John Smyth
2024-12-23 16:54:18 UTC
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PermalinkMoney hasnt paved the way to Clarence Thomas positions. On the
contrary, Thomas positions have paved the way for money. | Tasos
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Opinion by Corey Robin
04/18/2023 04:30 AM EDT
Corey Robin is a distinguished professor of political science at Brooklyn
College and the City University of New York Graduate Center and the
author of The Enigma of Clarence Thomas.
As soon as the story broke that Supreme Court Justice Clarence Thomas
had, for decades, been taking expensive vacations on the dime of
billionaire Harlan Crow, liberal critics and conservative defenders
huddled around the same question: Had Thomas sold his votes on the court
to the highest bidder?
Sen. Chris Murphy, a Connecticut Democrat, led off with a tweet that Crow
funds a conservative outfit that has filed briefs in eight different
Supreme Court cases. Each time, Thomas sided with Crows group. This
wasnt quite the gotcha liberals were looking for, though. Four of those
decisions and judgments were unanimous, and in the other four, Thomas
joined with some, sometimes all, the courts conservative justices.
Conservative legal scholar Ilya Shapiro took the opposite tack, daring
anyone to question the sincerity of any justice. A justice wouldnt
change his vote simply on the basis of an undisclosed gift or the company
he keeps. This, too, wasnt quite the conversation ender Shapiro and the
right imagined it to be. As New York Times columnist Jamelle Bouie
pointed out, Corruption is much more than a cartoonish quid pro quo.
When money talks, the words need not take the form of Do this, and Ill
give you that. Money buys a lifetime of conversation between men of
power. In that fraternity of words and wealth, stories are swapped, trust
is gained, respect is earned, ideas are shared and preferences become
policy.
As a description of the problem of Clarence Thomas, however, corruption
too has its limits. Morally, corruption rotates on the same axis as
sincerity forever testing the purity or impurity, the tainted
genealogy, of someones beliefs. But money hasnt paved the way to
Thomas positions. On the contrary, Thomas positions have paved the way
for money. A close look at his jurisprudence makes clear that Thomas is
openly, proudly committed to helping people like Crow use their wealth to
exercise power. Thats not just the problem of Clarence Thomas. Its the
problem of the court and contemporary America.
In 1987, four years before he joined the Supreme Court, Thomas gave a
speech at the Pacific Research Institute, a San Francisco think tank that
traces its roots to the economic philosophy of Milton Friedman and is
dedicated to advancing free-market policy solutions. The target of
Thomas speech was the midcentury liberal economists like John Kenneth
Galbraith who held money and markets in bad odor and whose attacks on
rich businessmen defined the common sense of the New Deal. Thomas view
of liberalism may seem unrecognizable today, when many Democrats are as
enamored of bankers and entrepreneurs as those bankers and entrepreneurs
are of themselves. But the midcentury liberal was a different animal.
Thomas complained that liberals saw money and economic activity as venal
and dirty, as a grubby means to a grubbier end. Far nobler, in the
liberal view, was the idealistic professions of journalism, the academy
and the law, where people make their living by producing words.
In Thomas speech, we can hear the primal cadence of the original culture
war between the right and the left. Long before they reached the
battlefields of abortion or trans rights, liberals and conservatives were
fighting over the meaning and status of wealth. No mere war of economic
positions, this was a civilizational struggle over who in our society
deserves the highest form of recognition and respect: the man of money or
the man of words? Hewlett-Packard or Hollywood, IBM or the Ivy League,
Wall Street or NPR?
Why Clarence Thomas' ethics dilemma will likely end in stalemate
It doesnt take much to see how this apparent conflict is badly posed:
Where, after all, do knowledge workers and bankers get their degrees if
not at elite schools? From whom does Harvard, Hollywood or NPR get its
funding if not wealthy elites? Even so, conservatives choose their false
dichotomies wisely. Not only are these divides culturally resonant; they
are also constitutionally salient.
For liberals of the 1960s and 1970s, when Thomas was coming of age, the
most sacred provision of the Constitution was freedom of speech. Like
sexual intimacy or gender identity today, words were thought to be an
expression of who we are, a disclosure of our deepest sense of self.
Thats why liberals sought to surround them with a constitutional fence
of rights and protect them from the state.
Along with a small group of far-sighted conservatives, Thomas realized
that if the activity of the businessman and the banker could be
redescribed as words, as speech worthy of the First Amendments
protections, it too could achieve the status of a constitutional right.
That activity included everything from advertising to campaign
contributions to the language of contracts. Like regulation of speech,
any policies and laws regulating those activities could be subject to the
highest levels of judicial scrutiny. Under this approach, the
constitutional and civilizational order of the New Deal could be
overturned.
On the Supreme Court, Thomas has pursued this project with great vigor
and great success. Championing the power of business in the economic
sphere, he has helped strike down economic policies that impinge upon
what is called commercial speech. Championing the power of business in
the political sphere, he has taken on campaign finance laws and
regulations. He has chipped away at the courts claim, in the landmark
case Buckley v. Valeo, that limitations on campaign contributions are a
legitimate means of eliminating the reality or appearance of corruption
in the electoral process.
It is here, in the realm of campaigns and corruption, that Thomas has
left his most permanent mark on the First Amendment and a lengthy paper
trail leading back to Harlan Crow.
Money is a kind of poetry, wrote Wallace Stevens. Thomas agrees. More
than an aid to speech or speech in the metaphorical sense, money is
speech. Not only do our donations to campaigns and candidates generate
essential political speech, Thomas writes in a 2000 dissent, but we also
speak through contributions to those campaigns and candidates. Hes not
wrong. When my wife and I gave money to the campaigns of Bernie Sanders
and Alexandria Ocasio-Cortez, we were doing more than aiding their
candidacies. We were voicing our political values and advocating our
policy preferences, just as we did when we showed up at their rallies and
canvassed for them, door to door.
In todays world, citizens dont simply speak into the air as they did in
the Greek polis. They speak through mediums designed to amplify their
message. Those mediums cost money. To speak on social media, I have to
buy a computer and pay for the internet. If you speak at a rally, youll
need a bullhorn or a sound system. If both of us are going to leaflet a
farmers market, well need to pay for photocopies, pens, clipboards and
the like. Whenever we speak politically, were speaking through
something, hoping that something will help our words reach more people
than they would if we were simply standing in a corner and talking to
passersby.
The same is true of campaigns and candidates. As Thomas writes in a 1996
case, a campaign or candidate is a go between that facilitates the
dissemination of our beliefs. These are not merely abstract or general
beliefs; they are specific beliefs that we expect to affect government
policy. When we make a political donation, we are exercising our right
to speak through the candidate with the expectation that our views on
policy and politics are articulated, and, should the candidate win
office, she will attempt to enact those views into law. The candidate is
the donors mouthpiece.
Thomas doesnt pull back from the plutocratic implications of his
argument. He approvingly cites a passage from a 1972 treatise on money
and politics: Some views are heard only if interested individuals are
willing to support financially the candidate or committee voicing the
position. To be widely heard, mass communications may be necessary, and
they are costly. Costly communications require big donations. Big
donations mean big donors. The only effect that immense
aggregations of wealth will have on an election, Thomas writes in yet
another case from 2003, is that they might be used to fund
communications to convince voters and that corporations will be able
to convince voters of the correctness of their ideas.
Influence and access are what all citizens seek. Influence peddling is
not a perversion of politics; it is politics. Thomas is neither soft nor
shy about that fact. He believes that liberals should stop casting
aspersions on politicians too compliant with the wishes of large
contributors and accept the materiality of modern speech. Speech needs
a substrate, substrates cost money, money entails donors, donors are
wealthy. Like the rest of us, they seek to have their beliefs and
positions instantiated in the law.
Thomas approach to money in politics obviously focuses on elected
officials, not appointed judges, but the throughline is clear.
Thomas positions have been felt across the Supreme Courts First
Amendment rulings. Where businesses used to win First Amendment cases at
a much lower rate than individuals, they now win those cases at roughly
the same rate as individuals. Where the typical free speech case once
involved a student or a protestor, it is now just as likely to involve a
corporation or a firm. That is where Clarence Thomas has led us and
left us.
With the revelations of Thomas connections to Harlan Crow, we can take
one of two paths. We can focus on the salacious details of Crows
largesse and Thomas long history of gifts from other rich people. (My
personal favorite is the $1,200 in tires he got from a businessman in
Omaha.) We can talk about getting Thomas investigated or impeached. We
can talk about judicial ethics and how they dont get enforced on the
Supreme Court.
AOC renews call to impeach Clarence Thomas amid scandal
Or we can use the revelations as a teachable moment. For years,
progressives have fought a losing battle to strengthen campaign finance
laws, claiming that money is not speech. Operating under the delusion
that the Roberts Court and Citizens United are solely to blame when
liberal titans William Brennan and Thurgood Marshall co-authored the
Buckley decision, which held that campaign expenditures are in fact
speech progressives have sought to reverse the oligarchic turn of
American society by getting money out of politics.
Perhaps, taking a page from Clarence Thomas, we can pursue a different
path. If money is speech that secures outsized influence and access for
the wealthiest citizens, maybe the problem is not the presence of money
in politics but the distribution of money in the economy.
As radical as that claim may sound today, it has been the heart and soul
of democratic argument since the founding of the republic. Noah Webster,
of American dictionary fame, claimed in 1790 that the basis of a
democratic and a republican form of government is a fundamental law
favoring an equal or rather a general distribution of property. Without
that equal distribution of wealth and power, liberty expires.
If money is speech, the implication for democracy is clear. There can be
no democracy in the political sphere unless there is equality in the
economic sphere. That is the real lesson of Clarence Thomas.