Thread by @Batboy_Supreme

An argument on the Doctrine of Monetized Speech and the Necessity for Its Reversal

Preface:

I hope many of you enjoy reading these long-form articles and treatises, which explore how I believe we can address many of the failings we see in our government and in the way this country is governed. One of these critical issues is that money equals free speech. This doctrine, introduced in the Buckley v. Valejo decision of 1976, in my opinion, started a chain of catastrophic and expanding events by which domestic and outside powerful forces have shaped our way of life.

Money equals free speech. Think about it for a second. The money of the poor and wealthy is equivalent to free speech, but what distinguishes them? The money of the poor is limited, while the money of the wealthy is not. Imagine a billionaire buying all of the billboards in a city or even a state to put their speech up on whatever topic or issue they want you to see, while all you can do is print out flyers and hang them up on lamp posts. See the difference?

The amplification of a billionaires speech drowns out even the voices of a large number of people. This isn't the speech our founders envisioned, nor should this country allow. Not just as citizens, but as voters. Since 1976, this country has allowed massive amounts of money to shape the way it thinks, talks, and comports itself, through Superpacs, dark money, foreign donations, and lobbying. This has become a monumental problem.

I'm a 1A absolutist. I believe the marketplace of ideas should be front and center to who we are as a people, that society and the market should make determinations of what is allowable speech, even if it's hateful, wrong, or inopportune. The marketplace of ideas will determine which of these things is appropraiate for our society and how it wants to shape its communication. Not all ideas are good ones. We know this, but powerful forces are spending untold billions of dollars worldwide to influence our thoughts while we as mere citizens get drowned out in the process.

But speech shouldn't be bought, sold, and commoditized, and that's what we are enduring right now as a country and as a society. I say it must stop. That is why I'm writing this doctrine to eliminate the notion that money equals free speech and to outline what it will take. Additionally, what the potential benefits of reverting to a system where this no longer occurs will be.

You've read my articles on the pros and cons of abolishing the Fed and what that looks like. You've read my articles on why the Fed should be abolished and what it should be replaced with to further the financial and economic aims of the country and return it to a more constitutional framework. This article now aligns with the evolution that further expands the freedoms and liberties of citizens, aligning with the principles outlined in these other articles. There will be more.

With that, I will leave it to you to decide if this is the right path to go in or not. If you believe your 1A rights would be better served by not being bought and paid for, and never being heard, please spread this far and wide. Many of you who follow and have listened to me on spaces have heard me say this. It's time this country abandoned equating money with speech. It has hurt us deeply, and it needs to stop.

I want to thank the founders for their fight in allowing me to express these ideas and beliefs under the First Amendment. I don't have to worry about being censored, arrested, or suppressed. These are my ideas, and I get to share them with you.

As always, I’m not infallible. I put a lot of effort into researching and developing these articles into meaningful and substantive informational packets so that you can read, process, and digest what is being said.

However, I make mistakes, and I want to learn from them, understanding where those mistakes are, so they aren’t made again. Through your reading of my vision, I become better. So, without further ado, please enjoy my work. If you like it, consider sharing it with a quote repost, follow, or a simple like. Be well, and thank you for your time to read this.

Introduction

This argument contends that the SCOTUS campaign finance jurisprudence, which equates large-scale financial expenditures with protected speech, is a grave constitutional error rooted in an antiquated and simplistic understanding of the First Amendment.

The doctrines from Buckley v. Valeo and Citizens United v. FEC have established a legal framework that prioritizes a narrow, libertarian conception of "negative liberty" or freedom from restraint, while actively undermining the "positive liberty" or the capacity to participate meaningfully of the vast majority of citizens.

supreme.justia.com/cases/federal/… - Buckley

supreme.justia.com/cases/federal/… - Citizens United

This has created a failed marketplace of ideas, fostered systemic corruption now amplified by modern technology, and placed the First Amendment in an irreconcilable conflict with the Constitution's guarantee of a republican form of government. For the SCOTUS to maintain its legitimacy and for the Republic to thrive, this doctrinally flawed and empirically damaging precedent must be overturned.

I. The Foundational Doctrinal Error: Negative Liberty vs. The Capacity for Self-Governance

The central flaw in the SCOTUS's reasoning in Buckley v. Valeo and Citizens United v. FEC is its myopic focus on negative liberty, the right of a speaker to be free from government interference. In this view, so long as the government does not censor a message, the First Amendment’s work is done.

This ignores the vital concept of positive liberty, which is the actual capacity of an individual to exercise their rights and participate in the project of self-governance. A right that cannot be meaningfully exercised is a hollow promise.

By ruling that the wealthy individual or corporation has an almost unassailable negative liberty to spend unlimited sums, the SCOTUS has actively destroyed the positive liberty/freedom of the average citizen to be heard. The practical effect of this doctrine is not a vibrant public square, but an auction house where the highest bidders set the terms of debate.

The First Amendment was not intended to create a right to purchase a political outcome. It was intended to protect the conscience and expression of human beings, ensuring their capacity to persuade their fellow citizens and hold their government accountable. When the financial speech of a few can systematically drown out the actual speech of the many, the liberty of the entire political community is diminished.

The SCOTUS duty was not merely to protect speakers from censorship, but to preserve the structural conditions necessary for a functioning deliberative democracy. In these actions, they failed and failed miserably, and it must be corrected. We need to return to a paradigm where no single person or a select few dominate the discussion on spending.

III. A Precedent Rendered Obsolete by Technology and Incompatible with Constitutional Structure

The legal fiction at the heart of Citizens United is that independent expenditures do not corrupt because they are not coordinated with a candidate, a notion that was tenuous in 2010. Today, in an era of big data, micro-targeting, and algorithmically-driven social media, it is a transparent absurdity.

Super PACs and campaigns can achieve a state of functional coordination through the use of shared digital advertising vendors, sophisticated data modeling, and public messaging, all without violating the letter of the law. The rise of disinformation-as-a-service and targeted digital suppression tactics, as documented by institutions like the Brennan Center for Justice, has made the potential for corrosive influence far greater than the Court contemplated.

brennancenter.org/our-work/resea…

This unworkable standard props up a system that is fundamentally at odds with the Constitution's structure. The Guarantee Clause in Article IV, Section 4, which ensures a "Republican Form of Government," is not a mere suggestion; it is a structural mandate. A republic requires that representatives be dependent on the people alone. A system where representatives are functionally dependent/reliant on a small class of funders for their political survival is an oligarchy in republican guise. The SCOTUS's jurisprudence became the primary legal impediment to securing the republican form of government that the Constitution demands.

constitution.congress.gov/browse/article…

What the court did was wrong, is wrong, and it's manifested itself in what we see today. The halls of representation are replete with lobbyists writing massive checks to secure preferential treatment, being heard first and loudest, and shutting out singular voices of citizens who wish to redress grievances, but will not get heard because the price of admission has become too high.

This is not what the founders intended or saw as an impediment for citizens to have equal yet powerful voices to matter in their daily affairs. Money equals speech means that in order to be heard, you must pay a toll to be seen.

III. The Empirical Record: Market Failure in the Marketplace of Ideas

The well-known metaphor of a "marketplace of ideas" is the primary justification for the SCOTUS's hands-off approach. However, any student of economics knows that for a market to function efficiently and produce the best outcomes, certain conditions must be met. When these conditions fail, the market fails. The political arena created by Citizens United is a textbook example of a failed market, characterized by:

1. Monopolistic Practices: Unlimited spending allows for the creation of epistemic monopolies. A single billionaire or corporation can purchase near-total dominance of the informational landscape on a key issue or in a specific election, crowding out all competing ideas not through superior logic, but through overwhelming volume.

2. Negative Externalities: The product being sold, often a deceptive attack ad or a policy that benefits a narrow interest, imposes massive costs or externalities on the public that the speaker does not bear. For example, a successful multi-million-dollar campaign to block fossil fuel industry legislation benefits the environment/climate change industry. Still, the costs of increased power generation through expensive new technologies subsidized by government and/or tax dollars are borne by society as a whole.

3. Information Asymmetry: Dark and foreign money creates profound information asymmetry. An anonymous funder can launch a sophisticated campaign to influence voters, who have no way of knowing the speaker's identity or agenda, making it impossible for them to properly weigh the credibility of the message. This creates an environment ripe for deception, as detailed by watchdog groups like OpenSecrets, which tracks the flow of undisclosed/non-disclosed spending.

opensecrets.org/dark-money/bas…

This is not a functioning marketplace that elevates truth; instead, it is a distorted and failed market that elevates wealth, obscures accountability, and imposes its costs on the public.

IV. Reclaiming the First Amendment’s Deliberative Purpose

Overturning these precedents would restore the First Amendment to its proper role as a guarantor of deliberative democracy and representative government. The purpose of free speech in a self-governing republic is not merely self-expression; it is the collective process of reason-giving and debate through which citizens form public opinion and guide the state without having to worry if that speech is bought and paid for or if there is a price to pay to even say it and be heard by their respective representatives.

This requires a legal framework that balances the negative liberty of the speaker with the positive liberty of the community to engage in a meaningful dialogue. Content-neutral regulations on the scale, source, and transparency of campaign spending do not silence ideas. They are structural rules designed to facilitate a better conversation.

They ensure that the quality of an idea, not the wealth of its proponent, is the ultimate measure of its value. By re-adopting this view, the SCOTUS would align the First Amendment with its republican purpose, fostering a public square where more voices can be heard and a more genuine deliberation can take place.

V. The Restorative Benefits of Doctrinal Correction

Correcting this deep doctrinal error would yield profound and immediate benefits to the health and stability of the Republic. So, how would we, as citizens and the SCOTUS, go about reestablishing the idea that money should never equal free speech again?

1. Restoration of Public Trust: A system in which moneyed interests do not perpetually drown out the voices of citizens would directly combat the corrosive cynicism that has led to a historic decline in public trust, a trend meticulously documented by the Pew Research Center. A government perceived as fair is a government that can earn the trust of its people.

In effect and bluntly, stop making money equal free speech. Upend and suspend these laws and rulings.

pewresearch.org/politics/2024/…

2. A More Representative and Functional Legislature: The "money primary" that currently forces candidates into a race for the support of wealthy donors would be replaced by a "voter primary," where success depends on broad public support. This would create a more diverse class of public servants and free them from the endless cycle of fundraising, allowing them to focus on the act of governance.

3. Policy Aligned with Public Need: A legislature less beholden to the interests of its funders would be empowered to tackle long-term national challenges from infrastructure and healthcare costs to fiscal responsibility that is based on public need and empirical evidence, rather than the transactional demands of major donors.

VI. Scholarly Critique and Constitutional Rebuttal

Legal scholars have forcefully challenged the “money equals speech” doctrine. Deborah Hellman argued that while money facilitates speech, it is not speech itself, just as one cannot buy votes or sell constitutional rights.

minnesotalawreview.org/wp-content/upl…

Public Citizen’s analysis highlights the flawed assumptions underlying Buckley and Citizens United, noting that the Court failed to recognize the corrupting power of unlimited money in politics.

citizen.org/wp-content/upl…

David Kairys critiques the selective application of the doctrine, noting that the Court has protected wealthy donors while disregarding the expressive rights of ordinary citizens.

slate.com/news-and-polit…

VII. Solutions for restoration of speech not beholden to monetary influences

So, what does that look like from a practical point of view to actually fix this issue of achieving the goal of separating money from the concept of protected speech? This is a monumental challenge that requires action on several fronts. There is no single switch to flip, but rather several distinct pathways that reformers must pursue.

Here are the primary ways it can be done, ordered from the most fundamental and difficult to the most immediate and incremental.

1. Amend the U.S. Constitution - The Permanent Fix:

This is the most direct and consequential solution because it would explicitly override the SCOTUS's interpretation of the First Amendment.

How it works: Proponents advocate for a 28th Amendment to the Constitution. The language would explicitly state that corporations are not people with constitutional rights and that Congress and the states have the authority to regulate all money raised and spent for political purposes.

congress.gov/committee-repo…

The Process: This would be an incredibly high hurdle. An amendment requires a two-thirds vote in both the House of Representatives and the Senate, and then it must be ratified by three-fourths or 38 of the states.

archives.gov/federal-regist…

Likelihood: Very low in the short term due to the current extremes of political polarization in the US. However, it remains the ultimate goal for many reform movements, like those advocated by organizations such as American Promise.

americanpromise.net

2. Overturn Supreme Court Precedent - The Judicial Fix:

This approach involves the SCOTUS reversing its own previous decisions, primarily Citizens United and parts of Buckley.

How it works: A future case concerning campaign finance would have to reach the Supreme Court, and a majority of the justices would need to be convinced that the previous rulings were grievously wrong and damaging to the country. They would then issue a new opinion that sets a new precedent.

The Process: This is a long-term strategy that depends entirely on the composition of the Court. It changes as presidents appoint new justices who are then confirmed by the Senate, a process that can take decades to shift the Court's ideology.

Likelihood: Extremely low with the Court's current composition. It would require a significant ideological shift on the bench in the future. Compelling arguments would have to be made to compel the court to seriously consider a likely outcome where it would overturn its own prior decisions.

3. Pass New Federal and State Laws - The Legislative Fix:

This is the most active and immediately achievable area of reform. Instead of directly challenging the money equals speech doctrine, these laws aim to reduce the influence of big money and empower ordinary citizens within the current legal framework.

A. Radical Transparency and Disclosure:

1. What it is: The idea here is that if big money can't be limited, it should at least be completely transparent. This involves passing laws like the DISCLOSE Act, which has been proposed in Congress.

congress.gov/118/bills/hr11…

2. How it works: These laws would require all organizations spending money on elections, including anonymous "dark money" groups, to immediately disclose their major donors. The theory is that voters, armed with the knowledge of who is funding a particular message, can make more informed decisions. More information on this can be found at the Brennan Center for Justice.

brennancenter.org/our-work/analy…

B. Public Financing of Elections:

1. What it is: This is a strategy to amplify the power of small-dollar donors to compete with big money.

2. How it works: The government creates a voluntary system for candidates. If they agree to accept only small donations, those donations are then matched with public funds. For example, a $50 donation from a citizen could be matched with a 6-to-1 ratio, turning it into a $350 contribution for the campaign. This allows candidates to run a viable campaign without relying on billionaires or corporate PACs.

3. Examples in Action: This is already working at the state and local level. Connecticut's "Clean Elections" program and Seattle's "Democracy Vouchers" are two of the most successful models. These local successes serve as a proof of concept for a potential national system.

seec.ct.gov/Portal/data/CE…

seattle.gov/democracyvouch…

C. Strengthening Enforcement:

1. What it is: A simpler but crucial reform would be to overhaul the perpetually gridlocked Federal Election Commission (FEC).

2. How it works: The FEC is responsible for enforcing campaign finance law, but is often paralyzed by its partisan structure. Restructuring the agency to allow it to effectively investigate and punish violators would add teeth to the laws that are already on the books.

brennancenter.org/our-work/polic…

Getting money to stop equaling speech is a multi-front battle that combines the long-term, ambitious goals of amending the Constitution with the more immediate, practical steps of passing new laws at the federal, state, and local levels.

Conclusions:

The SCOTUS's monetized speech doctrine is a failed experiment. It is based on a flawed understanding of liberty, it has been rendered obsolete by technology, and it has created a failed marketplace of ideas that actively damages the republican structure of our government. It is the duty of the SCOTUS to correct this error and restore a constitutional framework that serves the liberty of all citizens, not just the financial power of a few.

Also, let's remember that this debate transcends the left/right paradigm. I'm not the only one who feels, thinks, or believes this way. There are untold millions of people who have seen the degradation of our political discourse and the 10's if not 100's of billions of dollars spent to sway how you speak, think, and see whatever information the funders of free speech want you to know. Stop them.

Let's all work together to restore the First Amendment to its rightful spot. Please don't sell it out to the highest bidders. Don't let it get monopolized by the deepest pockets. Don't let it be used against us by dark and foreign adversaries who don't have our best interests at heart.

Thank you, dear reader, for taking the time out of your day to read this. I want to offer solutions, not just yell from the sideline at the problem, thinking it will reform itself if my voice is loud enough.