Balkinization: History, Neoconservatism, and Citizens United

History, Neoconservatism, and Citizens United

Step Feldman

Four of the current Supreme Court justices can reasonably be characterized as displaying neoconservative tendencies (Thomas, Scalia, Roberts, and Alito). These justices joined with Kennedy to form the five-justice majority in Citizens United, which held that governmental limits on corporate (and union) spending for political campaign advertisements violate the first amendment. Did the Citizens United Court, therefore, apply neoconservative principles? Not if one understands the history of neoconservatism.

A central component of neoconservatism as it developed in the 1950s, 1960s, and 1970s was its critique of the hegemonic pluralist democratic regime, which had taken hold of the nation in the 1930s. Pluralist democracy accepts ethical relativism: individuals and interest groups press their own interests and values in the democratic arena. From this array of competing interests and values, the government chooses to pursue those goals that emerge through certain established processes. No preexisting or higher principles limit the interests, values, and goals that can be urged. Process determines legitimacy. The early neoconservatives repudiated pluralist democracy and advocated for a return to republican democracy, which had predominated before the 1930s. Republican democratic theory holds that virtuous citizens and officials pursue the common good rather than their private interests. Thus, neocons rejected the ethical relativism that underlay the pluralist democratic regime and instead championed traditional American values or virtues that were to direct us toward the common good.

Neoconservatism and Republican Democracy

In The Closing of the American Mind, Allan Bloom drew inspiration from his teacher, Leo Strauss, the godfather of neoconservatism. Echoing Straussian themes, Bloom wrote: “The United States is one of the highest and most extreme achievements of the rational quest for the good life according to nature. What makes its political structure possible is the use of the rational principles of natural right to found a people, thus uniting the good with one’s own. Or, to put it otherwise, the regime established here promised untrammeled freedom to reason—not to everything indiscriminately, but [nonetheless] to reason.” When Bloom referred to “the regime established here,” he clearly was not denoting the post-World War II pluralist democratic regime built on relativism, historicism, and social-science empiricism. He was looking back to the republican democratic regime, which he equated with Strauss’s concept of the “best regime.”

In this vein, Irving Kristol, a leading neocon, repeatedly invoked republican democratic principles. He encouraged Americans to recollect the nation’s original “revolutionary message.” The “founding fathers,” Kristol explained, “understood that republican self-government could not exist if humanity did not possess—at some moments, and to a fair degree—the traditional ‘republican virtues’ of self-control, self-reliance, and a disinterested concern for the public good.” But how can Americans cultivate civic republican virtue? We do so “through the shaping influence of religion, education, and [our] own daily experience.” That is, we must teach or inculcate virtue and then allow people to practice “self-government.”

Neoconservatism and Free Speech

Constitutional scholars have explored the ramifications of neoconservatism for free speech. Walter Berns, a political scientist who studied under Strauss and was Bloom’s faculty colleague at Cornell, published his first book, Freedom, Virtue, and the First Amendment, in 1957. Berns emphasized that, at the time, the predominant free-expression doctrine was the clear and present danger test. The justices, according to Berns, interpreted the clear and present danger test in the pluralist democratic regime to preclude courts, for the most part, from considering the content of speech and writing for purposes of first-amendment analysis. Except for cases involving national security, “speech of almost any character, true or false, good or bad, enjoys a favored status before the Court.” This approach supposedly followed from the modernist liberal (and social science) commitment to the fact-value dichotomy, which asserted that “all judgments of better and worse are arbitrary.”

Berns denounced this judicial attempt to eschew value judgments regarding the content of expression. The “problem of free speech,” Berns explained, was really “the problem of virtue.” In resolving free-expression cases, the Court should attempt to “promote the virtue of citizens” and to pursue the “general welfare” (that is, the common good). Hence, Berns recommended the following: “Congress shall make no law abridging the freedom of good speech. The basic point is that the purpose of law is and must be to promote virtue, not to guarantee rights of any description.” This approach was the correlative equivalent, from a doctrinal standpoint, of the bad tendency test: the Court should allow the government to punish harmful or bad expression but should proscribe the government from punishing virtuous or good expression. In other words, Berns advocated for a return to a republican democratic approach to free expression; courts had applied the bad tendency test throughout the nineteenth and early-twentieth centuries. The Court must distinguish between “good and evil,” then must allow the government to shape, to educate, citizens of “good character” while censoring the licentious. Otherwise, the United States will be unable to protect “against dangers to civility” and will no longer be a “decent society.” The republican democratic focus on virtue and the common good was, to Berns, far more important than the pluralist democratic focus on the proper process: “The right [moral] education is ultimately much more decisive for good government, for free government, than any of the mechanical arrangements, such as the separation of powers, in which we Americans have traditionally placed our trust.” Ultimately, Berns insisted that all ideas are not equivalent and that all values are not relative. Despite the pretensions of pluralist democratic theorists, a civilized society cannot function if human relationships are based on nothing more than “calculating self-interest.” As citizens, we must proclaim our standards—we must distinguish good from evil—and we must then cultivate a good and virtuous society. And the justices need to do the same.

Neoconservatism and Campaign Financing

The Court in Citizens United reasoned that the statutory “prohibition on corporate independent expenditures is … a ban on speech.” Any “‘restriction on the amount of money a person or group can spend on political communication during a campaign’” implicates first-amendment protections. Thus, after linking the corporate expenditure of money with political expression, the Court emphasized the self-governance rationale, which accords near-absolute protection for political expression. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”

The early neocons did not explicitly discuss campaign finance restrictions. But Daniel Bell, a co-founder with Kristol in 1965 of the foremost neoconservative journal, The Public Interest, cautioned against the dangers of the modernist mixing of money and politics in pluralist democracy. In his 1976 book, The Cultural Contradictions of Capitalism, Bell divided society into three realms: the techno-economic (or social), the cultural, and the political. The three realms, he suggested, will contribute to a stable society if they either remain separate or operate in ways that reinforce each other. For instance, early in the development of capitalism, a culture of hard work, self-discipline, and self-denial—characterized by Max Weber as the Protestant ethic—bolstered the capitalist economy by encouraging individuals to devote themselves to employment in bureaucratically organized workplaces. By the second half of the twentieth century, however, the three realms overlapped and intersected in ways that were not mutually reinforcing; rather, they contradicted each other, causing societal instability. The main contradiction of modern life, according to Bell, was between the capitalist economy and the modernist culture, which imbued individuals with a hedonistic desire for self-gratification. “In the world of capitalist enterprise, the nominal ethos in the spheres of production and organization is still one of work, delayed gratification, career orientation, devotion to the enterprise. Yet, on the marketing side, the sale of goods, packaged in the glossy images of glamour and sex, promotes a hedonistic way of life whose promise is the voluptuous gratification of the lineaments of desire. The consequence of this contradiction … is that a corporation finds its people being straight by day and swingers by night.”

Bell also accentuated tensions between the economic and political realms. The operative principle of the capitalist economy was efficiency, maximizing one’s benefits while minimizing costs, while the operative principle of the pluralist democratic polity in post-World War II America was equality, requiring that all individuals be “able to participate fully” as citizens. If the two realms had remained distinct, each could successfully fulfill its respective principle. But the two realms bled into each other, Bell argued, thus producing discordance. For example, aiming for efficiency, capitalism relied on hierarchically structured bureaucratic organizations that collided with the political desire for participatory equality. Moreover, as the two realms intermingled, an increasing number of issues, previously settled in the capitalist marketplace, shifted into the political realm. Consequently, instead of being decided pursuant to “technocratic rationality” leading to economic efficiency, they were (and are) resolved through a political “bargaining” process that facilitates participation. Economic decisions, therefore, were (and are) made for the wrong reasons. This problem was greatly exacerbated, according to Bell, because the modernist culture of self-gratification induced individuals and societal groups to express an ever-increasing number of excessive demands within the political realm. Demands for equal participation gave way to demands for “rising entitlements,” including “a basic minimum family income,” a minimal “standard of living,” and so on. These never-ending demands then generated group conflict and societal instability.

Originalism, Republican Democracy, and Free Speech

Neoconservative (and other conservative) constitutional scholars often advocate for an originalist approach to constitutional interpretation. Walter Berns, for one, lamented how the post-1937 Court eschewed republican democratic principles. “[T]he constitutional law of the [post-1937] First Amendment has not been built on the precedents and principles of the past,” Berns wrote. “One looks almost in vain for references in the Court’s opinions to what the great [nineteenth century] commentators—Story, Kent, and Cooley, for example—have written on freedom of speech and religion, or to what the Founders intended with the First Amendment.” Strict adherence to originalism and neoconservative principles would support a doctrinal approach akin to the bad tendency test, which predominated during the republican democratic regime. The return of the bad tendency test would allow the government to punish any speech or writing that had likely harmful consequences or that might be deemed antithetical to a virtuous citizenry and the common good.

Significantly, the self-governance rationale, which the Citizens United Court invoked, rose to prominence only after the post-1937 judicial acceptance of pluralist democracy. The crux of pluralist democracy is free and open citizen participation; if citizens cannot express their interests and values, then such participation seems impossible. Free expression thus appears to be a precondition for the pluralist democratic process itself—hence, the near-absolute protection for political expression. For this reason, governmental limitations on corporate expenditures for political campaigns are constitutionally problematic (though not necessarily unconstitutional). But if the Court were to follow an originalist and neoconservative approach, a governmental limitation on corporate campaign expenditures could be readily justified as promoting the common good. Under republican democracy, the right to free expression—even for political speech and writing—always remained subordinate to the common good. Thus, speech and writing could potentially be restricted in many situations. Specifically, the government could act to preserve the integrity of the democratic process by limiting corporate campaign expenditures without violating the first amendment, regardless of whether the corporate expenditures were categorized as speech itself or as merely facilitating speech.

Stephen M. Feldman
Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming

Posted 1:33 AM by Step Feldman [link]