Beyond the Bosses’ Constitution:
Toward a Social-Democratic First Amendment
Jedediah Purdy*
“This Court would stray beyond its powers were it to erect a far-fetched claim, derived from some ultimate relation between an obviously valid aim of legislation and an abstract conception of freedom, into a constitutional right…. The notion that economic and political concerns are separable is pre-Victorian.”
~ Machinists v. Street, 367 U.S. 740, 812–14 (1961) (Frankfurter, J., dissenting)
“The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
~Buckley v. Valeo (per curiam), 424 U.S. 1, 49 (1976)
“The censorship we now confront is vast in its reach. The Government has muffled the voices that best represent the most significant segments of the economy.”
~Citizens United v. Federal Election Commission, 130 S. Ct. 876, 907 (2010) (Kennedy, J.)
Introduction
I. The Court’s Political Economy of Speech
A. Speech, Democracy, and Party Entrenchment
B. A Theoretical and Historical Origin-Point for the Court’s View
II. An Alternative: The Tensions of Capitalist Democracy
A. Distributional Contests and Class Entrenchment
B. Principles for a Democratic First Amendment
1.Neutrality, Right and Wrong
2. Democratic Will-Formation
3. Necessary Redistribution
4. Process and Substance: Democracy and Social Democracy
III. Union Fees and the Shape of Economic Power: Further Defining the Alternatives
A. The Court’s View of Workers’ Interests, and an Alternative
B. Two Ways of Seeing the Inseparability of Politics and Economics
Conclusion
In 2018, American democracy is widely regarded as being in crisis. There is disagreement over whether the root of the problem is partisan polarization, norm erosion, racism, economic inequality, oligarchic capture, something else, or some combination. At a deeper level, there is disagreement over what, exactly, constitutes the crisis of American democracy. Is it the fact of a norm-defying President who has attacked institutions such as the free press, repeatedly questioned the integrity of elections, and openly mixed personal business with affairs of state? Is it the longer-running trend of legislative gridlock and the drift toward executive prerogative in matters ranging from war to immigration? Is it the equally long-standing fact that the views of middle-income and poor citizens have very little influence on government, while the donor class sets and constrains the political agenda? Implicit in these debates is disagreement over a more basic set of questions: What should we hope for from democracy? Is it merely a peaceful way to resolve elite contests for power by appeal to mainly ignorant voters, as Joseph Schumpeter argued? Must it be closely cabined to prevent selfish interest groups from interfering with the liberty and rationality of the market, as Friedrich Hayek and other neoliberals contended? Or does it represent the opposite, a necessary means of social self-defense against market depredations, as Karl Polanyi argued? Might it even be something stronger, a means of genuine self-rule?
Since the First Amendment’s doctrinal blossoming in the twentieth century, its interpretation has been shaped by just such ideas about democracy: what it aims at, what threatens it, how to preserve it. But these days it seems to many critics that the First Amendment has become part of the problem, a source of protection for oligarchic capture, and at best peripheral to other problems such as polarization and norm erosion. A good deal of doctrinal and historical work has addressed these developments. In this Essay, I pursue a line of interpretation that is related but distinct. I contend that in First Amendment doctrine the Justices operate from premises about the workings of markets and politics in a capitalist democracy that are often incompletely articulated, partly theorized, at times not even stated. My goal here is to pick apart the strands of that worldview, ask where they come from and what work they do in lending plausibility or obviousness to the doctrine even before it arrives at familiar modalities of interpretation.
More specifically, I develop this account of the following anti-distributional cornerstone of today’s First Amendment doctrine: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” This per curiam anathema on official distributional judgments in regulating speech—in this instance, the spending of personal wealth in electoral advocacy—has echoed down from the 1976 ruling in Buckley v. Valeo to vindicate corporate campaign spending in Citizens United v. FEC and invalidate conditional public financing in Arizona Free Enterprise Club v. Bennett, among others. This constitutional tendency is powered by a danger that certain Justices see as essential to avert: that current majorities will entrench themselves or their allies by setting the rules of future elections to pick their preferred winners. The Court’s stance against the deliberate allocation of political influence arises, then, from an aversion to democratic distributional and regulatory politics, particularly those concerning political influence itself. In support of this anti-distributional judgment, the Court also embraces optimistic claims about the market ordering of political persuasion: that more spending simply enriches the informational basis of an ultimately democratic decision. This optimism, however, is something of a dodge, a way of evading open acknowledgement that the market, too, will have its distributional effects. The heart of the principle is the Court’s choice of a wealth-based, market-mediated allocation of political influence over an expressly political allocation on the hunch that, in a capitalist democracy, the market allocation represents the lesser evil.
An effective response needs to show the problems with the Court’s idealization of market-mediated persuasion, but it must also address the Court’s anti-distributional political pessimism by making the case for active democratic engagement with the terms of political power itself, centrally including the political power that arises in economic power. In short, the question is what kind of interaction a democratic republic should build between economic and political power, and for what reasons. This Essay thus moves from reconstructing the worldview that supports certain doctrines to addressing the question of what arrangement of market power and political power First Amendment doctrine should aim to cultivate. It concludes in favor of a social-democratic jurisprudence, one that uses political power, democratically expressed, to bring economic power to heel.
In Part I, I elaborate the argument that I have just sketched about the structure and sources of the Court’s campaign-finance cases. In Part II, I develop an alternative picture of the major democratic distortion in the decades since the Court began its current era in the political economy of speech: not the partisan entrenchment of economic regulation and social provision, but the class entrenchment of those with fungible economic-political influence. Turning to the question of what political economy of power is desirable in a democratic republic. I propose that a democratic republic must be able to achieve political will-formation around a creditable idea of the common good. This goal requires a modicum of civic equality, which in turn requires that the polity be able to set the terms of its own will-formation—that is, to legislate on the formation and distribution of political influence, the very topic the current Court puts out of bounds. I conclude by suggesting that this should not be a purely procedural matter, but that a doctrine of democratic permission for legislation may take notice—as the Court’s current jurisprudence furtively does—of the political-economic order it aims to make possible, here one of stronger democracy and greater equality and security. One might call it a social-democratic jurisprudence. In contrast, the Court’s recent First Amendment jurisprudence, with its conceptual annulment and practical embrace of class entrenchment, is the work of a bosses’ Constitution. In Part III, I develop this class-politics political economy further through the First Amendment cases addressing union fees. Viewed across decades, these cases show two sides of the same political-economic coin: recognizing that union advocacy is inherently political, Justice Alito today takes the neoliberal view that state neutrality requires members’ contributions to it to be purely voluntary, while Justice Frankfurter in 1961 argued from the same premise that unions must be able to impose a common voice on their members to perform their political-economic function of building class power in democracy.
I. The Court’s Political Economy of Speech
A. Speech, Democracy, and Entrenchment
The Court’s reasoning in the political-spending cases adopts a metaphor of public, political speech as occurring in an efficient market, “the open marketplace of ideas protected by the First Amendment,” in which “ideas may compete without government interference.” In this marketplace, electoral “expenditure is political speech presented to the electorate,” an offering that “presupposes that the people have the ultimate influence over elected officials.” The purpose of the advertising is “advising voters on which persons or entities are hostile to their interests.” Within this image, political speech (including spending) is thus “an essential mechanism for democracy, for it is the means to hold officials accountable to the people” by presenting voters with competing accounts of their situation and interests. So understood, speech is the cornerstone of “a republic where the people are sovereign.”
These passages serve a specific doctrinal purpose: denying that limits on campaign spending may be constitutionally justified as remedies for “distortion” of political power or “corruption” in the form of undue political influence. The Court’s praise of advertising’s service to democracy serves less as a statement of conviction about the excellence of the marketplace of ideas than as a corollary of the Court’s real point: that government must not be allowed to make distributional judgments concerning political speech and influence. The reason is that “[l]eveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election … and it is a dangerous business for Congress to use the election laws to influence the voters’ choices.” As the Citizens United majority sees it, the current government must not be empowered to allocate advantage in future elections, because that power would be tantamount to picking winners and a sure invitation to self-entrenchment and favoritism.
It is avoiding this summum malum that powers the praise of political advertising and market-style voter choices as a democratic summum bonum. Elections and political debate more broadly are treated as if they were perfect markets because this premise secures them against the vices of political rent-seeking—the appropriation of future political opportunities to one’s own favored groups, outside of the market test of full political competition. So that the political advantage-seeking of lawmakers can be categorically condemned, that of moneyed advocates is categorically affirmed; the status of the latter as the lifeblood of democracy secures the status of the former as a parasitic threat.
This is not to claim that the metaphor of the political perfect market is merely decorative, but rather to point out that it does not carry the weight of the position unaided. Nor could it. The Court’s jurisprudence, accordingly, is not invested in the thoroughgoing coherence or adequacy of the metaphor. As David Grewal and I have emphasized elsewhere, modern arguments for elevating private economic power over competing democratic imperatives tend to have shifting, overlapping aspects: affirmative idealization of the efficiency of market arrangements; moralized identification of the rights and interaction of (a certain legally constituted marketplace) as uniquely compatible with liberty, equality, and dignity; a pessimistic or tragic register insisting that the predictable deficiencies of politics generally or certain democratic institutions in particular prevent us from doing better, even if we might wish otherwise; and a pre-argumentative “common-sense” dimension that implicitly dismisses certain alternatives as “off the table” before the serious argument has begun. It is typical to move among these different registers almost unselfconsciously because they hang together as an ideological worldview. Indeed, the political-spending opinions also invoke the “worth” and “voice” of speakers, as if corporations were marginalized populations in search of dignity, and liberally invoke the language of non-discrimination, almost reflexively borrowing the moral language of First Amendment liberties. So the Citizens United Court announced of the corporate-spending ban, “The censorship we now confront is vast in its reach” and “muffle[s] the voices that best represent the most significant segments of the economy.”
So interpreted, the jurisprudence under examination here confounds the conventional distinction between constitutional visions animated by “hope” and those shaped by “fear.” Rather than say that the Roberts Court and its predecessors in this line of cases have chosen fear of political entrenchment over hope for democratic self-rule, or characterizing the Court as simply hopeful about the role of markets in shaping political speech, it is more informative to appreciate that this vision is composed of selective strands of both optimism and pessimism. Both attitudes are doing work in lending plausibility to the doctrine overall by fitting it to a worldview with definite emphases and rough-and-ready lessons—be wary of this perennial danger (democratic entrenchment), look in a pinch to that institutional anchor of realism and good sense (markets).
The implicit standpoint of the campaign-finance cases, then, is the following. The chief danger in this domain, the constitutional evil to be avoided, is manipulation by the current political class of the rules for subsequent electoral contests, which would “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration” and will receive majoritarian endorsement. Seen in this way, limiting campaign spending is a usurping attempt to predetermine the course of democratic self-rule, just like prohibiting anti-war pamphleteering or banning Karl Marx’s writings. But the Court’s way of averting this hazard involves it in a certain view of how democratic will-formation comes about. In this latter view, voting decisions are fairly characterized on the paradigm of the fully-informed economic agent of neoclassical modeling, who gratefully accepts the helpful data that advertising provides. This upbeat idea that the wealthy, whether through the corporate form or otherwise, are simply submitting arguments for assessment by their fellow citizens, is not an empirical claim about political persuasion and judgment. It is a half-theoretical, half-rhetorical premise. Current First Amendment doctrine tends toward this premise in good part to avoid the problems posed by its rejection of political allocation of political influence.
B. A Theoretical and Historical Origin-Point for the Court’s View
The judicial outlook that I have been sketching emerged before the rise of the “conservative legal movement” that, today, furnishes most of its spokespersons on the bench. Its early articulation was owing to a less specialized, more widely shared sense of the distinctive problems of capitalist democracy and the role of a constitutional order in mitigating them. The world of its early spokespersons was the end of the post–World War Two “great exception,” the last years of a period of widely shared growth, the flattest distributions of wealth and income the country has seen, and a strong role for organized labor in the Keynesian management of the national economy. This period lulled center-left thinkers into imagining that equitably shared growth was a “new normal,” and that economic inequality would take care of itself going forward, at least to the extent that marginalized populations were fairly dealt into the system. The problem, that is, became one not of inequality but of exclusion.
Here, I address a different perspective from that era: that of the worried center-right. From this standpoint, the post-War era presented a threat: Too much political control of the economy, bolstered by unions and by the left, would stifle personal liberty and initiative, leading to some combination of stagnation and tyranny. An emblem of this perspective from elite legal culture was Justice Lewis Powell’s notorious 1971 memorandum to Eugene Sydnor of the Chamber of Commerce, in which Powell called for a full-court press by business in politics, universities, media, and the courts for “the preservation of the system [of free enterprise] itself.” Justice Powell’s memo crystallized a development in twentieth-century conservative jurisprudence that has come to full flower in the twenty-first: an across-the-board resistance to the politics of distribution, in which political spending played a central role.
The laissez-faire, anti-statist strain in U.S. politics, of course, has been a frequently renewed resource since James Madison’s warnings against redistributive “factions” in Federalist No. 10. It defined the right wing of the classically liberal Republican party in the first Gilded Age, and the Liberty League and other enemies of the New Deal recast it for their purposes. When the conservative Reader’s Digest published a polemical summary of libertarian economist Friedrich Hayek’s already polemical Road to Serfdom, an anti-statist, market-first beachhead was announced at the apex of America’s (always incomplete and racially stratified) closest approach to social democracy. Hayek and his fellow Chicago economist Milton Friedman (whom Powell admiringly quoted in his 1971 memo) brought to the defense of markets theoretical sophistication and, especially in Hayek’s case, the ambition to synoptic social theory. By the early 1970s, these thinkers, like Powell, were developing the neoliberal response to a cross-national wave of labor militancy, social-movement discontent, and inflationary pressures (the last widely seen as connected with organized labor’s expectation of regular wage-hikes, even as productivity slowed), which among thinkers of the second Frankfurt School came to be known as the West’s “legitimation crisis.” Hayek and his allies helped the reflective wing of American business to formulate an imperative to restore competitive pressure throughout the economy, and, conversely, to roll back uses of the state that baffled or annulled market competition.
Hayek followed Joseph Schumpeter and other skeptics of robust democracy in holding that such ideas as “society” and “the political community” were merely sentimental mystifications, and distributional politics for that reason nothing better than a semi-organized form of looting. Because Hayek eschewed any claim that the market’s distribution of resources was peculiarly just, his complaint against state-led redistribution was not, despite its connotations, a directly moral defense of property. Rather, it linked a very broadly welfarist set of functional concerns with a libertarianism focused not expressly on claims to private property, but on personal autonomy. (The upshot, however, was to defend property claims very robustly, but at the level of the class rather than the individual.) Hayek contended that the price system’s alignment of incentives with marginal usefulness to others (as expressed in willingness and ability to pay) could not operate where resources were allocated by other means, such as political decisions. With price-coordination impeded, economic order would first slip into inefficiency, then veer inexorably toward outright political command—the only systemic alternative to price-coordination as a way of getting people to do unwelcome work or otherwise contribute to the needs of others. Hayek thus worked out in theory the position that Powell adopted in his memo: “The threat to the enterprise system … also is a threat to individual freedom … the only alternatives to free enterprise are varying degrees of bureaucratic regulation of individual freedom—ranging from that under moderate socialism to the iron heel of the leftist or rightist dictatorship…. [F]reedom as a concept is indivisible. As the experience of the socialist and totalitarian states demonstrates, the contraction of economic freedom is followed inevitably by governmental restrictions on other cherished rights.” Hayek argued that, for democracy so conceived to be viable, the substantive scope of politically open questions must be closely restricted—specifically to exclude questions of distribution.
The Court’s worry about political entrenchment thus has a particular historical paradigm: the self-perpetuating rule of a bureaucratic state on behalf of certain well-organized or ideologically sympathetic interest groups, which Hayek and Friedman joined public-choice theorists such as James Buchanan in warning against as the distinctive hazard of democratic capitalism as seen in the ideologically and jurisprudentially pivotal 1970s. The key to staving off this danger, it was influentially argued on the reputable neoliberal right, was to cordon off questions of distribution from active political contestation.
It was in this setting that the Court announced per curiam that the refusal of distributional judgments was the essential commitment of the Constitution’s protection of freedom of speech. When one tries picturing the goal of averting political redistribution as a jurisprudential keystone, other doctrinal developments form an arch around it. The affirmative-action cases head off distributional judgments and political entrenchment along racial lines, as critics of race-conscious policies have argued from the opinions of Justices O’Connor and Scalia in Croson to Justice Roberts’s opinion in Parents Involved. The Court’s previous treatment of public-sector unions and the oral arguments in Janus v. AFSCME (discussed in part III) suggest a pair of touchstone worries: that the support of public-sector unions might provide a means of political entrenchment, and that the political empowerment of such unions might enable them to foist ruinous distributional demands on local and state governments. The Spending Clause opinions in Sebelius v. NFIB (the Obamacare case), especially the partial concurrence for four conservative Justices, aim at heading off the prospect of Congress’s imposing a redistributional form of social provision on the states via the power of general taxation. In short, the anti-distributional nerve of Buckley v. Valeo and the subsequent campaign-finance cases connects that reasoning both to the rising neoliberal political economy of the 1970s and to a substantial body of post-Warren Court jurisprudence, in a line from the Nixon Justices’ halt of Warren Court and Great Society egalitarianism to the Rehnquist and Roberts Courts’ rollback of the same. Constitutional resistance to redistribution is the heart of the matter, and the constitutional affirmation of distributional decisions—both arising from and supporting democracy—is the nettle that must be grasped in response.
This account is an exercise in historicization (showing how a certain First Amendment doctrine arose in relation to the suppositions of its times) and ideology critique (showing the gap between the world as effectively imagined in the doctrine and the world as it is). First Amendment doctrine here has developed a series of axioms. These include: that political decisions governing the distribution of speech and influence, such as campaign-finance laws, tend to be opaque and self-serving; that the free flow of money into political campaigning will maintain a circulation of arguments among voters and of power among their representatives (i.e., a circulation of elites, a minimalist conception of democratic self-rule); and that elevating the “voices” of the wealthy in particular will contribute to political circulation. From these premises there stems a doctrinal principle: that political spending should be fully assimilated to the marketplace-of-ideas doctrine of the First Amendment, which means treating all-but-absolute protection of campaign spending as a precondition of democratic sovereignty. These premises took their initial plausibility from certain historical conditions. As noted, one of these was the pervasive expectation of equitably distributed growth. Another was the worldview of the Nixon Justices as representative of a moderate, business-oriented elite formed before the new social movements of the 1960s: that anti-business and radically egalitarian politics had gone too far, and the balance had to be re-struck in favor of a stronger political voice for management and capital.
[Transition]
II. An Alternative: The Tensions of Capitalist Democracy
Capitalist democracy welds together two quite different principles for generating answers to the basic problems of social coordination: who plays what roles in cooperation, who gets what resources in distribution, and who has what authority in the meta-cooperative decisions that set the rules of further cooperation and distribution? Capitalist ordering, based on the private ownership of productive resources (including labor power) and their market-mediated allocation in pursuit of highest marginal return, tends persistently to produce inequality in wealth and income. It also produces class stratification, as different social groups play different roles, from investor and rentier to professional to laborer, also in accord with rates of marginal return.
Democratic ordering, by contrast, presents a principle of majority decision-making by members of a community of political equals. To give a democratic response to the basic problems of social coordination is to say that any rules of cooperation and distribution must ultimately take their legitimacy from the collective decision of a community of equals, such as a principle of “social need or entitlement, as certified by the collective choices of democratic politics.” A democratic polity might have good reason to embrace market allocation for any number of purposes, but the use of markets would have its justification in a collective choice among equals; democracy would have to come first. The relation between the two principles of capitalist democracy is most fraught in the domain of political coordination: the allocation of authority in decisions that set further rules of cooperation and distribution, including whether and to what extent to deploy market principles. Here unequal wealth and class stratification tend constantly to undermine the strictly artificial, legally constituted equality of citizens, giving certain classes (the wealthy, professionals, investors) the capacity to set political agendas and control important decisions. This overriding of the democratic principle by the capitalist is the perennial tendency of capitalist democracy. American democracy demonstrates the tendency all too well.
A. Distributional Contests and Class Entrenchment
American democracy is profoundly divided along class lines. As political scientist Martin Gilens concluded, summing up his own research and that of others, “[U]nder most circumstances, the preferences of the vast majority of Americans appears to have essentially no impact on which policies the government does or doesn’t adopt.” The policy preferences of wealthy Americans diverge systematically from those of the general public: significantly smaller shares of the wealthy support substantial redistribution (17% versus 52%), national health insurance (32% versus 61%), affordable college (28% versus 78%), and a living wage (40% versus 78%). Elected representatives themselves are predominantly professional and/or wealthy. Less than 2 percent of members of the U.S. Congress entered politics from blue-collar jobs. It is estimated that at least 50 percent of members of the same bodies are millionaires, and the median net worth of a member of Congress is over $1 million. The disproportionate representation of the wealthy reinforces their disparate influence: “lawmakers from different classes tend to think, vote, and advocate differently on economic issues,” with working-class representatives more likely to support progressive economic legislation and to attend to the priorities of less wealthy constituents.
The influence that wealth exercises over political judgment is not mostly transactional--it is not a matter of bribes, nor of anything resembling them--but structural and social. It is structural in the sense that costly campaigns require constant infusions of money, and political representatives and their staffers know to whom they must pay attention to secure it. It is structural, too, in that a high-dollar influence industry creates an increasing overlap in personnel between politics and lobbying, as politicians who have relied on money directed from the influence industry during their elected careers move over to influence-brokering upon leaving office. The social character of unequal influence is a product of these structural characteristics. Dependence of wealth, the fungibility of public and private roles in the influence industry, and the broader class segregation of American life. Those who hold power know, listen to, are connected with, care about, and are identified with those who--like them--have money.
This is a form of class entrenchment. Reflecting on it suggests that class entrenchment arises readily under capitalist democracy, and may even be fairly described as the default form of politics under that regime. The reasons for this are not obscure. The American political situation just described is an instance of a general tendency. Capitalist economies tend, historically and today, toward high and growing levels of economic inequality. An economy that distributes gains unequally tends to produce successful constituencies that want to sustain their success. They have the means to do so, by virtue of their being economically advantaged. The policies they support maintain or amplify the inequality-producing dynamics that generated their advantages in the first place. The pattern of class advantage will, of course, differ from polity to polity, depending in significant part on the ways in which economic power may be converted to political influence, and vice versa. For instance, campaign donation limits impossible for most voters but within the reach of professional and executives will empower a nexus of those classes and political brokers clustered around parties or their proxies, while unlimited independent expenditures will empower very wealthy political entrepreneurs such as Sheldon Adelson and Tom Steyer. The goal of the campaign finance legislation reviewed and weakened in Buckley v. Valeo was to empower a mix of parties and dedicated volunteers--the archetypical protagonists of “civil society”--to the relative disadvantage of both classes of large donors.
In seeking to avert incumbent and partisan entrenchment, the Court has developed a First Amendment jurisprudence that shields and fosters class entrenchment. It has also made class entrenchment constitutionally invisible by characterizing political spending as a service to equal citizenship rather than undercutting it, defining the structural characteristics of class entrenchment as insufficiently problematic to justify campaign finance regulation, and declaring constitutionally out of bounds the redistribution of political influence toward greater equality. Such redistribution is the signal means for a polity to assert democracy against the default drift toward class entrenchment. Appreciating the structural character of class entrenchment and the roll of political spending in it help to underscore that actively pursuing political equality is the only alternative to that default drift. The Court’s First Amendment jurisprudence simultaneously knocks out this buttress of democracy and obscures why a polity would need it in the first place.
This is what qualifies the Court’s characterization of capitalist democracy as ideology. Its characterization of capitalist democracy generally, its praise of market-modeled elections and its wariness of partisan and incumbent entrenchment, is something less than an ideology. It might be characterized as an imaginary, or a worldview, or simply a set of heuristics: a way of organizing institutions and events into certain patterns of salience, bringing some features to the fore while relegating others to the background, highlighting certain priorities and dangers and discounting others. I take it that all social practices, including forms of reasoning such as legal argument and academic inquiry, occur within imaginative frames of this kind. When I say that the court’s characterization is ideology, I mean something more. These judicial characterizations obscure central features of social and political reality, and, indeed, render them legally unintelligible in ways that facilitate class entrenchment while denying the basic tension within capitalist democracy. To say that jurisprudence is ideological is to say that it mischaracterizes social and reality by denying one or more of its constitutive conflicts and, at the same time, takes sides in those conflicts.
B. Principles for a Democratic First Amendment
So, what should an egalitarian First Amendment jurisprudence do? Here I address this question through a characterization of self-rule under capitalist democracy.
1.Neutrality, Right and Wrong
The first step is to recognize that class entrenchment is a perennial tendency of capitalist democracy, and arises from tensions between the regime’s two competing principles of social coordination. Appreciating this makes clear that, in one sense, the jurisprudential goal of enforcing state neutrality via the First Amendment is a chimera. Any doctrinal elaboration of the First Amendment will go toward forming a specific dynamic between the twinned principles of capitalist democracy, including facilitating or impeding certain forms of class entrenchment. Both neoliberalism and social democracy, for instance, in their American versions have been closely implicated in versions of the First Amendment.
This is not to say that neutrality is impossible or undesirable in doctrine, or that decisions must be outcome-oriented according to the justices’ feelings about in specific cases. If neutrality means avoiding this caricature of unprincipled decision-making, then neutrality is both desirable and achievable. But neutrality has multiple possible forms. It might be consistent with neutrality to permit no private expenditure on political campaigns, running them entirely through publicly financed forums on the strength of volunteer efforts and other shows of popular support; or neutrality might require the doctrines of Buckley and Citizens United. It might be, too, that the best version of neutrality would not involve the direct application of First Amendment doctrine to campaign-finance regulation, but rather would start from a constitutional presumption that such regulation is legitimate, subject to some constraint of reasonableness. Any of these doctrines would be neutral both (1) in the formal sense that they do not require free-roaming, case-by-case judicial judgments about the distribution of political power and (2) in the substantive sense they implement a version of the idea that the state is obliged not to make unfair distinctions among citizens. None, however, would be neutral in the sense of implying no relationship between the competing dynamics of capitalist democracy, economic inequality and political equality. An egalitarian First Amendment jurisprudence should seek a version of neutrality that aims at supporting the defense of political equality against economic inequality.
2. Democratic Will-Formation
A First Amendment jurisprudence concerned to foster, or at least not inhibit, the vitality of democracy equality must be oriented toward collective will-formation that allows the majority to rule. The self-legislation of the majority, binding for all, is the normative core of modern constitutional democracy. Constitutional interpretation should take place with an eye to sustaining the conditions of popular sovereignty, preventing the drift of government into deep or irremediable elite or other minoritarian usurpation.
Collective will-formation requires that the political process be able to resolve disputes by authoritative decisions that produce a conception of the common good. While the content of any common good is notoriously indeterminate and, indeed, would contradict self-rule were it neatly fixed in advance, politics must be able to produce an account of the common good that will be generally recognized as legitimate even as it is contested through further politics. The political production of a common good becomes impossible if citizens pervasively mistrust the results of the political process—for instance, because they doubt the objectivity of voting, they regard the system as irremediably rigged by such means as gerrymandering and influence-peddling, or they come to regard their political opponents as so essentially hostile to their values and interests as to be disqualified from sharing in any common good. For a democratic republic to produce such an account of the common good, there must be no pervasive exclusion from political participation, and the distribution of political influence must not be so marked by inequality that the majority of people who must live under the law cannot regard themselves in any serious sense as having authorized it. A democratic republic requires for its legitimacy the consent of living generations, not simply the inheritance of past political acts. Any government that prevents the current political community from renewing or revising its own basic commitments usurps popular sovereignty.
Constitutional interpretation can play only a relatively modest part in any program to achieve these conditions, and this goes a fortiori for the interpretation of any one part of the Constitution, such as the First Amendment. That being said, the First Amendment has come to be closely connected with the structure of political contestation, and there are significant stakes in its interpretation. At present, First Amendment doctrine presents a substantial barrier to popular sovereignty–renewing measures. An alternative approach should lead First Amendment jurisprudence to permit, even facilitate, the renewal of popular sovereignty, partly by linking the desiderata of democratic will-formation to an account of the political economy of capitalist democracy that is both more realistic about market ordering and more committed to the prerogatives of a democratic polity.
3. Necessary Redistribution
Democracy requires the deliberate and ongoing adjustment of economic power—in a word, redistribution. The posture of distribution-blind neutrality that the Court has adopted in the First Amendment cases discussed here implicitly approves “private” ways of contesting democratic will-formation that tend to undercut democracy by systemically amplifying the influence of the wealthy and super-wealthy and weakening workers’ capacity to organize themselves for collective action.
What sort of constitutional proposal is this? In search of reflective equilibrium, it toggles between a general account of political economy and case-specific resolutions of current disputes—holding the First Amendment compatible with campaign-finance restriction and mandatory dues for represented non-members of public-sector unions. The account of political economy centers on the ideas, developed throughout this Essay, that (1) economic power matters a great deal in democratic will-formation; (2) constitutional neutrality toward the disposition of economic power is impossible in principle, though several different versions of “neutrality” might mark different (and differently permeable) boundaries between public and private orderings of power; and (3) the style of distributional neutrality that the Court has recently adopted undercuts the conditions of democratic will-formation, and (4) can be replaced by a democracy-strengthening alternative.
What judicial posture would draw the connection between these two poles of reflective equilibrium and stitch them together in a style of reasoning? Above all, it would be a posture marked by willingness to accept certain risks on behalf of democratic self-rule. The current Court’s jurisprudence of distributional neutrality in First Amendment law is intensely hostile to legislatures’ taking chances on distributional judgments regarding political power. As discussed earlier, the Court’s current doctrine formalizes (one might say dogmatizes) an interconnected set of political-economic premises: an optimistic one that the market tends of its own accord to achieve a tolerably non-oligarchic economic distribution, and a pessimistic one that democratic politics tends perennially to become mere looting and entrenchment.
Part of the reason a democratic polity rules itself is so that it can address in ongoing fashion the very questions a popular-sovereignty–based constitution such as ours answers at its outset: how its self-rule shall happen, what forms of economic power shall register in political life, and what some of the terms of cooperation shall be among social members. The mere realist point that all public-law decisions are distributional can cut both ways in debates over regulating politics: For instance, one can point out that the post-Watergate statute that Buckley v. Valeo partially invalidated shifted political advantage in favor of those who, for whatever reasons, can commit themselves to canvassing, organizing, party participation and party-building. But from a more ambitiously democratic standpoint, this is precisely the point. A polity can decide, and for good reasons, to favor time-intensive and face-to-face activity over costly and heavily mediated forms of argument. In fact, that is just the sort of decision democratic republics should be able to make over their own future practices.
Lawmaking inevitably and appropriately structures the political process to build up the constituencies and institutions that will channel energy and mobilization into future will-formation. Democratic institutions iteratively reproduce and revise themselves. If they are judicially impeded from revisiting the terms of self-rule, then other forces will establish those terms through drift, the accretion of economic power, and the strategic self-organizing of advantaged industries and classes. The configuration of economic power in relation to political power does not stand still over time, and someone (really many persons and institutions) will give it a shape. If a political community cannot do this work, the work will still happen, by other means and on other terms. What is needed now is not judicial prescription of basic distributional questions; it is only judicial recognition of the democratic prerogative to answer those questions.
4. Process and Substance: Democracy and Social Democracy
Let me give this argument one more turn. It may be that all this concern with the character of democratic self-rule—the impossibility of its distributional neutrality, the affirmative reasons for engaging distribution as part of the ongoing activity of self-rule—is only half the story. Both historical and theoretical reflection suggest that the nexus of constitutional democracy with economic order goes further than democracy’s need for a modicum of egalitarianism, mobility, and responsiveness. In that familiar formulation (albeit one neglected for decades before its recent revival), the ongoing activity of self-rule is the end, and a measure of redistribution of political-economic power is the means.
But earlier constitutional reorientation has also been about the substance of the economic order that it authorized. New Deal jurisprudence authorized a regime of partial corporatism, extensive unionization, social provision through an interweaving of state and private (often employer-based) obligations, and economic planning. It was not only a jurisprudence about the scope and forms of self-rule in a continent-sized and industrial economy, as official functionalist narrations tended to have it. It was also a jurisprudence of permission for (a modest and flawed) social democracy. Conversely, as sketched earlier, the current jurisprudence of distributional neutrality shares its origins with discourses, polemics, and programs that were aimed at blocking and rolling back the (perceivedly) statist egalitarianism of the New Deal and the Great Society, recast as a form of corrupting interest-group entrenchment.
There are many reasons for a polity to deploy markets as its basic economic mode, from efficiency to personal autonomy; but it is quite another thing for the same polity to constrain itself constitutionally to give the resulting economic arrangements a major role in its own future will-formation. When market ordering is constitutionalized in this fashion, it tends to move from being part of a menu of governing strategies that a political community might adopt and pursue to being itself a key determinant of which options even appear on the menu, let alone get chosen. To press off the political table an ongoing engagement with the basic terms of economic cooperation and structure of economic power is to take away half of democracy’s reason for being.
It may be that fairly formal definitions of democracy and constitutionalism are the most conceptually satisfying and judicially administrable, and that these considerations support a cautious approach to any jurisprudence that is self-consciously directed at a certain substance of economic and social life. But the cost of formalism is abstraction from the stakes of self-rule as citizens (and non-citizen social members) in capitalist democracy experience them at any time: as a matter of taming or eliminating arbitrary and overweening exercises and concentrations of power and building up the conditions of dignified, unfrightened existence and activity in a community of relative equals. At any time, these goals take specific institutional forms—unions, election laws, universal health care, the creation of public utilities, guarantees or bulwarks against harassment and exploitation—and constitutional adjudication turns to whether these measures are favored or suspect, authorized or forbidden. Today the issue seems to many of us to be a choice between oligarchy and a democratic-republican renewal. To break the link between economic and political concentrations of power, that renewal may have to move from the market-inflected state-skepticism of the 1970s and 1980s to a posture that understands the mutual constituting of political and economic citizenship in terms that are more social democratic, more committed to the organized power of working people and mobilized citizens in contradistinction to wealth and capital, than any that has counted for much in recent decades. We should consider what it might be like, not just to grit our teeth and acknowledge this conclusion as a lesson foisted on jurisprudence by recent political science and macroeconomics, but to embrace it as part of the horizon of a possible better world.
III. Union Fees and the Shape of Economic Power: Further Defining the Alternatives
In June of 2018, the Court ruled in Janus v. AFSCME that the First Amendment forbids public-sector unions from charging non-member public employees in their bargaining units “agency fees” for employment-related services and advocacy. The Court framed the issue as one of individual liberty from state compulsion. Justice Alito invoked Justice Jackson’s great phrase, “no official … can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Alito warned, “Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning[.]”
As in the political-spending cases discussed in Part I, the Court invoked the dangers of entrenchment and self-dealing, noting that the case arose from a political context in which Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities and sought in bargaining to drive down employee costs. The defendant union instead “advocated wage and tax increases, cutting spending ‘to Wall Street financial institutions,’” and other left-of-center measures. Justice Alito’s presented this account as evidence that “[w]hat unions have to say … in the context of collective bargaining of great public importance” and amounts to political speech that agency fees subsidize, and noted that collective bargaining can also involve “controversial subjects such as climate change, the Confederacy, [and] sexual orientation and gender identity.” Nonetheless, his questioning in oral argument signaled alignment with the Hayek-Friedman-Powell line of concern about the proliferation of broader, materially redistributionist policies that might stem from the entrenchment of political influence. He worried aloud that an empowered public-sector union might “push a city to the brink and perhaps over the brink into bankruptcy.”
Oral argument also indicated that at least one of the justices who joined Justice Alito’s opinion understood the agency-fee requirement in Janus as a violation of the anti-redistribution principle of Buckley. Justice Kennedy pressed the union’s lawyer toward the conclusion that the fee amounted to an impermissible redistribution of political speech and thus to the danger of entrenchment. Justice Kennedy pressed AFSCME’s lawyers to acknowledge that, “if you do not prevail in this case, the unions will have less political influence.” When David Frederick conceded the point, Justice Kennedy replied, “Isn’t that the end of this case?”
In summary, Janus has the same logic as the political-spending cases. At its core is the plaintiff who wishes to determine how his money is disbursed, who aligns the expenditure with speech by showing its relevance to political debate. This individual-rights core, however, is buttressed by structural concerns: the worry that the regime the plaintiff is challenging distributes the power of political influence in a way that entrenches certain established interests--here not elected incumbents, but favored public-sector unions. The worry about distribution and entrenchment of political influence is linked, in turn, with resistance to a specific political outcome that the justices wish to avert: an empowered set of public employees with an agenda of general egalitarian redistribution. Public-sector unions are cast here in the same role as the self-entrenching officials and bureaucrats who figured as the bete noire of the Buckley-era turn to a First Amendment doctrine of anti-redistributionist principle.
A. The Court’s View of Workers’ Interests, and an Alternative
Seen in this bifocal fashion, the Justices’ account is acutely sensitive to some configurations of power—the undue pressure of unions on public officials—and conceptually blind to the non-individualistic form of collective power that unions aim at exercising, not as a dysfunctional side-effect, but as their essential purpose in a scheme of political economy.
The assumption that the associational interest to be protected in unions’ membership and political activity is a negative and individual one—an opt-out—excludes a different way of understanding the relationship of organized labor to democratic will-formation. The interest in refusing unwanted associations is, of course, a privacy interest, one that has great power in many legal domains, from the common-law guarantee against physical invasion to the personal rights of substantive due process. But is the institutional structure of bargaining power and advocacy between large employers and large bodies of workers best understood as a domain of private and voluntary relations, or as a domain of shared arrangements in which participation is in some important respects ineluctable once one is working there? If the economy is a concert of individuals, orchestrated by personal choice, then privacy rights are consonant with it; they protect the same processes that constitute the economic situations of individuals, just as privacy rights in sexual relationships protect the processes that bring us into bonds and take us out again (with no underlying natural law of gender or family giving these a mandatory shape). But on a different view, class structure is part of this economy. Who occupies what role is, of course, decided by the interplay of personal choice and social structure; but that there will be employers and employees, investors and day-laborers, is–for now—fate.
It is because of shared fate that processes of collective will-formation become essential. Politics is not an optional game. It is a response to the fact that for certain purposes people are trapped together—in shared economic regimes, shared regimes of legitimate violence, even partially shared regimes of fact-creation—and there must be some process for determining the rules of those regimes. Democracy is, of course, optional, at both the individual and the systemic levels; but its efforts at collective will-formation are not an alternative to no-politics, but to a different political dispensation. The right way to see unions, on this view, is as akin to political sub-communities. A vote on unionization is more like a constitutional referendum than it is like the election of representatives, and once a union exists it is a forum of collective will-formation within its workplace, appropriately binding on all who are, so to speak, within that jurisdiction. This is so because organized labor presents an essential political-economic counterweight to wealth and capital, an essential institution of rough civic equality. The First Amendment should not be interpreted as protecting personal rights that undercut this democratic institution.
B. Two Ways of Seeing the Inseparability of Politics and Economics
It is ironic that Justice Alito today and Justice Frankfurter toward the end of his career in 1961 should take the same conceptual view of unions’ activity—that it is impossible to separate bread-and-butter economic representation from political advocacy—while drawing opposite conclusions from that insight. For Alito, it means that even mandatory funding of representation is problematic under the First Amendment, because there is no getting politics out of it. Frankfurter’s course of reasoning was the opposite. Where Alito proceeds nominally from a conception of what is political speech (and so the concern of the First Amendment) and finds that it sweeps in all union advocacy, Frankfurter proceeded from the assumption that unions played a legitimate and important role in American self-rule, and reasoned that the activity in which they have historically engaged should enjoy a presumption of constitutionality. For Frankfurter, casting constitutional doubt on the standard legislative mechanisms for funding union advocacy “would be completely to ignore the long history of union conduct and its pervasive acceptance in our political life.” Frankfurter assumed the basically collective character of unions, with its consequence that they cannot do their work if they are unable to generate mandatory forms of collective action, analogizing the speech situation of the union dues-payer to that of the federal taxpayer, and offering as a premise for analogy that a union could not be said to violate its members’ speech interests when it called a strike. What, after all, would a union be if it were not a locus of collective action? It would be like a state that could not? make law.
I offer Frankfurter’s view as a kind of coda to this discussion, and also a bridge to an alternative, an exemplar of a democratic political economy in First Amendment doctrine. In this view, a democratic polity has an interest in structuring economic power and its translation into political power in ways that counteract the structural advantages of wealth and coordination that otherwise strengthen owners and employers. Institutions that balance the power of capital by enabling working people to combine for effective advocacy—in collective bargaining and in the broader contests of politics—should be assumed to be compatible with First Amendment interests unless there is a very strong showing to the contrary. But such a showing must not rest on findings that they impose unity on the voices of their members inasmuch as the union is authorized to represent them, nor that unions might make distributional demands on the state. That would be condemning them for doing their job in the constitutional order.
Conclusion
Progressive engagement with First Amendment doctrine should start by recognizing that any plausible version of civic equality and self-rule requires deliberate political engagement with the terms of self-rule itself. If appropriately constituted majorities cannot decide how majorities shall rule, than other drivers will. Thus point has particular bite in a regime of capitalist democracy, in which historical and contemporary empirics strongly suggest that unequal economic power tends to grow over time and to embed itself in political power. Some legally ordered relationship between political power and economic power is not just inevitable; its substance is of the first importance, because only it can sustain countervailing principles of equal citizenship, common good, and self-rule. In the face of a candidly neoliberal jurisprudence that advances the political domination of the wealthy, it is all the more important to recover and develop a constitutionalism of social democracy.
