Conservative Supreme
Court Justice Samuel Alito is widely acknowledged by legal experts as a
constitutional scholar of super-star prominence. But in a November 15th speech made at a Federalist
Society dinner he made an interesting misstep.
In defending the 2010 decision in Citizens United v. FEC he provided the
rationale for overturning the landmark decision in Buckley v. Valeo.
Reflecting on
public criticism of the 5-4 decision in Citizens United he noted, "The question is whether speech
that goes to the very heart of government should be limited to certain
preferred corporations; namely, media corporations. Surely the idea that the
First Amendment protects only certain privileged voices should be disturbing to
anybody who believes in free speech."
Certainly, he
says, we should not abide free speech protections for only certain privileged
voices. But this is exactly the dictate
of Buckley v. Valeo. This 1976 ruling
decided that Congress could not limit the amount of money an individual could
independently spend on elections because doing so would amount to a restriction
of free speech, albeit only the free speech of the privileged class who can
afford it!
An analysis
of money spent on the 2012 federal elections shows that only 0.37% of
contributors, a privileged few indeed, donated more than $200, but that this
small group accounted for more than 67% of the total spent! In fact, a "privileged few individuals" provided
the bulk of 2012 super PAC funding, and Buckley enforced their right to do so.
If Alito believes his own words, then the Court should reconsider Buckley v. Valeo. This decision enshrined privileged free speech by establishing a property requirement, one excluding those without expendable cash (47% of Americans by a recent CBO report).
Buckley's "money
is speech" doctrine also puts space between members of the privileged class
itself by creating a form of speech which scales with wealth. The more money one has the more speech one
has. This rings Orwellian. Some speakers are more equal than
others. And with the media focus of
modern elections, political speech that effectively reaches the masses is
reserved for the modern aristocracy alone.
So yes, Justice Alito, I agree with you, this is disturbing.
