Free Speech for Whom? And by Whom?

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Police in riot gear charging at and beating protestors
Police in riot gear charge protestors near the White House during a demonstration against the Minnesota police killing of George Floyd, on Monday, June 1, 2020 in Washington, DC. Photo by UPI / Alamy Stock Photo.

Senator Mitch McConnell and his allies passionately defend the “political speech” of the wealthy and primarily white donors who pour millions into super PACs and buy influence in secret. But they are silent when it comes to state suppression of real people who are actually speaking.

For example, when McConnell said that “no individual or group in this country should have to face harassment or intimidation . . . simply because that government doesn’t like the message they’re advocating,” he was not condemning the military force used against peaceful demonstrators outside of the White House in the wake of George Floyd’s death; he was condemning proposals that would require wealthy white donors to be transparent about their dark money political contributions. 

Politicians like McConnell, along with allied groups and judges that McConnell helped install on the bench, insist that their defense of big money in politics is part of their commitment to “free speech:” money is speech, the argument goes, and limits on money in politics therefore limit political speech.

That argument paved the way for corporate- and billionaire-funded super PACs, has been deployed to undermine transparency for political spending, and has been used to argue for eliminating any limits on the amount a person (or corporation) can donate to a politician.

In litigation, Congressional floor speeches, donor meetings, op-eds, and costly ads, the self-appointed free speech defenders have equated legal limits on the amount a person can donate to a politician with a repressive government silencing critics. They suggest political transparency measures will expose donors to physical danger and government retaliation.

Those elites advocating for further deregulation of our campaign finance system seem to have an endless well of sympathy for the free speech rights of wealthy white political donors, and a limitless supply of outrage for the possibility that the government might limit the “speech” of the wealthy few.

But there has been comparatively little sympathy for the Americans targeted by the government for protesting state violence directed at African Americans.

In recent weeks, as government forces have tear gassed, fired upon, and arrested multi-racial groups of regular people engaging in political speech using their voices and their bodies--rather than their money—McConnell and other self-appointed “free speech” defenders have largely been silent.

McConnell has generically referenced the right to peaceful protest, but has had little to say about peaceful protesters being violently cleared from outside of the White House, the use of military helicopters to intimidate protesters using a maneuver described as a “show of force,” or Trump’s threat to deploy the military on U.S. streets.

McConnell even blocked a resolution that would have condemned the government’s use of force against peaceful White House demonstrators. (McConnell’s alternative resolution would instead have praised law enforcement’s “tremendous bravery and honor. . . in the face of rioting, mayhem, and brutal attacks.”)

McConnell and his allies are most ardently committed to “free speech” when speech means money. And the “money is speech” deregulatory push almost exclusively benefits a small handful of white, ultra-wealthy donors who want to spend even more money on politics.

Under current law, average Americans face few realistic limits on their political spending. Only a tiny fraction of Americans can afford to reach or exceed the $5,400 contribution limit for donations to candidates (much less the higher limits for contributions to political party committees), and fewer still could exceed the $10,000 threshold for public disclosure under transparency legislation like the DISCLOSE Act.

Research shows that the small number of wealthy political donors who are at all constrained by current campaign finance laws—and who stand to benefit from an expansion of their “free speech” rights in this area—are overwhelmingly white, male, and wealthy. 

In recent years, McConnell and his allies—particularly the judges McConnell helped install—have successfully eroded many important campaign finance protections, making it easier for a tiny financial elite to influence who is elected and what policies elected officials pursue. Little wonder that many Americans feel like government is not working for them.

The protests in cities across America are a reaction to the racial and power inequities that have remained unaddressed throughout our nation’s history. But the frustration is also fueled by the belief that government only works for the wealthy and well-connected and is incapable of effecting substantive change for real people.

That is not unrelated to the underlying issues of money and power that are amplified by our broken campaign finance system.

This moment calls for systemic solutions. Many of the most effective ways that this country could begin to address structural racial inequities will require at least some sacrifice from the donor class. Yet there is reason to question whether politicians who spend a disproportionate amount of time and political energy worrying about the interests of wealthy white political donors will commit to policies that might threaten their interests.

But lives are at stake, and voters won’t wait much longer.

 

Brendan directs CLC’s work before federal regulatory agencies, such as the Federal Election Commission (FEC).
Kedric is CLC's General Counsel and Senior Director of Ethics