Although the Supreme Court’s “weaponiz[ed]” First Amendment
often comes dressed in rhetoric associating political and civic life with an idealized market, it is aimed less at advancing a perfect market than at impeding very imperfect politics. It aims centrally at averting partisan and bureaucratic entrenchment—at preventing political elites from picking future winners from among candidates, parties, and policies.
The problem is that, even if it accomplishes this (a question this Essay does not attempt to answer), it does so at the cost of supporting class entrenchment: the concentration of political power in a relatively small and privileged echelon of Americans.
It does so by constitutionally protecting the translation of unequal wealth into unequal political power. This Essay aims to illuminate the premises about the political economy of capitalist democracy that make these doctrinal outcomes plausible and even seemingly obvious, and to advance an alternative approach.
The Court has put an antidistributional principle at the center of today’s First Amendment doctrine: “[T]he 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’s Freedom Club PAC v. Bennett,
among other consequences.
Prohibiting certain kinds of political choices about distribution, especially of political influence itself, has become a key doctrinal tool for defining government neutrality under the First Amendment.
Its effect, however, is not to avoid distributional decisions but to hand them off implicitly to markets.
An effective response must make the case for active democratic engagement with the terms of political power itself, centrally including the political power that arises from economic power. It must say what kind of interaction a democratic republic should build between economic and political power, and for what reasons. It must offer, that is, a political economy of power. 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.
Part I of this Essay elaborates the argument sketched above regarding the structure and sources of the Court’s campaign-finance cases. Part II develops an alternative picture of the most important distortion of democracy in recent decades: the class entrenchment of the wealthy in political influence. Turning to the question of what political economy of power is desirable in a democratic republic, this Essay proposes 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. The Essay goes on to suggest that this doctrinal pursuit of civic equality should 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, has produced a bosses’ Constitution. Part III develops this approach further through the First Amendment cases addressing public-sector union fees.
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 of 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 bolster decisions holding that limits on campaign spending may not be constitutionally justified as measures to reduce “distortion” of political power or “corruption” in the form of undue political influence.
The Court’s praise of advertising’s service to democracy is a buttress for the view that government must not be allowed to make distributional judgments concerning political speech and influence because “[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.”
It is avoiding this summum malum that powers the praise of political advertising and market-style voter choices as a democratic summum bonum. The Court treats elections and political debate as if they were perfect markets because this premise secures them against the vices of political rent seeking.
The Court’s jurisprudence, accordingly, is not invested in the thoroughgoing coherence or adequacy of the market metaphor. As Professor David Grewal and I have emphasized elsewhere, modern arguments favoring private economic power over democratic countermeasures tend to have shifting, overlapping aspects: affirmative idealization of the efficiency of market arrangements; moralized identification of the rights and transactions of the marketplace as uniquely compatible with liberty, equality, and dignity; a tragic register insisting that the predictable deficiencies of politics generally, or certain democratic institutions in particular, prevent them from doing better than markets can, even if we might wish otherwise; and a preargumentative “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, besides their praise of markets and denigration of politics, the political-spending opinions invoke the “worth” and “voice” of speakers, as if corporations were marginalized populations in search of dignity, and liberally invoke the language of nondiscrimination, 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.’”
In these opinions, however, avoiding the pathologies of politics is the keystone.
The implicit standpoint of the campaign-finance cases, then, is the following: The constitutional evil to be avoided is manipulation by the political class of the rules for later elections, 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 antiwar pamphleteering or banning Karl Marx’s writings.
The Court’s way of averting this hazard involves it in a certain view of democratic will formation. 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 a square confrontation with the problems that arise from its rejection of explicit distributional judgments concerning political influence.
B. A Theoretical and Historical Origin Point for the Court’s View
The judicial outlook sketched above emerged before the rise of the “conservative legal movement” that today furnishes many of its spokespersons on the bench.
Its early articulation arose from a shared sense of the distinctive problems of capitalist democracy and the role of a constitutional order in mitigating them. The social and intellectual world of its early spokespersons was the end of the post–World War II “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.
From the point of view of the worried center-right, the postwar 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.
The influence of this perspective on elite legal culture was evident in Justice Powell’s 1971 memorandum to Eugene Sydnor of the Chamber of Commerce, written shortly before his nomination to the Supreme Court, 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 plays a central role.
The fear of state-led distribution has been a frequently renewed resource in U.S. politics 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 opponents 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 The Road to Serfdom, an antistatist 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 political economist Joseph Schumpeter and other skeptics of robust democracy in holding that such ideas as “society” and “the political community” were sentimental mystifications, and distributional politics a semiorganized form of looting.
Hayek contended, moreover, that abandoning market coordination implied moving toward the only systemic alternative: outright political command of economic life.
He 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.
. . . .
. . . [T]he 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 and denial of economic freedom is followed inevitably by governmental restrictions on other cherished rights.
Hayek argued that, if democracy were to be viable despite these deficiencies, the 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 defense of market ordering, with its accompanying liberties, against the self-perpetuating rule of a bureaucratic state acting on behalf of well-organized or ideologically sympathetic interest groups. Hayek and Friedman joined public-choice theorists such as Gordon Tullock and James Buchanan in warning against this political entrenchment as the distinctive hazard of democratic capitalism.
The key to staving off this danger, it was influentially argued on the 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 in the opinions of Justices O’Connor and Scalia in Croson
and Justice Roberts’s opinion in Parents Involved.
The Court’s treatment of public-sector unions in Janus v. AFSCME (discussed in Part III) suggests 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 National Federation of Independent Business v. Sebelius, especially the joint dissent of four conservative Justices, aim at heading off Congress’s imposing a redistributional form of social provision on the states via the power of general taxation.
In short, the antidistributional nerve of Buckley 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, from the Nixon appointees’ halt of Warren Court and Great Society egalitarianism to the Rehnquist and Roberts Courts’ rollback of the same. Constitutional resistance to redistribution is at the heart of this jurisprudence.
This Part has diagnosed a set of premises about markets and democracy in the Court’s First Amendment doctrine and located an origin point for these in the political, economic, and legal debates of the early 1970s. The next Part provides a larger context for explaining and assessing the Court’s First Amendment doctrine, as well as criteria for marking out a different, more egalitarian and democratic path forward. I argue that a capitalist democracy like that of the United States must manage two competing sets of imperatives: those of marginal productivity aimed at profit and those of social provision and self-rule. While the Justices who have shaped the current doctrine have seen chiefly the danger that politics poses to markets, the greater danger is the threat that capitalism’s dynamics pose to social provision and self-rule. Preserving democracy requires actively fostering the conditions for its success. The kind of redistributive policy that the Buckley Court made anathema is, in fact, indispensable.
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 political 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 the 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 and laborer.
Democratic ordering, by contrast, presents a principle of majority decisionmaking by members of a community of political equals.
To give a democratic response to the basic problems of social coordination is to say that the terms 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 particularly fraught in the allocation of political authority to set the rules of cooperation and distribution.
Wealth and class stratification tend constantly to undermine the equality of citizens (which is always artificial and legally constituted), giving certain classes (the wealthy, professionals, investors) the capacity to set political agendas and control important decisions.
This overriding of the democratic principle by its capitalist competitor is the perennial tendency of capitalist democracy. American democracy demonstrates the tendency well.
A. Distributional Contests and Class Entrenchment
American democracy is profoundly divided along class lines. Professor Martin Gilens concluded, summing up his own research and that of others, that “under most circumstances, the preferences of the vast majority of Americans appear 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 or wealthy. Less than two percent of members of the U.S. Congress entered politics from blue-collar jobs.
It is estimated that at least half of congresspersons are millionaires and that the median net worth of a member of Congress is over $1 million.
The disproportionate representation of the wealthy reinforces their disparate influence: “[L]awmakers 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—not a matter of bribes—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 where 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. Those who hold power know, listen to, care about, and identify 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 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 part on the ways in which economic power may be converted to political influence, and vice versa. For instance, campaign donation limits that are impossible to reach for most voters but within the reach of professionals 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 Thomas 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 large donors and spenders.
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 serving 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 role of political spending in it helps 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 makes the Court’s characterization of capitalist democracy ideological. Its characterization of capitalist democracy generally, its praise of market-modeled elections, and its wariness of partisan and incumbent entrenchment might, taken alone, 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, highlighting certain priorities and dangers and discounting others.
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 political 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? This section addresses 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 the 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 both presuppose and advance a specific dynamic between the twinned principles of capitalist democracy. Among other effects, any version of the First Amendment will tend to facilitate or impede certain forms of class entrenchment.
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 specific cases.
If neutrality means avoiding this caricature of unprincipled decisionmaking, then neutrality is both desirable and achievable. But such neutrality has multiple possible forms. It might be consistent with neutrality to permit no private expenditure on political campaigns, relying on public financing and the strength of volunteer efforts and other shows of popular support. Alternatively, neutrality might require the doctrines of Buckley and Citizens United.
It might be, too, that the best version of neutrality would start from a constitutional presumption that campaign-finance 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 decisions about the distribution of political power and (2) in the substantive sense that they implement a version of the idea that the state is obliged not to make invidious distinctions among citizens.
None, however, would be neutral in the sense of implying no attitude toward the competing tendencies of capitalist democracy: economic inequality and political equality. An egalitarian First Amendment jurisprudence should seek a version of neutrality that aims at supporting political equality against economic inequality.
2. Democratic Will Formation. — A First Amendment jurisprudence concerned to foster, or at least not inhibit, the vitality of democratic 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 usurpation.
Collective will formation requires that the political process be able to resolve disputes by authoritative decisions connected with 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, if 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 contests, 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—distributional judgment.
The posture of distribution-blind neutrality that the Court has adopted in the First Amendment cases discussed here implicitly approves ways of contesting democratic will formation that tend to undercut democracy by systemically amplifying the influence of the wealthy and super wealthy and (as discussed in the next Part) weakening workers’ and others’ capacity to organize themselves for collective action.
An egalitarian First Amendment jurisprudence would be marked by a willingness to accept certain risks on behalf of democratic self-rule. Part of the reason a democratic polity rules itself is so that it can address constitutional questions in an ongoing fashion: 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.
A polity can decide, for instance, 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. An egalitarian First Amendment need not empower judicial prescription of basic distributional questions, but it requires judicial recognition of the democratic prerogative to answer those questions.
4. Process and Substance: Democracy and Social Democracy. — Constitutional jurisprudence is connected with the substance of the economic order that it authorizes. 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 an 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 statist egalitarianism of the New Deal and the Great Society, which its critics 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 future political 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.
Constitutionally forbidding ongoing engagement with the structure of economic and political power takes away much of democracy’s reason for being.
The stakes of self-rule for citizens (and noncitizen social members) in capitalist democracy include 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 against harassment and exploitation—and constitutional adjudication turns, accordingly, to whether such measures are required, favored, permitted, or forbidden. Today the issue seems to many of us to be a choice between oligarchy and a democratic-republican renewal.
To rework 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 and 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.
This Part has framed First Amendment jurisprudence within the context of capitalist democracy, arguing for the necessity of the redistributive policy that Buckley anathematized and for a conception of neutrality that aims explicitly at maintaining a certain relation between economic and political ordering, rather than allowing one to emerge by default. The full implications of this view, of course, are beyond the scope of a single Essay. The next Part offers one application: a diagnosis of the Court’s recent treatment of public-sector union fees as a threat to free expression and an alternative view that understands such fees as essential parts of building the class power that is necessary in a capitalist democracy if it is to remain democratic. It shows, moreover, that this idea is not alien to American jurisprudence. Indeed, Justice Frankfurter believed something along these lines.
III. Union Fees and the Shape of Economic Power: Further Defining the Alternatives
In June 2018, the Court ruled in Janus v. AFSCME that the First Amendment forbids public-sector unions from charging nonmember 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, “[N]o 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 opinion presented these events as evidence that “[w]hat unions have to say . . . in the context of collective bargaining is of great public importance” and amounts to political speech that agency fees subsidize.
It further noted that collective bargaining can involve “controversial subjects such as climate change, the Confederacy, [and] sexual orientation and gender identity.”
Justice Alito’s questioning in oral argument signaled alignment with the Hayek–Friedman–Powell line of concern about the proliferation of 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 pushed the union’s lawyer toward the concession that the fee amounted to an impermissible redistribution of political speech and thus posed a 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?”
That is to say, if the requirement to pay agency fees shapes the political playing field by directing resources to union advocacy, it must violate the First Amendment.
Janus, then, has the same logic as the political-spending cases. At its core is the plaintiff who wishes to determine how his money is disbursed and who connects his money with constitutionally protected speech by showing its relevance to political debate. The individual-rights core of the opinion is buttressed by the structural worry that the challenged regime distributes the power of political influence in a way that entrenches certain established interests, here public-sector unions. The worry about distribution and entrenchment of political influence is linked, in turn, with a specific political outcome that is to be avoided: an empowered set of public employees with an agenda of egalitarian redistribution. Public-sector unions are cast here in the same role as the self-entrenching officials and bureaucrats who figured as the bête noire of the Buckley-era turn to an anti-redistributionist First Amendment doctrine.
A. The Court’s View of Workers’ Interests, and an Alternative
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 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 political advocacy that connects large employers with 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 in the workplace? If the economy is a concert of individuals, orchestrated by personal choice, then privacy rights are consonant with it.
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. To begin with an analogy to the workplace, politics is not an optional undertaking. It is a response to the fact that for certain purposes people are trapped together—in shared economic regimes, shared regimes of legitimate violence
—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 an alternative not to the absence of politics but to a different political dispensation. The right way to see unions, on this view, is as akin to political subcommunities. 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.
Organized labor presents a political-economic counterweight to wealth, an essential institution of rough civic equality.
Absent clear suppression of a core interest in political speech, 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 toward the end of his career in 1961, Justice Frankfurter took the same conceptual view of union activity that Justice Alito does today—that it is impossible to separate bread-and-butter economic representation from political advocacy—while drawing the opposite conclusion from that insight. For Alito, the inseparability of union representation from political advocacy 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. While 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 took for granted the fundamentally collective character of unions, with its consequence that they cannot do their work if they are unable to generate mandatory forms of collective action. He analogized the speech situation of the union dues payer to that of the federal taxpayer and offered as a premise 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.
Frankfurter’s view serves as a coda to this discussion, and also a bridge to an alternative, 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 wealth 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 a union imposes unity on the voices of its members, once the union has been authorized to represent them, nor on the worry that unions might make distributional demands on the state. That would be condemning them for doing their job in the constitutional order.
Progressive engagement with First Amendment doctrine should start by recognizing that any plausible version of civic equality and self-rule requires political engagement with the terms of self-rule. If appropriately constituted majorities cannot decide how majorities shall rule, then other forces will. This 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.