bannedthe use of ‘‘soft money’’ by federal candidates, of-ficeholders, national party committees, and stateand local committees that wished to affect federalelections. It also required corporations and unionsto establish segregated funds for running issueads, preventing corporations from relying on theirgeneral treasury funds. The majority opinion citedAustin’s ‘‘corrosive and distorting effects of im-mense aggregations of wealth . [with] little or nocorrelation to the public’s support’’ and describedit approvingly as having been repeatedly validatedby the Court.168 The Court chided the plaintiffsfor ‘‘conceiv[ing] of corruption too narrowly.’’169

It reminded them of Congress’ legitimate interestin curbing ‘‘undue influence on an officeholder’sjudgment, and the appearance of such influence.’’170

There is a most curious commonality between theprogressive components of McConnell, Austin, andBuckley: they all arise from cases decided in 1957.Recall how Buckley’s stipulation that the marketmetaphor served the cause of democratic respon-siveness came from Roth, handed down in 1957.Austin and McConnell’s preoccupation with aggre-gated wealth’s corrosive and distorting influencecame from another 1957 case, U.S. v. International

Union United Automobile, Aircraft and Agricul-

tural Implement Workers of America (‘‘Auto Work-

ers’’).171 Auto Workers’ facts were highly similar toMcConnell and Austin: Congress had limited polit-ical contributions and expenditures by corporationsand unions in connection with federal elections.172

The government alleged that the union had fundedits political expenditure from the union’s dues, notby voluntary political contributions.173 This wasakin to the Chamber of Commerce making its ex-penditure from general treasury funds.

Joined by Justices Burton, Clark, Minton, Har-lan, and Brennan, Justice Frankfurter validatedthe following concerns: ‘‘the corroding effectof money employed in elections by aggregatedpower;’’174 ‘‘‘the power of wealth threaten[ing]to undermine the political integrity of the Repub-lic;’’’175 ‘‘‘the great railroad companies, the greatinsurance companies, the great telephone compa-nies, the great aggregations of wealth . using theircorporate funds, directly or indirectly, to send mem-bers of the legislature to these halls in order to votefor their protection and the advancement of their in-terests as against those of the public;’’’176 ‘‘‘secretpurchase of organizations, which nullifies platforms,nullifies political utterances and the pledges madeby political leaders in and out of Congress;’’’177 andincreasing contributions and expenditures that ‘‘‘en-danger[] the endurance of our Republic in its purityand in its essence.’’’178

Justice Frankfurter evidently shared in these con-cerns. He began the majority opinion with a remark-able statement: ‘‘The concentration of wealthconsequent upon the industrial expansion in thepost-Civil War era had profound implications forAmerican life. The impact of the abuses resulting

166Id. at 660.167540 U.S. 93 (2003).168Id. at 205.169Id. at 150.170Id.171U.S. v. Int’l Union United Automobile, Aircraft and Agricul-tural Implement Workers of America (UAW-CIO), 352 U.S.567 (1957) [hereinafter Auto Workers].172See id. at 568–69, quoting 18 U.S.C. x 610 (June 23, 1947, 61Stat. 136, 159).173See id. at 585 (‘‘the indictment charged appellee with havingused union dues to sponsor commercial television broadcastsdesigned to influence the electorate to select certain candidatesfor Congress in connection with the 1954 elections’’).174Id. at 582 (discussing congressional concern).175Id. at 570 (quoting historians).176Id. at 571 (quoting Elihu Root).177Id. at 573 (quoting Perry Belmont).178Id. at 574 (quoting Samuel Gompers).

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from this concentration gradually made itself felt bya rising tide of reform protest.’’179 He described thepopular view as holding that ‘‘aggregated capitalunduly influence[s] politics’’180 and described theaim of the statute in question as ‘‘not merely to pre-vent the subversion of the integrity of the electoralprocess’’ but also ‘‘to sustain the active, alert re-sponsibility of the individual citizen in a democracyfor the wise conduct of government.’’181 This wasthe Austin majority opinion in a nutshell.

Recall how Bellotti’s anti-government, First-Amendment absolutism had rested on a notion ofself-governance prominent in the seventeenth toeighteenth centuries, a time when the state itselfwas rightly conceived of as tyrannical. Austin andAuto Workers were ensconced in their own, morerecent era, one beginning with the end of the CivilWar, industrialization, and the rise of the RobberBarons. Sometimes objections to the power of ag-gregated capital on the marketplace of ideas werelodged in economic terms. This was the case, for ex-ample, in Red Lion Broadcasting Co. v. FCC, whichvindicated ‘‘fair coverage’’ requirements on thegrounds that ‘‘[i]t is the purpose of the First Amend-ment to preserve an uninhibited marketplace ofideas in which truth will ultimately prevail, ratherthan to countenance monopolization of that mar-

ket.’’182 Other times those objections were lodgedin democratic terms, as in Auto Workers’ referencesto ‘‘the advancement of [corporate] interests asagainst those of the public’’ and ‘‘the power ofwealth . undermin[ing] the political integrity ofthe Republic.’’183

Austin and McConnell’s reference to ‘‘corrosiveand distorting effects of immense aggregations ofwealth’’ resuscitated those same concerns in referenceto the 1980s–2000s, a time well known to have pro-duced tremendous aggregation of wealth in a fewhands and a threat to the Republic in the form of dem-ocratic unresponsiveness, political inequality, and pub-lic cynicism. Buckley, MCFL, Austin, and McConnell

fused liberalism’s emphasis on freedom, diversity, andcompetition with republicanism’s dedication to thepublic interest, elimination of privilege, and devotionto truly representative and responsive governance.Articulated in those cases as a vehicle for obtainingdemocratic results, the market metaphor could havegone on to justify the constitutionality of new cam-paign finance reforms or even to revisit Buckley’s in-tolerance of expenditure limits on individuals andcampaigns. The opposite occurred instead.

The Roberts Court

Justices Kennedy, Scalia, Thomas, Alito, and ChiefJustice Roberts required all of one sentence in Citi-

zens United to dispatch Auto Workers, Austin, andMcConnell’s concern over undue influence and thecorrosive, distorting effects of aggregated wealth.

Austin interferes with the ‘‘open marketplace’’of ideas protected by the First Amendment.184

Needless to say, the Court omitted Buckley andRoth’s democratic explanation for the First Amend-ment’s protection of the marketplace of ideas. Dem-ocratic responsiveness was no longer on the Court’smind.

The Roberts Court pushed a different form of re-sponsiveness instead, one contrary to elementarynotions of democracy. ‘‘The fact that speakers[employing general treasury funds during the elec-tion period] may have influence over or access toelected officials does not mean that these officialsare corrupt,’’185 the notion began. But rather thanending the matter there, as a limited definition ofcorruption that excludes access and influence onthe basis of wealth, the Court went on to validatethis quintessentially plutocratic dynamic. ‘‘Favori-tism and influence are not . avoidable in represen-tative politics,’’ Justice Kennedy’s majority opinionpronounced. ‘‘It is in the nature of an elected repre-sentative to favor certain policies, and, by necessarycorollary, to favor the voters and contributors whosupport those policies,’’ he continued.186

Kennedy then converted these sad reflections onpolitical life, indeed some of the reasons for cam-paign finance reform in the first place, into a neces-sary status quo, a formal redefinition of democracy:

It is well understood that a substantial and le-gitimate reason, if not the only reason, to cast avote for, or to make a contribution to, one can-didate over another is that the candidate willrespond by producing those political outcomes

179Id. at 570.180Id. at 571.181Id. at 575 and 590.182395 U.S. 367, 390 (1969) (emphasis added).183Auto Workers, 352 U.S. at 571 and 570.184Citizens United v FEC, 558 U.S. 310, 354 (2010).185Id. at 359.186Id.


the supporter favors. Democracy is premisedon responsiveness.187

With this remark, all the pieces fit into place. Aus-

tin’s condemnation of undue influence, that corro-sive and distorting power of aggregated wealth,now runs contrary to the open marketplace ofideas protected by the First Amendment becausethe marketplace has been redefined. Rather thanan unfettered interchange of ideas for purposes ofproducing the political and social changes desiredby the people, the marketplace now protects the un-fettered interchange of ideas (and corporate expen-ditures) for purposes of producing the political andsocial changes desired by donors and spenders.

Four years’ time and massive public outcry did notcause the Roberts Court to reconsider. Instead thesame five justices doubled down on their redefinitionof representative governance in McCutcheon v. FEC.‘‘Ingratiation and access,’’ Chief Justice Robertsoffered, ‘‘embody a central feature of democracy—that constituents support candidates who share theirbeliefs and interests, and candidates who are electedcan be expected to be responsive to those con-cerns.’’188 His remark came in a case that overruledthe aggregate donation limits left untouched byBuckley. Setting individual donors free to give over$123,200 to candidates and party committees, theCourt insisted that ‘‘the possibility that an individualwho spends large sums may garner ‘influence over oraccess to’ elected officials or political parties’’189 isnot a form of corruption. And so political responsive-ness to multimillion-dollar donors and corporationsspending from general treasury funds became thenew definition of democratic governance.

As though to remove any remaining doubt aboutthe propriety of unequal representation, this newmarketplace of ideas fashioned so as to producethe changes desired by donors and spenders, Citizens

United explicitly condemned Buckley’s, MCFL’s,Austin’s, and McConnell’s concern about correlation:

It is irrelevant for purposes of the FirstAmendment that corporate funds may ‘‘havelittle or no correlation to the public’s supportfor the corporation’s political ideas.’’. Allspeakers . use money amassed from the eco-nomic marketplace to fund their speech .Many persons can trace their funds to corpora-tions, if not in the form of donations, then inthe form of dividends, interest, or salary.190

While the Rehnquist Court had separated the eco-nomic marketplace from the political marketplace,the Roberts Court fused them together again. Unequaloutcomes in the economic marketplace are notgrounds for limits within the political marketplace.That lack of correlation between popular support,on the one hand, and political donations and expen-ditures, on the other hand, no longer justifies cam-paign finance restrictions. The economic inequalitybehind unequal political expenditures has becomenatural and appropriate within the political sphere.Its results—ingratiation, access, and favorable lawsand policies—are as of this day ‘‘a central featureof democracy,’’ which is, after all, ‘‘premised on re-sponsiveness.’’

Recent cases on an asymmetrical fundraising re-gime and public matching funds offer clues to theRoberts Court’s decision to enlist the marketplacemetaphor in the service of responsiveness to wealth.The essence of the question was, as in Bellotti, themeaning of self-governance. Criticizing the Million-aires’ Amendment contained in BCRA, JusticeAlito stated that ‘‘[t]he Constitution . confers uponvoters, not Congress, the power to choose the Mem-bers of the House of Representatives . and it is adangerous business for Congress to use the electionlaws to influence the voters’ choices.’’191 He thenreminded the government that it ‘‘is forbidden to as-sume the task of ultimate judgment, lest the peoplelose their ability to govern themselves.’’192 Campaignfinance reform was, however, popular with the gen-eral public, and it was the people’s representativeswho had enacted the BCRA to begin with.

This observation applies with additionalstrength to the matching funds mechanism atissue in Arizona Free Enterprise v. Bennett,which was enacted by popular referendum.193

Buckley treated public financing as compatiblewith the open marketplace and self-governance,but the Roberts Court took the Congress and theState of Arizona to task for providing ways forcandidates facing better-financed rivals to keep

187Id.188McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014).189Id. at 1438.190Citizens United, 558 U.S. at 351.191Davis v. FEC, 554 U.S. 724, 742 (2008).192Id.193Arizona Free Enterprise Club’s Freedom Club PAC v. Ben-nett, 564 U.S. 721 (2011).

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up, whether through the receipt of public match-ing funds or the right to collect larger privatedonations. Perhaps this is why Chief Justice Rob-erts refined Justice Alito’s phrasing in Bennett:‘‘[T]he whole point of the First Amendment isto protect speakers against unjustified govern-ment restrictions on speech, even when those re-strictions reflect the will of the majority. Whenit comes to protected speech, the speaker issovereign.’’194

Perceiving the undemocratic flavor of these state-ments, Justice Kagan defended Arizonans who‘‘wanted their government to work on behalf of allthe State’s people,’’ calling the matching fundsmechanism ‘‘a law designed to sever political candi-dates’ dependence on large contributors . [and] en-sure that their representatives serve the public, andnot just the wealthy donors who helped put themin office.’’195 The implication is clear: by ‘‘thespeaker’’ Chief Justice Roberts really meant ‘‘thespender.’’

The chief justice removed all doubts about this in2014, when his majority opinion in McCutcheon v.

FEC addressed Buckley’s democratic version of themarket metaphor directly. The last vestige of popu-lar sovereignty stood in Buckley’s view that the pur-pose of the unfettered exchange of ideas was that of‘‘bringing about [the] political and social changesdesired by the people.’’ The McCutcheon dissenters,led by Justice Breyer, seem to have forced the ma-jority to reach the issue. They approvingly quotedone of the Court’s early formulations, tying ‘‘the op-portunity for free political discussion to the end thatgovernment may be responsive to the will of thepeople.’’196 The dissenting opinion went on to con-clude that ‘‘the First Amendment advances not onlythe individual’s right . but also the public’s interestin preserving a democratic order in which collectivespeech matters.’’197 It described the influence oflarge donors as breaking ‘‘the constitutionally nec-essary ‘chain of communication’ between the peo-ple and their representatives.’’198

The majority questioned the dissent’s promotion of‘‘a government where laws reflect the very thoughts,views, ideas, and sentiments [of the people],’’199 con-cluding that ‘‘there are compelling reasons not to de-fine the boundaries of the First Amendment byreference to such a generalized conception of the pub-lic good.’’200 Those reasons included that ‘‘the willof the majority . can include laws that restrict freespeech’’ and that the ‘‘whole point of the First Amend-

ment is to afford individuals protection against suchinfringements.’’201 The Court ascribed to the FirstAmendment the purpose of ‘‘putting the decision asto what views shall be voiced into the hands of eachof us.’’202

Like Bennett, however, McCutcheon’s referenceto individual speakers pertains to monied speak-ers—specifically, those individuals who wish to do-nate more than $123,200 to candidates and parties.The Court was finally entirely forthcoming aboutthat intended meaning, laying out its plutocraticphilosophy for all to see: ‘‘First Amendment rightsare important regardless of whether the individualis, on the one hand, a lone pamphleteer or street cor-ner orator in the Tom Paine mold or is, on the other,someone who spends substantial amounts of moneyin order to communicate his political ideas throughsophisticated means.’’203 This farcical equivalencysums up our present station in which political con-sumers have become the new sovereigns, supplant-ing civic strengths and cornering the market—an

actual market—for political power. The groundsfor striking down the laws at issue in Davis and Ari-

zona Free Enterprise were, after all, that the FirstAmendment could not tolerate any reduction inthe effectiveness of private donations or expendi-tures.204

The explanation for this total condemnationof state-produced equality is illuminating. Bennett

credited Davis for this achievement. Alito’s reason-ing there was unabashedly honest. He seized on thegovernment’s view that the law intended ‘‘to reducethe natural advantage that wealthy individuals pos-sess in campaigns for federal office.’’205 He de-scribed the government plan as enabling Congress

194Id. at 754.195Id. at 784 (Kagan, J., dissenting).196McCutcheon v. FEC, 134 S. Ct. 1434, 1467 (2014). (Breyer,J., dissenting) (quoting Stromberg v. California 283 U.S. 359,369 (1931)).197Id.198Id.199Id. at 1449.200Id.201Id.202Id. at 1448.203Id.204See Bennett, 131 S. Ct. at 2818 (discussing public matchingfunds as ‘‘financ[ing] speech that counteract[s] and thus dimin-ishe[s] the effectiveness of [privately financed] speech.’’ (quot-ing Davis v. FEC, 554 U.S. 724, 736 (2008)).205Davis v. FEC, 554 U.S. 724, 741 (2008) (quoting Brief forAppellee at 33, Davis, 554 U.S. 724 (No. 03-9877)).


to ‘‘arrogate the voters’ authority to evaluate thestrengths of candidates competing for office.’’206

When Alito mentioned voters’ authority to evaluatecandidates’ strengths, he was referring only to finan-cial strength. He made this remarkably clear in apassage that appeared to be taken from a politicalparody or dystopian novel:

Different candidates have different strengths.Some are wealthy; others have wealthy sup-porters who are willing to make large contri-butions. Some are celebrities; some have thebenefit of a well-known family name. Level-ing electoral opportunities means makingand implementing judgments about whichstrengths should be permitted to contribute tothe outcome of an election. The Constitution,however, confers upon voters, not Congress,the power to choose the Members of theHouse of Representatives and it is a dangerousbusiness for Congress to use the election lawsto influence the voters’ choices.207

Absent from Alito’s list of strengths was any attri-bute traditionally thought to be a sound basis forelectoral choice—such as a candidate’s intelligence,policy platform, political record, values, character,eloquence, and personal history. Beyond omittingcivic strengths from his list, Alito’s entire analysisserved to discredit the citizens’ and government’sintention of preventing such genuine politicalstrengths from being overshadowed by the role ofprivate wealth in the political process.

THE SPECTRAL DIMENSION OFCAMPAIGN FINANCE—A CAPITALIST

THEOLOGY

At the end of the day, the Roberts Court gives noreasoned explanation for the radicalization of themarket metaphor. It never addresses the empiricalreality that donors and spenders represent a minis-cule portion of the U.S. population and that unlim-ited spending and aggregate donations enhance thepower of wealthy candidates, constituents, and par-ties. It is worrisome enough that the Court failed toengage philosophically or empirically with Austin

and McConnell’s concern over ‘‘the corrosive anddistorting effects of immense aggregations ofwealth’’ on the marketplace of ideas. More reveal-

ing still, the Court ordered reargument in Citizens

United in order to manufacture, sua sponte, a facialchallenge to those cases.208 Rather than precedent,it is as though Austin and McConnell’s effort to pro-tect the integrity of the political market was an in-stance of fraud or heresy that had to be dealt withthrough extraordinary procedures.

Meanwhile, Buckley and Roth’s longstandingdemocratic purposes for the open marketplace,like Red Lion’s concern over the ‘‘monopolizationof that market,’’209 pass away unrecognized asghosts into the mist. The Roberts Court majorityspoke of them only defensively, as a response tothe four justices who dissented in McCutcheon.The dissenters’ point, that unfettered political dis-cussion is a means to ‘‘the end that governmentmay be responsive to the will of the people,’’210 re-ceived only a rhetorical, axiomatic response of thecategorical sort. According to the majority, the‘‘generalized conception of the public good’’ pro-moted by the dissenters must yield to the constitu-tional imperative of protecting individual speakersfrom majoritarian restrictions on their freedom. Itis as though truth and democratic responsivenessnever had a place in First Amendment jurisprudenceto begin with and the open marketplace was alwaysan end in and of itself. It is as though the dissenterswere judicial activists, pushing some radical notionat odds with centuries of case law, when of coursethe opposite is true—and anyone paying attention

knows it.Despite having been dedicated for almost a hun-

dred years to truth and democratic responsiveness,the open marketplace is now dedicated quite simplyto ‘‘putting the decision as to what views shall bevoiced into the hands of each of us.’’211 Or as theCourt put it in Bennett, ‘‘the whole point of the

206Id. at 742.207Id.208It is for this reason that Justice Stevens wrote, in dissent, that‘‘the question [of x 203’s, Austin’s, and McConnell’s constitu-tionality] was not properly brought before us. . Our col-leagues’ suggestion that ‘we are asked to reconsider Austinand, in effect, McConnell’ would be more accurate if rephrasedto state that ‘we have asked ourselves’ to reconsider thosecases.’’ Citizens United, 558 U.S. at 396 (Stevens, J., dissent-ing).209Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390(1969).210McCutcheon, 134 S. Ct. at 1467 (Breyer, J., dissenting)(quoting Stromberg v. California, 283 U.S. 359, 369 (1931)).211Id. at 1448.

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First Amendment is to protect speakers against un-justified government restrictions on speech, evenwhen those restrictions reflect the will of the major-ity.’’212 These new formulations avoid the substan-tive issues entirely. ‘‘Views’’ and ‘‘speech’’ todayinclude unlimited spending, misleading ads, and aconcerted effort by numerous teams of professionalsto control public perceptions. Individual speakers—‘‘each of us’’—in the majority’s view, include cor-porations, super PACs, billionaires, and fascist zeal-ots. The 99% of Americans who provide a fewhundred dollars or less to campaigns has been ex-cluded from the ‘‘us’’ that defines the reality ofthe First Amendment, the law in practice. What ifa wealthy minority were succeeding in capturingpolitical power and excluding the majority? Whatif the marketplace of ideas had become hostile totruth, representative of extreme views generallybuoyed by wealth, and, on the whole, inimical toself-government? If the majority wished to stop de-mocracy from being converted into a plutocracy,why should it be powerless?

The Roberts Court leaves us with obvious legalmalpractice as regards the reasons for the open mar-ketplace in precedent going back many decades, afailure to engage on the worrisome realities ofundue political influence and access on the basisof wealth raised by an open marketplace for politi-cal spending, a bizarre assertion in Citizens United

and McCutcheon that those worrisome realities arein fact democratic, and, in spite of it all, a strikingsense of self-confidence. All of this calls out foran explanation, but it is better understood as offer-ing one. The new, unregulated market metaphor isso revered, so unwavering, and so powerful that itrequires no justification outside of its own termsand effects. Its supreme status is reason enough.

To understand objects of faith and reverence thatanswer ultimate questions about the purposes ofhuman activity, and yet require no immediateproof or explanation in terms that rational humanbeings would understand, we can look to religion.For example, Ran Hirschl writes that constitutionaltheocracies ‘‘formally endorse and actively supporta single religion or faith denomination [which is]enshrined as the principle source that informs alllegislation and methods of judicial interpreta-tion.’’213 ‘‘[T]he designated state religion,’’ Hirschlcontinues, ‘‘is often viewed as constituting the foun-dation of the modern state . an integral part, oreven the metaphorical pillar, of the polity’s national

metanarrative.’’214 As though the foregoing werenot sufficiently revealing of the Court’s open mar-ketplace design, Hirschl names the specific functionof capitalist dogma in Supreme Court case law.Religion in a constitutional theocracy ‘‘often deter-mines . the scope and nature of some or all of therights and duties’’ and that ‘‘laws must conform toprinciples of religious doctrine[—] no statute maybe enacted that is repugnant to these principles.’’215

Never has a truer functional description of themarket metaphor’s radicalization been typed, andyet its applicability is limited by its stipula-tions about a state religion. The capitalist religionthat concerns us is court-designated, not state-designated in the general sense. Indeed, a distinc-tion between the Court’s work and constitutionaltheocracy on the whole arises from the Court’s op-position to ‘‘state interests’’ of the egalitarian and dem-ocratic sort. While the United States may rightly beconsidered a capitalist state and its dedication to thecause of free markets has long raged at an imperialisticpitch, these general truths omit substantial pieces ofthe American project and experience. The civil rightsmovement’s gradual elimination of social and politicalexclusion on the basis of race and sex culminated instate and federal efforts to eliminate forms of politicalexclusion on the basis of socio-economic status. Ascampaign finance reform legislation swept across thenation, the state religion at work was civic, not eco-nomic, revealing that long-noted countercurrent tocapitalism: the American promise of membership ina community of political equals entitled to determineits own destiny.

Were this not the case, the Roberts Court wouldnot have to keep reminding the Congress and statelegislatures that ‘‘[n]o matter how desirable it mayseem, it is not an acceptable governmental objectiveto ‘level the playing field,’ or to ‘level electoral op-portunities,’ or to ‘equaliz[e] the financial resourcesof candidates.’’’216 It is inaccurate, therefore, to de-scribe capitalism as ‘‘a single religion or religiousdenomination that is formally endorsed by thestate,’’ as in the case of a constitutional theocracy.217

212Bennett, 564 U.S. at 754.213

Ran Hirschl, Constitutional Theocracy 2–3 (2010).214Id. at 3.215Id.216McCutcheon, 134 S. Ct. at 1450 (quoting Davis, Bennett, andBuckley).217See Constitutional Theocracy, supra note 213, at 3.


There is just one ingredient of constitutional the-ocracy on point, ‘‘the constitutional enshrining ofthe religion and its . directives[] and interpreta-tions as . the main source of . judicial interpreta-tions of laws.’’218 The Court’s devotion to the openpolitical marketplace clashes, time and time again,with state and federal efforts to achieve politicalequality, political responsiveness, and democraticintegrity. The Constitution’s text and the state andnational laws regulating the political process arenot inherently capitalistic; only the Roberts Court’splutocratic mode of constitutional interpretation is.

At times, the Roberts Court jurisprudence comesclose to being merely plutocratic, not theocratic.This occurs where the Court comes close to advo-cating rule by or for the wealthy—such as the pas-sages in Citizens United and McCutcheon thatdescribe political access and influence on the basisof wealth as a form of democratic responsiveness;the assertion in Davis that wealth, fame, and awell-known family name are the natural bases forvoters to choose their representatives; and the con-clusion in McCutcheon that political donors arejust as worthy of First Amendment rights as ThomasPaine and the early pamphleteers. Still, the Courtnever explains why access and influence on thebasis of wealth are desirable, why civic strengthsmust not be elevated above financial strengths, orhow exactly large political donors fulfill a vitaldemocratic function such as that exercised by theearly pamphleteers. Because the Court never at-tempts to make a serious argument about whywealth and the wealthy are so vital to the properfunctioning of a democracy, its jurisprudence ismore plutocratic in effect than by nature.

The Court is clearly more comfortable with ruleby and for the wealthy than with hate speech orthe worst forms of pornography. Still, it tends totreat plutocracy like racism and sexual exploitation—as something that the First Amendment compels thegovernment to tolerate. The structure of that argu-ment is quite different from the argument that thegovernment has failed to appreciate the virtues ofwealth, racism, or sexual domination. Hence thecase law is generally plutocratic, racist, and misog-ynistic by implication and possibly even by inten-tion, but not by nature. As regards campaignfinance cases specifically, were the speech at issuespoken or written words, not money, and were thespeakers at issue ordinary citizens, not corporationsand the top .4% of an ever-steeper wealth pyramid,

then the case law might be described as merelyformalistic: a dutiful application of the rule that‘‘Congress shall make no law abridging the free-dom of speech.’’ But the Court’s unregulated openmarketplace, divorced as it is from democratic re-sponsiveness, represents the justices’ own freelychosen foundation for democracy, a metaphoricalpillar that determines the scope and nature of therights in play. The justices made it up and adjustedits meaning through a great many opinions. It istheir own faith expressed through their prophetic,oracular prerogative. Plutocracy alone will notdo—there is a spectral dimension in play, one com-mon to judicial theocracies. But is there any prece-dent for describing judicial review, in the absence ofa state religion, as theocratic?

The great sociologist, Max Weber, offers a moststriking precedent in his critique of ‘‘the emergenceof judge-made law.’’219 In Weber’s view, the sup-posedly ‘‘fixed and stable rules’’ to be applied byjudges were better described, parodied even, as di-vine and magical.220 Those norms, writes Weber‘‘were at first not conceived as the products, or aseven the possible subject matter, of human enact-ment.’’221 Instead, Weber tells us that the legitimacyof the rules to be applied by judges ‘‘rested upon theabsolute sacredness of certain usages . , deviationfrom which would produce either evil magical ef-fects, the restlessness of the spirits, or the wrath ofthe gods.’’222 Weber notes that ‘‘[t]heir interpreta-tion was the task of those who had known them lon-gest, i.e., . the elders of the kinship group, quitefrequently the magicians and priests, who, as a re-sult of their specialized knowledge of the magicalforces, knew the techniques of intercourse withthe supernatural powers.’’223

While changes to such norms were supposedto be impossible, new interpretations ‘‘emergedthrough explicit imposition . through a new charis-matic revelation.’’ Weber calls the emergence ofnew rules through judicial interpretation ‘‘revelationin the literal sense,’’ because ‘‘the new norms foundtheir source in the inspiration or impulses . of the

218Id.219

Max Weber, Economy and Society (1922), Kindle Loca-tion 20,051-76.220Id.221Id.222Id.223Id.

124 KUHNER

charismatically qualified person.’’224 He describesthe men who applied old rules to new facts as‘‘the magicians, the prophets, or the priests of anoracular deity.’’225

Shedding light on Citizens United, Bennett, andother cases where the Roberts Court dispensedwith the plaintiffs’ burden of proving that the regu-lations actually burdened their speech, Weber cites‘‘a formalistic ‘law of evidence’’’ distinguishedfrom ‘‘proof in the modern sense.’’226 The formalistlaw is not that ‘‘proof [be] offered to show the alle-gation of a particular fact to be either ‘true’ or‘false’’’; rather, it concerned ‘‘which party shouldbe allowed or required to address to the magicalpowers the question of whether he was right.’’227

Weber adds that ‘‘[l]ogical or rational grounds fora concrete decision were entirely lacking’’ but still‘‘[t]he verdict had to state that the particular prob-lem had always been dealt with in the particularway . or . that a divine power had decreed thatthe problem should be dealt with in that way inthe specific case in hand or in all future cases,too.’’228 Again, a most apt description of Citizens

United—Austin is bad law because it interfereswith the sacred decree known as the open politicalmarketplace.

Such a conclusory statement would be an appro-priate form of judicial reasoning, charitably speak-ing, if the Constitution itself stated that politicalexpenditures from general treasury funds must beunlimited or that curbing the undue political influ-ence of concentrated capital was an invalid state in-terest. But the Constitution says no such thing, andany honest observer knows the Court to be redefin-ing and then enshrining an old judicial metaphor assuperior to precedent, superior to Congress’ ownconsiderable powers in the context at hand, and su-perior to fundamental democratic values such asequality, integrity, and popular sovereignty, as op-posed to consumer sovereignty. Therefore, the par-allel to a primitive, rudimentary state of law asdescribed by Weber is entirely apt—judicial reviewas not yet adapted to the requirements of evi-dence, deference, stare decisis, honesty in the faceof constitutional silence or ambiguity on point, oreven awareness of operating outside the essentialframework of democracy and inside a differentframework instead, capitalism in this case, but reli-gion or a supreme leader’s in others. In short, theparallel elucidates a colossal violation of the ruleof law.

If the precedent for the Roberts Court’s quasi-religious use of the market metaphor is a rudimen-tary, unearthly version of judicial review itself,then we might as well hope for another surprisingdiscovery. Is it possible that the market metaphoremerged through religious conviction in the firstplace? It is common knowledge that the market met-aphor was formulated by a disobedient class ofsixteenth-century Englishmen who believed thatsubjects of the Crown should not only be able tospeak their minds but also publish their thoughts.King Henry VIII introduced a royal licensing sys-tem to control the press in 1538, seeking to counterthe publication of seditious and blasphemousideas.229 Pushing from common knowledge to theesoteric, we must then ask where, in this early con-text, the notion of truth emerging through opencompetition came from.

Robert Martin notes that, by the mid-1600s,‘‘perhaps the most prevalent argument for press lib-erty . was biblical in its origins, and chapter andverse would sometimes be cited for anyone whomight miss the allusions.’’230 The core of the argu-ment was simple: ‘‘[i]n a fair fight . the truth—God’s Truth—would most certainly prevail.’’231

Consider how the subtitle of Goodwin’s Theoma-

chia, a leading work of the time, summarized thesin of licensing: ‘‘The Grand imprudence of men,running the hazard of Fighting Against God, in sup-pressing any Way, Doctrine, or Practice, concerningwhich they know not certainly whether it be fromGod, or no.’’232 Though other iterations of the daydid not mention God by name, their inspirationand source seemed nothing less than this peculiarconfidence that God’s truth would prevail. This iswell conveyed by William Walwyn, for example:‘‘All mens mouthes should be open, that so errour

224Id.225Id.226Id. at 20,070-99.227Id.228Id.229

Robert W. T. Martin, The Free and Open Press: The

Founding of American Democratic Press Liberty 1640–1800 (2001), just prior to fn 1.230Id. just before fn 15 (accessed via Google Books).231Id. just below fn 14.232

John Goodwin, Theomakhia; Or the Grand Impru-

dence of Men Running the Hazard of Fighting Against

God, in Suppressing Any Way, Doctrine, or Practice,

Concerning Which They Know Not Certainly Whether

It Be from God or No (1644).


may discover its foulness and trueth become moreglorious by a victorious conquest after a fight inopen field; they shunne the battell that doubt theirstrength.’’233 And it is visible as well in the muchquoted Milton—‘‘And though all the winds of doc-trine were let loose to play upon the earth, so Truthbe in the field, we do injuriously by licensing andprohibiting to misdoubt her strength. Let her andfalsehood grapple; who ever knew truth put to thewors, in a free and open encounter?’’234 Miltonstill stands as the principal source of Holmes’ fram-ing of the market metaphor.

If judicial review once accommodated an enig-matic, charismatic, and inspired process of divinerevelation, oracles, and the like, and if the FirstAmendment’s market metaphor emerged from bib-lical notions of truth’s supremacy over falsehood,then surely judicial review and the market metaphorare capable of accommodating a quasi-religiousprocess once again. And speaking of ‘‘the stagesin which the European [and American] mind hasmoved over the last four centuries and the variousintellectual spheres in which it has found the centerof its immediate human existence,’’235 it might evenbe expected that judicial review and the market met-aphor would return to a quasi-religious form.

Carl Schmidt notes that the center of human exis-tence shifted from sphere to sphere in a particularorder that is all too telling: the theological, the meta-physical, the humanitarian-moral, and the econom-ic.236 The theological sphere reigned in the 1500s,just when the press was emerging and facing its firstlicensing controversies, while the economic spherebegan to dominate in the 1800s, with the industrial rev-olution and its ideological and technological precur-sors. Schmidt describes the technical progress of the1800s as so remarkable as to affect ‘‘all moral, politi-cal, social, and economic problems’’ and give rise to‘‘a religion of technical progress . turn[ing] the beliefin miracles and an afterlife . into a religion of techni-cal miracles, human achievements, and the dominationof nature.’’237 Prominent in the late 1800s, the pre-scription of free markets became a preferred modeof encouraging such miraculous progress.

Despite numerous economic crises over the courseof the twentieth century (and even into 2008–2009)that shook popular faith in unregulated markets,marketplace-style thinking has expanded, at leastamong ‘‘the active elite which constitut[es] the re-spective vanguards’’ as Schmidt put it.238 Howcould the elite sell the public on the market, despite

its instability and unequal gains? A second questionis that of extending marketplace thinking to otherspheres, such as politics. Schmidt warned aboutthis expansion, stating that the ‘‘greatest and mostegregious misunderstandings . can be explainedby the erroneous transfer of a concept at home inone sphere . to other spheres of intellectual life.’’239

Understanding both dilemmas, Philip Goodchildcontends that modernity does not actually entail a sec-ular emancipation from spectral systems of belief andsocial organization. He asks whether the rise of mo-dernity is better understood as ‘‘a transformationrather than a rejection of faith.’’240 The new beliefsystem holds that ‘‘[d]istribution[of goods or wealth]has to be effected by its own immanent, independent,or self-regulating order—the market.’’241 What wouldbe required for ‘‘the reorganization of society accord-ing to the ideal of the self-regulating market’’? Gen-erally speaking, the elimination of political andmoral checks on the market itself, as the RobertsCourt accomplished by claiming the democratic do-main in the name of the open marketplace.

In this capacity, the Court took on the priest-likerole of economists described by Robert Nelson,‘‘design[ing] the institutions of society in accordwith the prescriptions of an economic way of think-ing.’’242 The economic priesthood asks if legislationwill ‘‘serve to advance overall economic efficiencyand the long-run productivity of the [political] econ-omy.’’243 Is that what the radicalized market meta-phor accomplishes? Nelson sums up the parallelthat Goodchild constructed between religious and

233Quoted in Divine Right and Democracy 265 (DavidWootton ed., 2003, 1986).234

A Complete Collection of the Historical, Political,

and Miscellaneous Works of John Milton 159 (Printedfor A. Miller at Buchanan’s Head, 1738).235Carl Schmitt, The Age of Neutralizations and Depoliticiza-tions (1929), Telos 130–142, 131 (June 20, 1993).236Id.237Id. at 134. See also Robert H. Nelson, Reaching for

Heaven on Earth: The Theological Meaning of Eco-

nomics 13 (1991) (‘‘In the modern age, . it has become tech-nological advance and economic progress that for many willmerge heaven and earth—no longer a matter dependent on di-vine intervention’’).238The Age of Neutralizations and Depoliticizations, supra note235, at 132.239Id. at 134.240

Philip Goodchild, Theology of Money xii (2009).241Id. at xiii.242

Reaching for Heaven on Earth, supra note 237, at 1.243Id. at 1–2.

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economic faiths: ‘‘If the priests of old usually askedwhether an action was consistent with God’s de-sign for the world, in the message of contemporaryeconomics the laws of economic efficiency andof economic growth have replaced the divineplan’’244—and the free-market, laissez-faire schoolof capitalism embodies some of the stickiest claimsabout how to achieve those ends, notably an open,unregulated marketplace.245

While free-market economics is controversialenough in ordering matters of economic regulation,it is doubly controversial as a source of binding con-stitutional law in cases about elections and cam-paign finance. Imported into politics as the maincriterion for judging political speech, the marketmetaphor allocates political access and influence—political power itself, not just traditional goods andservices. Finally we come to the question that theCourt refuses to answer: What is achieved by lettingthe price system govern campaign finance?246 Whatspecifically does protecting the right to spend anddonate achieve? Why strike down even matchingfunds that add government subsidies to the mixwithout formally limiting anyone? The unregulatedmarket metaphor gives us the privately determinedamount of campaign donations and expenditureswithout any government limit or subsidy thatwould distort that natural level. What is special oroptimal about that market-determined level of polit-ical donations and expenditures?

Goodchild explains what the free market gives usin a string of thoughts that can only be reduced thisfar:

The paradigm of . an imminent order of naturein the practical sphere is the self- regulating mar-ket, a market that regulates itself by an efficientallocation of resources and by independencefrom political or moral interference, and effi-ciency is the sole rational criterion that it admits.[This] attempt to construct a system . hasamounted to a subordination of all other reasonsto efficiency[, . ] a perspective that excludes allothers, willfully making itself morally blind.Why do calls to subordinate economics to ethicalends have no impact? . While a free thinkermay hold any perspective they are capable ofconstructing, a significant perspective has to beexternally validated and this is what an economyachieves. One may make any demand onewishes, but unless that demand is backed up by

money it will be ineffectual. Money is the socialconstruction of effective demand . Economicvalue is not grounded in utility. It is groundedin reflexivity. The value of an asset is the promiseof the money that may be exchanged for it. Thevalue of money is the promise of the assets thatit may be exchanged for. While consumptiongoods hold some value through utility, assetsand money hold value through confidence. Ifmoney is essentially a promise, essentially credit,then its value rests in external confidence or val-uation . [I]f efficiency is measured in terms ofmoney, then economic conduct is entirely regu-lated by what is profitable and only subsequentlyby what is worthwhile. Money only measuresmoney. Free moral and political evaluation is ex-cluded except insofar as consumers can be foundto pay for it . The perspective from which theworld is seen then is that of individuals, corpora-tions or governments with money to spend, notthat of communities of mutual obligation.247

This passage explains the functions of an unregulatedmarketplace for campaign donations and expendi-tures: first, the commodification and quantification(and subsequent measurability) of (a) support for can-didates and parties, (b) demand for and valuation ofpolitical access and influence, (c) demand for partic-ular directions on law and policy; second, and

244Id. at 2.245See generally Fred Block and Margaret R. Somers,

The Power of Market Fundamentalism (2014).246As a caveat, we should allow for the possibility that the Courtcannot answer this question, for it is entirely possible that themajority is acting out a subconscious, historically determinedorientation to politics, one infused by today’s dominant socialsphere, the marketplace. For a compatible line of reasoning,see The Age of Neutralizations and Depoliticizations, supranote 235, at 135 (‘‘The specific concepts of individual centuriesalso derive their meaning from the respective central spheres.One example will suffice. The concept of progress, i.e., an im-provement or completion . became dominant in the eighteenthcentury, in an age of humanitarian-moral belief. Accordingly,progress meant above all progress in culture, self-determinationand education: moral perfection. In an age of economic or tech-nical thinking, it is self-evident that progress is economic ortechnical progress . In a humanitarian-moral age, it is onlynecessary to inculcate morals, whereby all problems becomeproblems of education. In an economic age, one needs onlysolve adequately the problem of the production and distributionof goods in order to make superfluous all moral and social ques-tions.’’).247Philip Goodchild, What Is Wrong with the Global FinancialSystem?, Rethinking Capitalism Conference, Apr. 9, 2010, UCSanta Cruz, available at <https://vimeo.com/12411907>.


relatedly, a tremendous reduction of the inefficiencyassociated with alternative measurements of politicalsupport, including problems of measuring and stabi-lizing, through financial commitment, incommensura-bles such as trust, persuasion, and moral and politicalvalue judgments; third, the exclusion of those unableor unwilling to spend money, including communitiesof mutual obligation, traditionally understood; andfourth, on the basis of all these measurements, the ef-ficient allocation of political resources, with politicaloutcomes, goods, and services flowing to those whovalue them the most (again, economically speaking).

Certainly the functions above describe plutocracy,not theocracy, since there is no mention of believersor non-believers, sunk investments in religious credi-bility, knowledge, training, or experiences, and so on.But the Court’s use and subsequent radicalization ofthe market metaphor represents a theological move.As Rosanvallon puts it, ‘‘The representation of civilsociety as a market . attempts to substitute thepower of an invisible hand, neutral by nature . an ab-stract model of social regulation: objective ‘laws’govern the transactions among men so that no rela-tions of force or subordination need intervene. It isthe equivalent of a kind of ‘hidden god.’’’ 248 Plutoc-racy’s exaltation of money and markets, ideological,faith-based, and ultimately theological, reveals thatplutocracy is not just rule by or for the wealthy. Itis, like all other forms of government, rule in accor-dance with particular value judgments about human-ity, legitimacy, progress, and society’s ultimate goals.

When imported into politics as criteria for popularsupport, political power, and means of sorting out themost efficient use of political resources, includinglawmaking, the unregulated market and the price sig-nals that result therefrom seem to resolve two mainproblems. The first is the problem of politics itself:endless ideological and distributive disagreementsseldom susceptible to principled resolutions but con-sistently wasteful, divisive, and time-consuming,and often enough coercive, polarizing, and violent.After all, those ‘‘communities of commitment’’were not always happy affairs—just look at the his-tory of the family, unions, marriage, and political par-ties. The second problem is transaction costs, not justthe transaction costs of registering and measuringnon-economic support for candidates, parties, andlegislative outcomes, but also the inevitable transac-tion costs of countless concerned parties—includingcandidates, officeholders, notable supporters, and in-dustry groups—who, whether defensively or offen-

sively, find themselves in the position of violatingor circumventing campaign finance restrictions.249

Most specifically, unregulated campaign financeprice signals determine which candidates can affordto mount viable campaigns and sustain them untilthe end. These signals also determine which politi-cal parties will rise or fall as a function of the activ-ities, advertising, and slate of candidates they cansupport. The market-determined offering of candi-dates, parties, and political platforms solves theconsiderable problem of determining what choicesshould be presented to the electorate at the outset.It solves that problem by ruling out candidates andparties that do not appeal to any significant subsetof donors or spenders—i.e., those candidates andparties that appear likely to ignore the wishes ofvested economic interests, might engage in redistri-bution, and might have enough independence ofmind to pursue irrational or inefficient policies,meaning policies that pursue social or ethical func-tions without regard for the maintenance or accu-mulation of wealth along existing lines.

The current regime of unlimited aggregate do-nations and unlimited outside expenditures andcampaign expenditures also affects popular de-mand. Citizens unable or unwilling to back theirpolitical preferences with large donations or ex-penditures will have difficulty obtaining represen-tation and responsiveness. Something similar occurs inmatters of lawmaking where lobbying expendituresprovide lawmakers with clear signals as to the desiresof the most notable groups and industries. Because par-ties with diffuse rather than concentrated interests—such as the general public—have little interest oroften ability to study proposed bills and committeework, lawmakers can continue the plutocratic modeof politics post election with little consequence totheir electability. As a general rule, it is only discon-tinuing this pattern that threatens electability, athreat that takes the form of insufficient campaignfunds or negative ad campaigns by outside groups.

All of this changes with a charismatic self-financingcandidate who has numerous business and investment

248Democracy Past and Future, supra note 68, at 149–150.

249On the new institutionalism and the role of theocracy in solv-ing problems of trust and transactions costs, see Douglas W.Allen, Theocracy as a Screening Device, in The Political

Economy of Theocracy (Mario Ferrero and Ronald Wint-robe, eds., 2009).

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concerns. As a candidate and officeholder, such a per-son need not enjoy such a high level of popularitywith big donors and spenders, nor must he cater toan array of vested economic interests. He might in-stead cater only to his own and interests and others’interests aligned with or strategically positioned toenhance his own. Furthermore, he might pursue ir-rational or inefficient policies when they benefithis financial interests or those of his loyalists.Finally, lobbyists advocating for interest groups’preferred courses of conduct have little financial le-verage over a politician who is wealthy enough toforego their clients’ help. Lobbyists will realize, im-mediately and instinctively, that they must frametheir proposals in terms of courses of conduct thatwill benefit the ruler and the lobbyists’ clients, or per-haps simply in terms of how their clients could servethe ruler himself.

It is unclear whether these functions of plutocracy asa screening device and incentives system lie at the rootof the Court’s ‘‘free market fundamentalism.’’ On theone hand, the Court evinces a ‘‘quasi-religious cer-tainty of [political] market self-regulation . rely[ing]on revelation or a claim to truth independent of . em-pirical verification.’’250 This is an exercise in elevatingthe means of open spending above its ends or effects.On the other hand, the Court has validated the effectsof an open marketplace for political spending since2010. As of the latest case, McCutcheon, the Court de-scribed the ‘‘ingratiation and access’’ achieved by do-nors and spenders as ‘‘embody[ing] a central featureof democracy—that constituents support candidateswho share their beliefs and interests, and candidateswho are elected can be expected to be responsive tothose concerns.’’251 Beyond the Court’s own recogni-tion, the ends are apparent to all. No citizen canavoid seeing the unfettered spending, legislative pricesignals, and tilted balance of law and policy tied upwith the destruction of campaign finance reform; norcan any citizen—much less a highly educated intellec-tual sitting on the Supreme Court—tune out myriad re-ports of rising economic and political inequality.

Such reports, however, are readily tolerated byplutocracy and free-market fundamentalism alike.Consider the remarks of Andrew Carnegie, an orig-inal Robber Baron, on rising inequality:

It is here; we cannot evade it; no substitutes forit have been found; and while the law may besometimes hard for the individual, it is best forthe race, because it insures the survival of the

fittest in every department. We accept andwelcome, therefore . great inequality of envi-ronment; the concentration of business, indus-trial and commercial, in the hands of a few;and the law of competition between these, asbeing not only beneficial, but essential to thefuture progress of the race.252

In this view, aggregated capital is a sign of success,not a threat to the economic or political orders—ifindeed the two can be rightly distinguished. If theeconomically successful want to speak their mindsin politics and if they see fit to gain access and in-fluence, ensuring through donations and expendi-tures that democracy is responsive to them, thenthis could only work for the long-term benefit ofthe nation . even if the nation wishes to legislateto seek a different destiny, one tied to political com-munity and democratic values.

A young Justice Rehnquist objected to the notionof an invisible hand guided by nothing but self-interest, proving himself the most prescient of allthe justices on this score. Penned in 1980, his Cen-

tral Hudson dissent began by noting the Court’s re-peated rejection of regulations on the grounds that‘‘‘people will perceive their own best interests ifonly they are well enough informed and . the bestmeans to that end is to open the channels of commu-nication.’’253 Rehnquist then went on to declare:

Whatever the merits of this view, I think theCourt has carried its logic too far here. Theview apparently derives from the Court’s fre-quent reference to the ‘‘marketplace of ideas,’’which was deemed analogous to the commercialmarket in which a laissez-faire policy would leadto optimum economic decisionmaking under theguidance of the ‘‘invisible hand.’’ . This notionwas expressed by Mr. Justice Holmes . While itis true that an important objective of the FirstAmendment is to foster the free flow of informa-tion, identification of speech that falls within itsprotection is not aided by the metaphorical refer-ence to a ‘‘marketplace of ideas.’’ There is no

250Market Fundamentalism, supra note 245, at 3.

251McCutcheon, 134 S. Ct. 1441.252Quoted in Chrystia Freeland, Plutocrats 9–10 (2012).253Central Hudson Gas and Elec. Corp. v. Public Service Com-mission of New York, 447 U.S. 557, 591–592 (1980)(Rehnquist J., dissenting) (internal quotations removed).


reason for believing that the marketplace of ideasis free from market imperfections any more thanthere is to believe that the invisible hand will al-ways lead to optimum economic decisions in thecommercial market.254

Despite rejecting the marketplace as a metaphoricalmeans for determining protected speech, Rehnquistcited ‘‘market imperfections,’’ a phrase borrowedfrom economic terminology. Its mere utterance,coupled with Rehnquist’s doubts about the invisiblehand’s omniscience, speaks to a hearty rejection ofthe Court’s capitalist theology. If the political mar-ketplace were still intended to produce an informedelectorate, self-governance, truth, or the social andpolitical changes desired by the people, then ‘‘mar-ket imperfections’’ would refer to the conditions in-efficient for or hostile to those ends—such as fakenews, hate and intimidation, and the dominance ofwealthy speakers in campaign finance and outsidepolitical speech.

Rehnquist should have exonerated JusticeHolmes from responsibility, however. Indeed, evi-dence suggests Holmes would have been surprisedby the modern-day use of his metaphor. Writingfourteen years before his Abrams dissent, Holmesdisagreed with the Lochner majority. Noting recentdecisions upholding a similar limitation on miners’work schedules and a prohibition on sales of twodifferent sorts of stock, Holmes reminded his breth-ren that their views on the larger issues underlyingsuch laws are not the test of constitutionality: ‘‘aConstitution is not intended to embody a particulareconomic theory, whether of paternalism and the or-ganic relation of the citizen to the state or of laissez

faire.’’255

Indeed, careful reference to his framing of themetaphor helps to explain and condemn its pluto-cratic results and theocratic application. The observa-tion motivating Holmes’ metaphor is that ‘‘time hasupset many fighting faiths,’’ meaning that there isno certain answer to political issues, only the hopefor arriving at truth through open political debate.256

The market imperfections Rehnquist referred to cer-tainly included capture of and undue influence in themarketplace of ideas itself, such that manipulation—not a search for truth—would occur. And this ideo-logical defense of capture and undue influence, vali-dated by the Roberts Court as the Constitution’s ownunregulated design for democratic responsiveness, isnothing short of one of the fighting faiths to which

Holmes referred. Plutocracy was supposed to havefaded with the Robber Barons themselves, upset bythe time that has elapsed since the Civil War. Thattime bore witness to the prior records of economicand political inequality set within this nation, not tomention the last great instances of socio-economicdomination.

The genius of the unregulated market design is itsapparent openness to democratic faiths, which arefree to compete in the market for dominance.They are not free to regulate the market, mindyou, but only to pool whatever resources they canand compete alongside the wealthy. Essential tothe democratic faith is the foundational sense thatthe market is the wrong mechanism for deciding po-litical questions. All faiths are free to compete infree-market terms. But in practice faiths lent mas-sive financial support enjoy a considerable advan-tage. And even still, this static picture of interestgroups and disparate members of the general public,all competing along financial terms, misses the ulti-mate, most objectionable function of the unregu-lated market metaphor.

Buckley and Roth’s formulation amounted to the in-visible hand: economic competition as a means to thegood of all. The Rehnquist Court’s insistence on a reg-ulated marketplace of ideas, protected from undue in-fluence, distortion and corrosion, corresponded to thewisdom of Keynes that the market would not be effi-cient ipso facto and Galbraith that countervailingpower was necessary to balance the demands of con-centrated capital. Both of these views, however, wereenunciated with democratic purposes in mind; the mar-ketplace was still a metaphor. Then, the Roberts Courtimported into the political marketplace Friedman’s andHayek’s prescriptions that the economy must remainautonomous, ‘‘allowed to govern itself by its ownlaws [and] shielded from ‘outside’ impositions suchas moral views that favor equality, ‘social agendas,’or the particular preferences of elected officials.’’257

Applied to determine the rules for economic competi-tion in the political market, Friedman’s and Hayek’sversion of an open marketplace destroys politics anddemocracy. An economic market then is imputed as

254Id. at 592.255Lochner v. NY, 198 U.S. 45, 75–76 (1905) (Holmes, J., dis-senting).256Abrams, 250 U.S. at 630 (Holmes, J., dissenting).257

Power of Market Fundamentalism, supra note 245, at24.

130 KUHNER

a form of political governance. And the purpose of eco-nomic markets for well over a century has been profitmaximization.

Karl Polanyi described a ‘‘great transformation’’in society when economic production was reor-iented to profit instead of use.258 A great transfor-mation has occurred—or received constitutionalprotection at least—through the Court’s use of themarket metaphor. Goodchild’s description of thetransformation in economics can be altered slightlyto describe the transformation of political speechand democracy:

‘‘If money can be created in the form of politicalcontributions and expenditures for the purposeof obtaining profitable laws and policies, then ef-fective limits to economic growth are removed.There is no shortage of wealth when it can beinvested in politics and repaid at a profit. Speechfor the sake of profit rather than expressionbecame the dominant motivation for politicalactivity and interaction . Economic activity,formerly a limited segment of social life,came to predominate over all other aspectsof social life, including democracy. The regu-lators’ declamations against the evils of cor-ruption and undue influence were unheededby those who saw the evidence of prosperitybrought about through profit.’’259

The market as an end in and of itself is not just a rec-ipe for unlimited campaign speech and the domina-tion of wealthy candidates, interest groups, and the

donor-spender class. It is also a recipe for the privat-ization of areas of society not traditionally subjectedto marketplace rules, as in the political marketplace.To make matters worse, privatized democracy is notjust any market. It is the meta-market, the marketfor determining how all other markets are struc-tured, regulated, or deregulated.

If the radicalization of the market metaphoris allowed to stand, a most elegant solution toPiketty’s concern over justificatory ideology willobtain. Economic inequality, though manifestingand increasing through a slanted landscape oflaws and policies aimed at the concentration ofcapital, will no longer clash with democratic no-tions of popular sovereignty, political equality,democratic responsiveness, or political represen-tation for the simple reason that those notionswill no longer have any purchase in society. Thisdemocratic political theology will have been ren-dered unconstitutional and illogical by the capital-ist governance structure, indeed the one and onlystructure of social ordering—the unregulated mar-ket itself. Like all other industries, politics will berun, openly and officially, for profit.

Address correspondence to:Timothy Kuhner

Georgia State University

College of Law

85 Park Place NE

Atlanta, GA 30303

E-mail: [email protected]

258Karl Polanyi, The Great Transformation: The Polit-

ical and Economic Origins of Our Times (1944).259Altered and adapted from Theology of Money, supra note240, at 11.


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