More than a year later, Citizens United v. FEC, 130 S.Ct. 876, the United States Supreme Court’s notorious decision on corporate free speech, remains bitterly controversial. Many (including me) view it as a disastrous decision. In essence, by equating money with speech and corporations with citizens, it allows corporations, with potentially unlimited wealth, to buy up speech, to corner the market on speech and the very means of communication, and so to determine political outcomes. Totalitarian regimes, such as Nazi Germany and Stalinist Russia, were well aware that control of the media was one of the key prerequisites for gaining and retaining power. The Supreme Court’s refusal to allow appropriate, necessary regulation of corporate speech opens the door to corporate control of speech—and political power.
Naturally, Citizens United follows earlier precedents that paved its way by gradually enhancing corporations’ supposed speech rights and accepting that money equals speech. Similarly, the Supreme Court gradually erased the traditional proper distinction between commercial speech—hucksterism to sell things—and political speech, a process the late Chief Justice Rehnquist resisted, largely alone. So Citizens United results from a longstanding tendency in its direction, although neither the tendency nor the particular outcome was ever a foregone conclusion. Rather, no legal or extralegal factors pushed that tendency off its track.
Why not? Why are we now confronted with the prospect of a return to the Gilded Era, when railroads and other powerful corporations bald-facedly bought and sold congressional seats and entire state legislatures?
I believe there is an underappreciated extralegal factor that powerfully impacted the cycle of American political corruption and reform over the past century and a half: an alternate, challenging world ideology that kept American corporate capitalism on a leash, and on the straight and narrow, from the 1920s through the 1970s, then waned in the 1980s, opening the door to our new Gilded Era.
Namely, Soviet communism.
I am aware of the harshness and horrors of Bolshevism and Stalinism. I don’t celebrate those, as I don’t celebrate the brutal labor exploitation of America’s Gilded Era. I’m just pointing out that, ironically, America’s great enemy helped to keep America decent. Capitalism behaved better when it was not the only game in town.
From the late 1800s until 1917, capitalism forcefully tried to prevent a socialist or communist challenge even from being born. From 1918 through the early 1920s, America and its capitalist allies—Britain, France, and Japan—tried to strangle communism in its cradle by sending soldiers to Russia to help Czarist loyalists defeat the Red Menace, unsuccessfully. But from 1929 through the collapse of the Iron Curtain, communism posed a challenge to world capitalism—and at certain times, notably the Great Depression, it looked as though communism was winning. Throughout the Cold War, as America and Russia dueled for the hearts and minds of the developing world, American leaders knew that America had to look more than just rich to the rest of the world—it also had to look decent, fair, and worthy by non-economic metrics.
Consider civil rights. American capitalism was perfectly happy with lucrative cotton cultivation on slave plantations, and the free market did little or nothing to dismantle racial segregation in the century after the Civil War. But as Martin Luther King, Jr. pointed out, and as American officials recognized, America had little chance of winning the hearts and minds of people of color outside America when those people could see, in newspapers and magazines or on television, people of color inside America being brutalized with fire hoses and police dogs merely for requesting their constitutional rights. America had to dispel those images to keep the developing world from going pro-Soviet.
A similar logic applied to labor relations. Capitalism’s traditional way of defeating socialism was to use spies, thugs, and corporate police forces to break up unions and break the heads of union organizers, most notoriously at the plants of union-hating Henry Ford. But a more sophisticated, successful approach was to assure decent wages and working conditions. This happened not spontaneously by the magic of the free market, but through hard-fought battles, and federal intervention, in the shadow of the communist challenge. That challenge even impacted America’s 1960s environmental awakening: there, too, we had to prove we could do better than the Soviets.
Since the 1980s, there have been no challenges, and American (and global) capitalism is back off the leash, as it was in the Gilded Era. And civil rights progress has largely stalled, environmentalism is dead in the water, unions are on the ropes, and labor standards and conditions have been rapidly backsliding. American leadership in public education is a distant memory, the broad middle class that characterized postwar America is squeezed and eroding, and economic misdistribution and polarization is increasing—much as in the Gilded Era.
In short, without proper regulation from within or a meaningful challenge from without, capitalism, no longer forced to behave, is reverting to its roots and showing some of its true colors not seen for decades. It is starting to act the way that provoked the socialist/communist challenge in the first place. Citizens United is a decision for the new Gilded Era, hearkening back to the railroad lawyers on the Supreme Court who gave corporations whatever they wanted back in the old Gilded Era. And sadly, America, however rich, is looking less decent, fair, or worthy by non-economic metrics.
Apparently, we need a new challenge.
Dr. Scott Dewey
Assistant Director, Scholarly Support and Research Assistant Program
UCLA School of Law, Law Library
385 Charles E. Young Dr. East
1106 Law Building
Los Angeles, CA 90095-1458