Schmitt and Hayek v. Citizens United: Unintended Consequences of Citizens United for Democracy and Capitalism
Schmitt and Hayek v. Citizens United: Unintended Consequences of Citizens United for Democracy and Capitalism Edward Wong
Since the state exists as an extension of the people, the people should have a voice in the politics of the state to express their will. This doctrine lies at the heart of the First Amendment’s protection of free speech. In the 2010 landmark Supreme Court case Citizens United v. Federal Election Commission, the Court overturned a previous ban on independent election expenditures by corporations, thus extending the right of political speech to corporate entities.1 In theory, the decision was made as a protection of the free market, allowing economic actors to express their will in politics. More than simply loosening campaign financing restrictions, however, the Court’s decision has allowed corporate interests to permeate US politics to an unprecedented degree, causing unintended consequences for both democracy and capitalism. The relationship between the state and social economic interests has been a topic of intense debate from both the left and the right. For many leftist theorists, the state and the economy are inseparable, both in their processes and outcomes. As thinkers like Karl Marx and Karl Polyani argue, unchecked capitalism bears destructive consequences, and thus must be restrained by the state. Underpinning the left’s argument is the existence of a conflict of interests between capitalism and democracy. On the other hand, members of the right, including both economists and political theorists, tend to argue that a separation between the state and economy is needed for both to function properly. The right maintains that without this separation, both the state and economy will become battlegrounds for special interests. What’s important is that while they differ in their conceptions of the relationships between state and economy, both the left and right acknowledge the destructive potential of special interests. Moreover, neither the left nor the right rejects the possibility that democracy can coexist with capitalism. Rather, for both the left and the right, the issue is one of managing 1 Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).
that relationship and balancing the social, political, and economic interests involved. Therefore, any successful attempt at balancing democracy with capitalism must seriously consider the underlying principles of both parts of the equation. Using Citizens United as an illustrative case, this paper will explore the historical debate and connect theory to a post-Citizens America. First, I will outline the background of the case and provide an analysis of the theoretical foundations of the Court’s decision, taking into consideration the arguments of both the majority and dissenting opinions. Specifically, the concepts of interests and citizenship will be closely examined as they are central to both the foundations of democracy and capitalism. Then, I will connect Citizens to the ideas of Carl Schmitt and Friedrich A. Hayek, two great political theorists who explored the relationship between capitalism and democracy, and critically examine the court’s position. Both Schmitt and Hayek’s arguments illuminate flaws in the reasoning of Citizens, and imply that the court’s decision takes neither democracy nor capitalism seriously. The framework provided by Schmitt’s works provide a solid critique of the foundations of Citizens as his writings elucidate the dangers of allowing social or economic interests to capture the democratic state through massive corporate electoral spending. Developed towards the end of the Weimar Republic, much of Schmitt’s works were written in the context of a political crisis where the supposedly democratic state is captured and torn apart by special interests from all aspects of society. While his ideas have evolved through his career, his fundamental position on the relationship between the state and special interests bears significant democratic implications.2 Similar to Schmitt, Hayek also developed his foundational ideas in the 2 In many ways, Schmitt’s changing theoretical positions were reflections of the German political landscape at the time. Regardless of whether it was due to pragmatic and opportunistic concerns, or simply shifts in Schmitt’s own worldview, one can say that there are many Carl Schmitts when it comes to the theory of the state. For the purposes of this essay, I will primarily focus on Schmitt’s ideas from the late 1920’s to the early 1930’s, near the end of
context of a political and economic crisis. Writing through the Second World War, Hayek was alarmed by the interest-motivated attacks on the free economy from both the left and the right, led by the Communists and Fascists, respectively. As he argues, state intervention in the economy to promote specific interests is disastrous as it dismantles the foundation of competition that capitalism is built on. Hayek’s neo-liberal ideology warns of the economic consequences brought by unchecked interests, demonstrating that economic interests, like those of corporations, can be harmful to the economy if not properly addressed. For both Schmitt and Hayek, the balancing of the state vis-à-vis special interests must be carefully considered as it may bear disastrous consequences. Similar to the crises faced by Hayek and Schmitt, Citizens was a crucial moment for defining the way economic interests would interact with American politics and economy. While Citizens marked a clear and defining moment for campaign finance regulation in America, the troubling issue of regulating economic and special interests in politics has concerned congress and the courts for over a century. 3 Modern campaign finance regulation began in 1974 with the Federal Election Campaign Act (FECA), which laid the foundation for future legislation that remains to this day. Created as a response to the perceived corruption of the Watergate scandal, the act drastically changed the way politicians could receive funding, placing strong restrictions on political expenditure, contribution, and other forms of financing.4 4 Donald J. Simon, “Beyond Post-Watergate Reform: Putting an End to the Soft Money System,” Journal of Legislation 24, no. 2 (1998): 167 – 171. The fact that modern political funding regulation was created as a response to Watergate is worth noting. Such a move clearly shows that the government at the time recognized the potential for corruption stemming from unchecked political spending, and that barriers would need to be erected to keep it in check. This understanding was apparently absent from the Court in Citizens. 3 Daniel P. Tokaji, “Campaign Finance Regulation in North America: An Institutional Perspective,” Election Law Journal 17, no. 3 (November 2018): 190 - 194. Weimar. During his period, Schmitt was chiefly concerned with the position of the state facing paralyzing divisions in socio-economic interests, an issue relevant to Citizens.
Moreover, candidates were required to disclose where the funding came from. As a result, the traditional means of financing became inadequate for candidates to raise sufficient funds. The constitutionality of the FECA would be challenged in the landmark Supreme Court case Buckley v. Valeo. While the court would ultimately rule to uphold the constitutionality of campaign restrictions and the FECA, it was not a perfect resolution. Fundamentally, the Buckley decision contained significant tensions in the relationship between special interests and democracy as it was delivered by a bench of Justices who fundamentally disagreed on “how to balance First Amendment Rights of free speech … with state interests.”5 Importantly, while the Court disagreed on how the balancing should be carried out, the Justices did not dispute the fact that balancing was needed. In doing so, the Justices correctly recognized that the value of a right, matter how important, is never absolute. As prominent German constitutional jurist Dieter Grimm carefully explained, “balancing has become the most important tool when competing values or interests have to be reconciled.”6 The protection granted to a right should always be proportional to the benefits brought by its existence or the damage caused by its absence.7 Otherwise, the existence of a strictly absolute right would overturn any constitutional structure: any other constitutional objective would be fruitless in the face of an absolute right, and clashes between multiple rights would be irreconcilable. Moreover, rights can retain their substantive force without being absolute as most legal measures tend to affect only aspects of a right. As seen in the topic at hand, it is not the 7 Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence,” The University of Toronto Law Review 57, no. 2 (2007): 395 – 397. The need for balancing was more or less ignored by the Roberts Court in Citizens. 6 Dieter Grimm, "How to Balance Freedom and Security," Spiegel International, April 26, 2007, accessed December 8, 2022, https://www.spiegel.de/international/world/civil-liberties-in-an-age-of-terror-how-to-balance-freedom-and-security-a -479668.html. 5 Buckley v. Valeo, 424 U.S. 1 (1976) and Richard L Hansen. “Citizens United and the Illusion of Coherence,” Michigan Law Review 109, vol 4. (2011): 585-587.
fundamental right of free speech that is being debated, but rather the narrower aspect of granting political speech to corporate entities. The Court came to a compromise with this understanding of the need for balancing in Buckley: campaign contributions could be limited to prevent corruption, but independent spending and expenditure could not due to a lack of evidence showing corruption.8 By corruption, the court meant an explicit, de-facto bribe. The court’s reasoning focused on the fact that since the expenditure would be made without the involvement of the candidates, there would be no cooperation or prearrangement. Thus, there could not exist corruption under their narrow view of a quid pro quo.9 Moreover, the court considered the proportionality of restricting the corporate right to speech, finding that limits on contributions only “marginally” restricted the First Amendment, whereas limitations on the broader category of spending required more scrutiny as they restricted speech more directly. Once again, the Court in Buckley showed the importance of considering the proportionality of the rights and outcomes involved, something that the later Citizens court would neglect. Since the Buckley decision, which effectively opened the way for unrestricted independent expenditures, the wealthy elite, corporations, and unions discovered that they could donate large sums directly to political entities and parties instead.10 These so-called soft money expenditures differed from previous forms of campaign financing, as they would not directly go 10 Tilman Klumpp et. al. “The Business of American Democracy: Citizens United, Independent Spending, and Elections,” The Journal of Law and Economics 59, no. 1 (2016): 8-9; see Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). As long as the soft money advertisements contained and expressed forms of direct advocacy, such as urging people to vote for certain candidates or certain issues, they were fair game under the Buckley precedent. 9 The inequality of contribution and expenditure will play a central role in later developments of American campaign finance law. The court, in Buckley, reasoned that limits on direct contributions should be held to a less strict test as they only marginally limited an individual’s freedom of speech, as they could speak through other means. But limits on spending and expenditure was a much greater limit on the ability for people to express themselves as they would be too limited in their means. 8 Hansen, “Illusion of Coherence,” 586-587.
to nor be used by the candidates themselves. Rather, political parties would use the money on their behalf by carrying out activities such as paying for ads or running attack programs. As social and economic actors such as corporations, unions, and affluent individuals increasingly recognized the benefits of political participation, they began pouring large sums of soft money into American politics. As corporations increased their presence in the political sphere, the question of corporate spending became a key issue. In 1990, the court ruled in Austin v. Michigan Chamber of Commerce to uphold limits on spending by for-profit corporations in elections. Essentially, the court found that corporations do not possess the same rights as people, a view which it would maintain for the next 20 years until Citizens. The court’s argument is particularly important.11 Rather than arguing that corporate spending would result in corruption, the court reasoned that limits must be in place to prevent the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”12 Therefore, even in the absence of corruption, unrestricted corporate spending can still damage democracy. These negative consequences must be weighed by the state against the protection given to rights, as discussed earlier. Moreover, this argument strikes directly at the relationship between the state and the governed. Should the state be subject solely to the voice of the people? Can a state be truly representative of all its people if corporations can “speak” louder than everyone else? These questions are foundational to the relationship between democracy and capitalism, questions that Citizens would leave unanswered. 12 This reasoning would form the basis of what the Citizens court would refer to as the “anti-distortion” argument 11 Hansen, “Illusion of Coherence,” 588.
Following Buckley, at the start of the 2000s, Congress passed the Bipartisan Campaign Reform Act (BCRA). This act banned unlimited soft money donations and made it so when corporations did spend money, they would not be able to use direct treasury funds but instead had to rely on their PACs.13 The key difference between the two lies in the disclosure of the funding source. PACs, as regulated political entities, must disclose who their donors are, and thus expose whose interests they are representing. In line with prior legislation, this requirement was not an attack on the fundamental principles of the First Amendment, but rather an attempt at balancing rights with interests. The Court’s approach to the balance of campaign contributions and free speech took an abrupt turn away from the principle of proportional balance when Justices Roberts and Alito joined the Supreme Court in 2005. Under Justice Roberts, the Court took a critical stance toward restrictions on any form of political funding.14 In the years leading up to Citizens, the Court struck down numerous campaign finance limitations, even those aimed at direct contributions, which were thought to be justified due to both their narrower scope and the need for balancing. The Supreme Court’s newfound disdain for campaign finance regulations ultimately culminated in the drastic and sweeping decision issued in Citizens, which struck down all restrictions on corporate spending in politics. Despite the remarkable constitutional significance it would go on to have, Citizens actually began not as an attempt to establish a precedent-setting landmark case but as a simpler attempt by a corporation to seek an injunction against campaign finance laws. Citizens United was a conservative, nonprofit organization with the stated goal of restoring the control over the US 14 See Randall v. Sorrell, 548 U.S. 230 (1973). The Court held that Vermont’s campaign contribution limits were unreasonably low and deprived candidates of a fair chance at victory. 13 Hansen, “Illusion of Coherence,” 589.
government back to the people. As one might reasonably guess, it was allied with the Republican party. During the 2008 election cycle, as a part of its campaign against the Democratic party, it produced a film criticizing the then-Democratic nominee candidate Hillary Clinton, and sought to air it on national television. Though the group’s PAC had ample funds, it wished to instead pay for the broadcasting using general treasury funds. Such an act would have violated the 2002 Bipartisan Campaign Reform Act (BCRA), which prohibited "electioneering communications" by incorporated entities. Thus, Citizens United took to the courts, seeking a preemptive injunction against the law. After multiple stages of litigation, the case eventually rose to the Supreme Court and was granted certiorari. It was in the Supreme Court that a simple case of whether an ad can be aired would balloon into a sweeping judicial review of existing campaign finance laws. In a 5-4 decision, the Court ruled in favor of Citizens United and struck down the BCRA’s restrictions on independent expenditures from corporations as violations of the First Amendment.15 The majority decision was written by Justice Kennedy, with Justices Roberts, Alito, Scalia, and Thomas concurring.16 The remaining Justices dissented on the matter of expenditure limitations. The majority made its position clear from the beginning by characterizing federal limits and requirements for PAC funds as an outright “ban” on corporate 16 While this is the majority, controlling opinion, parts of the majority have concurring opinions on specific issues. Justice Roberts and Alito wrote their concurring opinion on stare decisis and constitutional avoidance, which are not relevant to this paper. Justices Scalia, Alito and Thomas wrote a concurring opinion addressing the understanding of the First Amendment. 15 In this context, independent expenditures are any campaign spending which are not explicitly communicated with or coordinated with any candidates. These expenditures may take the form of independent media attacking or promoting a candidate and other forms of advertising. While the Court’s writing references primarily corporations, the ruling of Citizens also applies to unions as well. By treating corporations the same as unions, the Court gave equal treatment to special interests, regardless of their place in the economy. Just like corporations, unions can also be financially powerful organizations who aim to have their special interests carried out by the state. As such, any critiques in this paper towards allowing corporate interests can also be applied to union interests.
political speech.17 Given the strength of the language used, the merits of such a characterization are not immediately clear. As the government argued, the need for PAC funding merely constituted a restriction, not a ban. The Court defended its position by arguing that “a PAC does not allow a corporation to speak,” as it essentially gave too many hoops for the corporation to jump through.18 More importantly, the Court disagreed with such restrictions in principle. It argued that the First Amendment exists to prevent restrictions based on distinguishments amongst different speakers. If corporate speech was silenced, then it would violate the First Amendment and deprive the public of the privilege to determine what speech is worth consideration.19 Furthermore, the Court reasoned that, should it allow a partial restriction, then it would open the way to the government expanding its repression of speech to all points of the political process, which would then obviously violate the First.20 20 Such a line of reasoning is perhaps overly extreme. The Court gave no evidence for what basically amounted to a slippery slope argument. At no point did the government signal that it would seek such draconic measures across the entire speech process. By making this slippery slope argument, the Court, whether intentionally or not, effectively removed the possibility for the type of balancing done by the courts in the past. Against the ideas of jurists such as Grimm, the Court chose to embrace the right to free speech as an absolute right. As Grimm warns, such a move carries considerable negative ramifications for any constitutional system, and America is no exception. 19 See Amy J. Sepinwall, “Citizens United and the Ineluctable Question of Corporate Citizenship,” Connecticut Law Review 44, no. 3 (2012): 585-586. As Sepinwall points out, if the reasoning of the Court is truly based on the protection of the listener’s right to information, then one fails to understand how the Court did not consider the harmful effects of a potential pro-business hegemony in the media. When corporations are able to outspend other political organizations by a dozen times, does the listener truly benefit from the supposed increase in information? Furthermore, as Sepinwall also alludes to, the BCRA, the legislation contested by Citizens United, only banned ‘electioneering communication’” which meant radioed or televised speech regarding a candidate leading up to an election. No part of the BCRA prevented corporations from disseminating their views on their websites, issuing press releases, or even handing out flyers. 18 Hansen, “Illusion of Coherence,” 594. 17 It should be noted that throughout the majority opinion, the basis for why money can be seen as speech is never critically examined and reconsidered. Instead, it is taken as a given under the precedence of Buckley. In many ways, however, such an equation fails to meet the equal representation principles of a democratic system. If money is speech, then those who control wealth are able to have a larger say in government as they would be able to ‘speak louder.’ While it is undeniable that the very existence of capitalist property rights grants the wealthy more power, that power has traditionally been limited to the economic sphere, where it was used to achieve economic goals. By equating money to speech, Citizens has effectively opened the door for economic power to easily be transformed into political power, where the outcomes affect all in society.
Therefore, having established the limitations as a ban on speech, the Court faced the issue of whether or not to overrule the controlling Austin precedent, which upheld restrictions on corporate spending. There were three specific arguments used in the Austin decision justifying the Court’s position: anti-distortion, anti-corruption, and shareholder protection. The majority would confront all three in turn.21 First was the “anti-distortion” argument.22 In Austin, as mentioned earlier, the Court found that there existed a legitimate concern regarding the ability of those with large amounts of wealth to obtain disproportionate influences in politics as their interests did not have to lie with the general public. Therefore, the true public will would be distorted. In Citizens, the majority outright rejects anti-distortion as a government interest.23 Taking it a step further, the Court states that it is “irrelevant if the speech of the corporations has little or no correlation with public support.”24 In essence, the Court bases its position on the idea that corporate voices cannot distort the people’s voice as they are, in fact, part of the people, and therefore cannot be deprived of the rights of citizens, including the right to free political speech. While the Court does not explicitly make this argument, one can take the Court’s position a step further, and consider the effect of political donations by wealthy individuals, coined the “Bill Gates Objection.”25 Ultimately, there is little difference in the outcomes of massive spending by corporations versus ultra-wealthy individuals. They both gain a disproportionately 25 Sepinwall, “Corporate Citizenship,” 579. 24 Citizens v. FEC. 23 For the sake of clarity in this paper, the government and state will be used interchangeably. As both Hansen and the majority decision point out, the government, in filling its responding brief, surprisingly did not defend Austin on an anti-distortion basis, rather choosing to turn to shareholder protection. The neglect of the anti-distortion argument can signal either a strategic error or an intentional move away from it by the state. Despite the lack of contention, anti-distortion remains an important factor in reviewing Citizen’s effects on democracy. A democracy cannot properly function in its mission of carrying out the will of the people if the state-perceived will is in fact distorted. 22 Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010). 21 Hansen, “Illusion of Coherence,” 594.
large voice through financial spending. Neither represents the will of the people. It appears that most, if not all of the arguments made against giving corporations free speech rights can also be made against Bill Gates, someone who is clearly a citizen, with a right to unlimited political speech.26 However, it is important to recognize the differences between corporations and people, including the wealthy. In many ways, corporations do not fit the basic descriptions shared by any nation’s unified group of citizens. First, corporations have perpetual life and are not subject to the same time horizon issues as citizens. Second, corporations, in many ways, have even more privileges than normal citizens, such as the ability to engage with the economic sphere with limited liability. Third and most importantly, corporations can have multiple, seemingly conflicting interests stemming from their non-homogenized identities. For example, an American corporation can also have business dealings in other nations, hire workers from other nations, and even be owned by shareholders from other nations. Knowing this, can one truly say that any corporation is part of the American people? If even the most basic aspect of national identity is unclear for corporations, how can one judge if corporate interests should be expressed in American politics? After all, foreigners, no matter how much common ideology they share with the average American, are denied the right to vote.27 Even disregarding foreigners’ ability to participate in elections, it is undeniable that there are substantive restrictions on who or what can 27 This issue of unclear identity and citizenship becomes even more apparent when applying Schmitt’s political framework outlined in Concept of the Political. If who the true people are must be determined by an active decision of removing the heterogeneous elements of the population, where do corporations fit in? Corporations, with the pluralistic interests represented in their constituents, cannot ever become citizens in Schmitt’s normative sense. Moreover, if the political sphere is determined by the “friend – foe” distinction, then corporations most definitely do not belong in the political realm as it would be impossible to truly determine if a corporation is a friend or foe. 26 There is an argument to be made about restricting the political speech of ultra-wealthy individuals. Indeed, it becomes another act of balancing, this time between the enshrined free speech rights of the individual and the distortion effects caused by large amounts of wealth. The issue of speech by the wealthy is much more complicated than the case at hand, as individuals have a much stronger stake to robust free speech rights. Therefore, it will not be addressed in this paper. Instead, the paper will focus on how corporations remain politically distinct from wealthy individuals.
be a part of the American people. It would make logical sense that those same restrictions apply to corporations as well. As Amy J. Sepinwall points out in her paper on the question of corporate citizenship, Citizens attempts to establish a binary distinction on whether companies can be citizens using traditional understandings are often fruitless as they blur the line in too many areas. Rather, she advocates for classification based on a normative understanding of citizenship.28 Under this normative conception, the granting of citizenship status would be reliant on whether the entity in question shared in the “common interests of the nation.” Sepinwall argues that the vast majority of citizens participate in the national interest as it directly affects them.29 However, corporations are not guaranteed to do so. As economic entities, they place their own interests above those of the nation, thus disqualifying them from being classified as citizens. The second argument made in Austin that the Court confronted was on the principle of anti-corruption. Similar to the anti-distortion argument, the court also rejected the argument for restricting corporate spending on anti-corruption grounds. As shown by its reasoning, the Court held a narrow understanding of corruption, relegating it to solely the explicit presence of political debts and quid pro quos. 30 Defending its position, the majority argued that unlike campaign contributions, which were defined as funds given directly to the candidate to be used at their discretion, campaign spending, defined as payments done by donors independently of the candidates, could not be coordinated. Therefore, quid pro quos could not happen, and neither could corruption. Presenting political candidates on a good faith basis, the Court also argued that 30 Hansen, “Illusion of Coherence,” 596. 29 The similarity between Sepinwall’s discussion on the “common national interest” and Schmitt’s conception of a near-mystical, unified people is not lost in this paper. The implications of both arguments will be examined in the later sections on Schmitt. 28 Sepinwall, “Corporate Citizenship.”
the mere fact that speakers (i.e.: corporations) have influence over politicians does not equate to the politicians being corrupt. The Court's reasoning in this instance is valid, as the court’s anti-corruption argument appears more convincing than the anti-distortion argument. Under the rule of law, people, including politicians, are innocent until proven guilty. Lacking evidence of corruption, it would be unjust to prevent corporate spending only for the mere possibility of wrongdoing. As the court correctly points out, when there is corruption, it is the fault of the politicians and corporations involved, not free speech itself.31 As such, rather than limiting corporate political expenditures, the government should, as the court suggests, focus directly on fighting corruption. Thus, for this paper, corruption will not be discussed beyond here. However, even if one does not consider the explicit quid pro quo of corruption, its outcomes should still be considered. Obviously, corruption is not the end in and of itself for corporations. Rather, their goal is to obtain something from government policy that they otherwise would not have obtained from the economy. In this sense, the ultimate aim of corruption can be achieved by corporate spending even without explicit corruption. Given the sheer magnitude of current campaign costs, arguing that money does not affect the outcomes of elections ignores the reality of campaign financing. In most cases, money does in fact determine whether a candidate wins, even if simply due to the turnout effect. To the above point, consider two politicians running for office. One politician supports the banning of all gasoline-fueled cars and seeks to replace them with electric vehicles. There also exists a competing candidate, who is pro-fossil fuels. Additionally, let us suppose that there 31 Hansen, “Illusion of Coherence,” 597. However, as Hansen points out in the footnotes, if the court truly believes that corporate spending bears no capacity to corrupt, then why does the court even raise the hypothetical of corruption occurring?
is a corporation with an interest in maintaining gasoline usage, such as a leading oil company. The oil company can use its funds to make independent expenditures on advertisements attacking the anti-gasoline candidate. Assuming that these ads are effective, the corporate intervention in the election makes the pro-gasoline candidate more likely to win; once that candidate is elected, they will carry out their proposed policies. In both the above scenario and a scenario with corruption, the corporations in question are able to influence election outcomes and obtain their desired goal, thus transforming their corporate interests into policy. The politician does not even necessarily have to give any form of favorable treatment or additional considerations at all to the corporate interests. In fact, the candidate does not even necessarily need to know who the corporate donors even are. All the candidate needs to do is carry out their policy the way they promised to do, and they will be representing corporate interests. Thus, whether corruption actually occurs is irrelevant, as by allowing unlimited campaign spending, corporate interests inevitably permeate the state. More than simply changing the direction of state legislation, corporate spending could lead to policies that run against the interests of the general public. Alas, the majority in Citizens failed to give such an outcome due consideration, as evidenced by the lack of discussion in the opinion. Following anti-corruption, the Court moved on to the third and final pro-restriction argument – shareholder protection.32 It is worth noting that while the shareholder protection argument was presented by the government as the strongest defense of existing limitations on campaign spending, it was rebutted by the court in two brief paragraphs, perhaps signaling a disconnect between the state’s and Court’s understandings of the importance of the issue.33 33 Hansen, “Illusion of Coherence,” 597. 32 Hansen, “Illusion of Coherence,” 597.
The central issue of shareholder protection lies within the source of the funds used. Prior to Citizens, corporations were forced to form PACs and could not directly use treasury funds, so the only way they could fund those PACs was through raising political funds from employees and other affiliates. However, if the PAC requirement was removed, corporations would be able to use any money available at their disposal, including funds donated by investors. Such use of investors’ funds is problematic for two reasons. First, shareholders give capital to corporations for economic gain, not necessarily for the purpose of political action. If they wanted to enter politics, those shareholders may simply opt to donate the money directly. 34 Second, shareholders are not necessarily the ones who decide on if, or how, their funds are used for political purposes. As Marx and many other left-wing theorists have pointed out, in the capitalist system, economic production has become splintered among many groups. The laborers are separate from the managers, who are also separate from the actual owners. Neither the laborers nor the owners are able to make direct decisions on behalf of corporations — only managers can do that, and there are no guarantees that they will spend shareholder money on political issues the shareholders 34 See Sepinwall, “Corporate Citizenship,” 584. As Sepinwall points out, there is a point to be made regarding the functional identity of shareholders in relation to the political sphere. Even assuming that corporations could adequately and accurately represent the interests of shareholders, what, exactly, is the identity assumed by shareholders in those scenarios? Are they individual human beings with rights, or are they institutional actors like hedge funds? Moreover, even if they are people, are they participating as political citizens or purely as occupational investors? The constitution does not guarantee speech protections to jobs. Finally, as alluded to above, there is no factor that necessitates that individuals voice their political concerns through the corporate form. Even if corporations are denied the right to speech, the individuals still retain those rights and may exercise them as they see fit outside the corporation.
agree with.35 Given this agency problem, the government argued that the deregulation of treasury funds can cause serious damage to shareholder interests.36 Responding to the issue of shareholder protection, the Court essentially glossed over the state’s concerns. It first dismissed the seriousness of damage to shareholders, noting that there is “little evidence of abuse that cannot be corrected by shareholders”37 through corporate democracy. The Court also found that the restriction was too broad, as it also applied to non-public, single-shareholder corporations. Unlike corporations, these single-owner entities do not face the same agency issues and conflicts of interest. Therefore, the shareholder protection argument could not stand. In total, the Court found all three arguments from Austin to be inadequate. Finally, before issuing judgment, the majority stated that its decision did not reach the conclusion on whether the government was able to prohibit or limit the campaign influences of foreign interests and spending. By doing so, the court had essentially left the topic unsatisfyingly unresolved. Having refuted all three of the reasonings supporting the prior Austin ruling, the Court found that the prior case was ill-reasoned and thus should be overturned. The court also overruled the BCRA’s prohibitions on corporate and nonprofit soft money spending, effectively paving the 37Citizens v. FEC, 46. 36 Once again, we see the issue of the true nature of corporate interests resurface. Whose interests does a corporation really represent? Capitalism would say that corporations should represent the owners’ economic interests as they are the ones who put in capital and took the risk. However, as the discussion above has shown, it is not as cut and dry. 35 Implicit here is the tension between the relationship of the political sphere — represented by the state — and the rest of society, here represented by the economy. As Schmitt theorizes, a democratic state must be separate and above the rest of society for it to function properly. In essence, there must be a clear divide between the political and non-political. The issue of shareholder protection concerns that same divide but from the other perspective. Shareholders who invest in economic entities may want their impact to be limited purely to the economic realm. They may believe in one thing when it comes to the economy and something else when it comes to politics. Just like how politics wants to remain insulated from the economy, it is not unreasonable to posit the possibility that the economy would also like to remain separate from politics. The government’s position, in this case, echoes the same division between politics and the rest of society that Schmitt so strongly advocates for.
way to a new age of campaign spending. From that point on, corporations and unions would be allowed to use as much of their treasury funds as they desired on political expenditures, leading to the creation of the so-called “super PACs.” Moreover, since nonprofit organizations are not required to disclose their donors, corporations could now give unlimited amounts of money to nonprofits, thereby hiding the true source of political expenditures behind “dark money.” Understanding the dangers of the majority’s stance, the minority Justices, led by Justice Stevens, wrote a lengthy dissent critiquing the majority and railing against unlimited corporate spending. First and foremost, the Dissent disagreed with the majority’s repeated, insistent categorization of the PAC requirement as a total ban on political speech, calling it “highly misleading, and need[ing] to be corrected.”38 As the Dissent points out, despite the supposed burden imposed by the PAC requirement, in the previous presidential election PACs raised over a billion dollars for their respective parties. Echoing the principle of proportional balancing discussed earlier, the minority correctly concludes that the positives brought by the PAC requirement outweigh the relatively small burden it imposes. Regarding the substantive issues, the Dissent mirrored the majority in discussing one by one the rationales of anti-corruption, anti-distortion, and shareholder protection. First, with regards to the anti-corruption argument, the Dissent disagreed with the majority’s narrow view of corruption.39 For the minority, corruption went beyond the strict act of selling votes and included the possibility for politicians to sell access as well. In this regard, the Dissent’s position is similar to the idea discussed earlier on how the end goals of corruption can be achieved even without explicit corruption. As the minority posits, “the difference between selling a vote and selling 39 Hansen, “Illusion of Coherence,” 601-602. 38 Hansen, “Illusion of Coherence,” 601-602.
access is a matter of degree, not kind.”40 Even in the absence of quid pro quos, corporations can still get what they want through spending. Second, on anti-distortion, the Dissent argued that when understood properly, the anti-distortion argument was justified as it represented the classic government interest in protecting itself against “improper influences … that debilitate the democratic process.”41 The court also raised an interesting point about how it may actually be in corporate interests to have restrictions on spending, as it would prevent corporations from being shaken down by politicians for money. 42 Finally, as the Dissent and this paper correctly pointed out, large corporate spending could “marginalize” the opinions of the “real people” by drowning out non-corporate voices. This domination would in turn give corporations special advantages in the political sphere. Finally, regarding shareholder protection, the Dissent returned to a consideration of balancing, this time weighing shareholder interests against the right to free speech. Recalling its earlier rebuttal against classifying PACs as an outright ban on corporate speech, the minority contended that PACs struck a fine balance between the two sides of the scale. It would prevent the rent-seeking behavior of management while still providing shareholders a vehicle to express their views.43 Ultimately, the minority gave a strong critique of the majority’s unsound positions, 43 See Harvard Law Review Notes, “Citizens United at Work: How the Landmark Decision Legalized Political Coercion in the Workplace,” Harvard Law Review 128, no. 2: 669 – 674. For both the majority and the minority then, it was understood that corporations should and would only express the political views of their owners. However, both the majority and minority appeared to have given inadequate considerations to the other members of 42 Along that same line of thought, it could also be conceived that corporations would want limits on campaign expenditures to prevent a political arms race, where both sides would try to outspend each other to elect the candidate they support. 41 US Supreme Court, Citizens, dissenting decision, 74. As shown here, the logic of Schmitt’s overwhelming need for the state to remain insulated from special social interests was not lost on the dissent. 40 US Supreme Court, Citizens, dissenting decision, 57. The Dissent actually took the argument further, explaining that possibility of corruption was even worse for corporations, as their areas of concern were vastly different from the general public’s. For example, it can be said that corporate interests are directly tied to tax and business regulations, fields of policy which are not applicable to the general public. As a result, there is much less public scrutiny and oversight. Thus, the need for regulation and transparency is even greater. In having this understanding, the Dissent shows that it had considered and chose to abide by the principle of proportional balancing. In this case, it argued to balance the debilitating effects of special interests against the protection of free speech.
and in the process demonstrated consideration for proportional balancing not shared by the majority. In many ways, the objections and concerns raised by the Dissent parallel arguments by prominent theorists like Carl Schmitt in the historical debate between democracy and capitalism. While it may not be immediately obvious, the foundations of Schmitt’s ideas are not so far apart from the principles underpinning the Dissent’s arguments. Moreover, Schmitt’s discussions shed light on the possible consequences of the Court’s decision to allow corporate interests to penetrate American politics. In many ways, Schmitt was a highly controversial political theorist and jurist due to his unconventional views on state sovereignty and his involvement with the Nazi party during the Third Reich. However, the fact that Schmitt’s theories ultimately ended in an indefensible and twisted place does not discount the brilliant insightfulness of his earlier ideas and framework. His most important and influential works were written before the Nazi regime, during the Weimar period.44 Understanding the political and social context for Schmitt’s writing is crucial, as it helps elucidate Schmitt’s deepest concerns expressed in his essays. As a conservative theorist writing amid Germany’s first experiment with democracy, Schmitt saw firsthand the dangers brought by unchecked interests. Following Germany’s defeat in World War One, the subsequent power vacuum left by the collapse of the Hohenzollern monarchy led many groups from both the left and right to attempt to seize state power for their own interests.45 These 45 Carl Schmitt, “Introduction,” 14-17. These interests would stem from both wealthy business owners as well as labor unions. 44 Carl Schmitt, “Introduction,” Constitutional Theory (Durham: Duke University Press, 2008), 3-5. corporations, such as the workers. The court does not address important questions such as whether corporations can force its workers to participate in political activities. Indeed, as the Harvard Law Review points out, prior to Citizens, the political participation of workers was never an issue as the corporations themselves were largely barred from politics. Following Citizens, the constitutionality of such actions remained unclear.
interest-focused groups openly attacked the democratic republic, often trying to use the very tools of democracy to destroy it. As socio-economic issues such as inflation and the threat of communism worsened in Weimar, they would spill over into the political realm. Based on the divides in narrow, social interests, parties from both the left and right became increasingly fragmented, creating a nightmarish scenario of extreme pluralism where even small compromises grew increasingly difficult. The competing interests would ultimately paralyze the parliamentary government from forming the necessary majorities, transforming what Schmitt viewed as an instrument of national will to being just another battleground for social conflicts. At the same time, opponents of democracy from all parties continued to attack the failing Republic. It is in this specific context of Weimar being pulled apart by competing interests that Schmitt makes a specific argument against the state allowing unchecked interests in politics.46 The centerpiece of Schmitt’s framework on democratic politics is the role of the state. Drawing on his experience with the deterioration of Weimar, Schmitt argues that the state, embodying the political realm, must maintain a clear and elevated position above the social and economic spheres.47 Quoting Benjamin Constant, a prominent advocate of personal freedoms from the French Revolution, Schmitt posits that “the government outside of its sphere should have no power, and in its sphere, it can’t have too much.”48 The clear separation between politics and the rest of society is critical — without it, there would be nothing to prevent a reenactment 48 F. R. Cristi, “Hayek and Schmitt on the Rule of Law,” Canadian Journal of Political Science 17, no. 3, 526. 47 Lars Vinx, Guardian of the Constitution: Carl Schmitt and Hans Kelsen on the Limits of Constitutional Law, (Cambridge: Cambridge University Press, 2015), 131-133 (Schmitt), 196-198 (Kelsen); Carl Schmitt, Legality and Legitimacy, (Durham: Duke University Press, 2004), 6. In Legality and Legitimacy, Schmitt critiques the notion of an economic state as one that guarantees the rise of an administrative state due to the interests involved. 46 While Schmitt’s arguments are complex and dynamic, this paper will focus solely on his ideas during the aforementioned period of crisis in Weimar, as it is most relevant to the discussion on Citizens and the role of economic interests in society.
of the disaster of Weimar. Economic and social interests would once again penetrate the state and exert their influences, robbing the people of their legitimate, democratic will. Thus, Schmitt presupposes the existence of some discernable form of substantive, national will of the people that transcends a simple majority of votes.49 The seizure of the state by “organized social complexes of power” is dangerous and indeed disastrous for a democratic state, Schmitt writes, as these social interests essentially hijack the state’s decision-making process, inserting their own narrow interests to corrupt something that is supposed to benefit the people as a whole.50 In the process, these special interests have transformed the traditional liberal, non-interventionist state into something with insidious consequences – the “quantitative total state.”51 To Schmitt, a quantitative state is one that is captured and pulled in different ways by competing, pluralist interests. The state is quantitative because it is controlled by a number of different interests, and rather than having a single, unified national will, the state operates based on a quantifiable number of competing interests.52 Its will formation process is reduced to distinctions between which interests have a quantitative majority. What’s worse for Schmitt is that such a state is also totalitarian as there are no limits to the state. Under such a state, organized socio-economic interests are able to capture the state 52 As critics of Schmitt have pointed out, in reality, such a unified national will is simply myth. In any group of people, there will be a pluralism of interests. 51 Schmitt, Legitimacy, 92-93; Vinx, Guardian, 197-198; Caldwell, Popular Sovereignty, 113. 50 Vinx, Guardian, 196 – 198 (quote from Kelsen); Peter C. Caldwell, "Discussion - The Concept and Politics of the Economic Constitution," Edited by Guillaume Gregoire and Xavier Miny, Legal History Library 61 (The Idea of Economic Constitution in Europe, 2022): 119-153. 49 Schmitt, Legitimacy. Schmitt’s idea of the “true” people draws a parallel with Sepinwall’s notion of the normative citizen as an entity that participates in a common national interest. Both Schmitt and Sepinwall implicitly assumed that such a common, unifying force can exist. However, it cannot be understated that Schmitt’s conception has many flaws. It is impossible to have a body of people that is homogenous and shares a singular, common goal while simultaneously bearing no competing interests. Therefore, while Sepinwall’s idea of the normative citizen is useful for analyzing the fundamental principles of what makes an entity a citizen, it is not practical in making any meaningful distinctions in the real world.
“without ceasing to be social creatures.”53 Thus, the state is inseparably linked to the rest of society and is pulled down from its higher, independent position. Moreover, by allowing social interests to capture the state, the limitations on the state itself would be broken.54 Motivated by those social interests, the state would proceed to intervene in society in a totalitarian fashion, thereby becoming a ‘total’ state, exerting itself into the sum totality of society and blurring any meaningful distinctions between the two. Rather than an entity that sits atop society to govern it, the state essentially becomes a battleground for social and economic conflicts. It is debatable whether Schmitt was truly a democrat, but in almost all of his crucial writings, he proclaims time and again that the state must be based on some legitimate will of the people. In this regard, Schmitt follows the democratic tradition by basing governance on the will of the people. Given this basic principle of democracy, Schmitt states that a quantitative total state is highly undesirable as it eliminates the possibility of a true, legitimate democratic process. At any point in time, the actions of the government are not due to the will of the people, but rather due to the interests of the majority. Therefore, as shown by Weimar, the real danger of allowing special interests to permeate the state is that it distorts the true will of the people, causing extreme fragmentation and turning the state into merely another battleground for opposing forces in a displaced civil war. As most will have picked up by now, it is not hard to draw a parallel between Schmitt’s conception of invasive social interests and the economic interests inherent to corporations. By opening the door to granting corporations nearly unlimited influence in the American political process, the majority in Citizens had potentially placed America on the same path as Schmitt’s Weimar. When corporations spend political expenditures, they are essentially exerting their will 54 Christi, Authoritarian Liberalism, 177. 53 Caldwell, Popular Sovereignty, 112.
to align the state with their interests. When competing economic interests engage in this political tug of war, the state inevitably degenerates into one that is quantitative and total, in Schmitt’s language. Nothing prevents a repeat of the democratic disintegration witnessed in Weimar. Elections, rather than being a reflection of the people’s will, would degenerate into being simply another battleground for corporations’ economic interests. Moreover, these corporate interests could then force the state to intervene in both society and economy, thus interacting with more parties and further spreading the conflict. In the process, these corporate interests would break down all barriers between the state and society, effectively bringing about an American total state. As a concrete example, recall the scenario of the oil corporation versus the renewable energy company previously described. By granting both companies access to politics, Citizens could potentially transform a purely economic battle of profits and efficiency into a political one centered around state power. Moreover, analogous to Schmitt’s depiction of Weimar, by allowing economic interests to permeate the state, the Court potentially allowed it to become an instrument of the plutocratic actors rather than the democratic majority. Thus, the democratic will of the people would be effectively replaced in deciding the objectives of the state. Additional issues with the majority’s decision arise when one considers that, under Schmitt’s framework, corporations might not necessarily be considered citizens like individual people. By both the aforementioned minority opinion and Sepinwall, the court does not give a rigorous definition or consideration of what it means to be a citizen, or in other words, a part of the people. Rather it is taken as a given that, since corporations are associations of people, they should automatically be counted as a part of the people. However, under Schmitt’s framework,
the definition of corporations as people is problematic because corporations can be non-substantive and purely transitory. In the same manner that a simple majority does not constitute the will of the people if individuals can always leave or join the majority, a corporation also cannot constitute will because people regularly leave and join companies as well. If the corporation derives its legitimate interest in the state from its constituents, how can its interest be substantive if its constituents are only transitory? Moreover, the court does not address the issue of whose interest corporations truly represent. Is it the shareholders, the workers, or the managers? The court seems uncertain about where it wants to go. On one hand, it stands by the capitalist tradition of corporations existing to serve their owners when it posits that shareholders can and should exercise their power to reign management in through corporate democracy. However, on the other hand, if shareholders' interests are truly the ones that should be represented, why are managers even allowed to wander away from that in the first place? Why is it the burden of the shareholders to reign them in? The issue of who the corporations truly represent sheds light on the majority’s problematic assumption that corporations are the same as individuals. Additionally, the Court does not expand upon the necessity of the corporate form. If the people working at the corporation had a vested interest in democracy and wanted to express their political views, they could donate their money directly. The corporation would have no need to do so. The very fact that a corporation is required to be the mouthpiece for democratic action shows that it transforms the substance of the constituents’ expressed wills. Therefore, the corporate form would no longer accurately represent the true, legitimate interest of the people.55 55 See Schmitt, Legality and Legitimacy, and Guardian of the Constitution. See also Sean Irving, “Limiting Democracy and Framing the Economy: Hayek, Schmitt and Ordoliberalism,” History of European Ideas 44, no. 1, 116-117. Schmitt’s ideas on the issue of representing the will of the people are also useful as they shed light on the other side of the issue should the Court have upheld the suppression of corporate speech. If the court had done so,
Finally, the majority failed to resolve the issue of whether foreign interests or citizens could gain a voice in American politics through corporations.56 As Hansen points out, the Court left the issue hanging because it was a question the court could not answer. Under the Court’s own qualifications of corporations as people, a strong argument can in fact be made that foreigners who have stakes in American corporations should be allowed to participate in American politics. Otherwise, any restrictions would amount to discriminating against American corporations based on their identity of having foreign owners. The court explicitly renounced such forms of discrimination in matters of political speech. However, taking a step back and remembering Schmitt’s fundamentally democratic notion of the state acting out the will of the legitimate people, it is unimaginable to see how foreign nationals could fit into this political process. Even if one disregards Schmitt’s mystical and impossibly restrictive conception of the “true” people, it would be simply absurd to say that it would be democratic for foreign nationals to have a say in the American political process. By ignoring the frameworks of democracy from thinkers like Schmitt, the Court missed the point on the central principle of democracy – the connection to the people. While Citizens most directly influenced the state by allowing corporate interests to more easily access it, it also had a more indirect influence on the economy as well. Moving away from the ideas of Schmitt and their interactions with the state, the ideas of Hayek can offer guidance 56 Hansen, “Illusion of Coherence,” 598. then it would not have been inconceivable for the same argument to be made about other political entities, such as political parties. Why have parties at all if there exists some true, coherent will of the people that the state can act upon? Indeed, if one abides strictly by Schmitt’s ideas, the self-centered interests of power-hungry parties would fragment the public just as much as socio-economic interests would. Thus, the argument quickly becomes one against any form of pluralism. Indeed, Schmitt would ultimately make this argument and use it to attack the pluralistic parliamentary system. Rather than pluralistic parties, he reasoned that a dictator would better serve the interests of the people as the dictator would be singular and unfragmented. At the same time, this dictator would somehow, almost as if by magic, divine the will of the people and act upon it. Therefore, the complex arguments of Schmitt are useful not only for analyzing the weak spots in Citizen’s reasoning but also as a warning for what could happen if the Court had gone the other way.
on the unintended consequences Citizens could have on the American economy. Similar to Schmitt, Hayek wrote the majority of his most influential works during a period of crisis and unrest regarding the relationship between capitalism and democracy. As a prominent neo-liberal economist hailing from The Austrian School, Hayek observed pushback against classical liberal economics from both the political left and right in the years leading up to the Second World War. 57 Alarmed by what he saw as the path toward state-controlled economics, Hayek’s writings were both an economic critique of government intervention and a political critique of totalitarianism brought about by economic intervention. Politically speaking, his positions actually strongly paralleled those of Schmitt.58 Having already discussed Schmitt, this paper will instead focus on his economic arguments against intervention. Like most liberal economists, for Hayek, the most important aspects of a well-functioning economy are the presence of free markets and open competition.59 As he proclaims in The Road to Serfdom, the growth of economic success and prosperity is directly tied to the freedom of men to participate in the economy and “shape their own [lives].”60 Indeed, it is only when the markets are free that competition can take place, as it requires the ability for competitive actors to enter the market and for inferior actors to exit. When men have the ability to solve their own problems, Hayek reasons, they will produce the best results as only they know what’s best. However, the 60 For proof of this relationship, look no further than the evolution from feudalism to capitalism, and the subsequent leaps in prosperity that followed. Hayek makes a good point about freedoms. Freedom, stemming from the tradition of the French revolution, meant “freedom from coercion.” Freedom from the arbitrary power of other men. However, as society progressed, the new notion of freedom became “freedom from necessity” and the release from the circumstances which limit the range of choices for people. This freedom from necessity was essentially wealth. As seen in the Citizens case, the freedom given to corporations was precisely this freedom from necessity. Rather than being limited to PACs or their own websites, corporate wealth allowed them to gain more choices in how they interact with the political realm. Corporations were not freed from the unjust oppression of other men. 59 Friedrich A. Hayek, The Road to Serfdom, (Chicago: The University of Chicago Press, 1944), 14 – 15. 58 See in Cristi, “Hayek and Schmitt Rule of Law,” and William E. Scheuerman, “The Unholy Alliance of Carl Schmitt and Freidrich A. Hayek,” Constellations 4, no. 2. 57 Such pushes against liberal capitalism would come from the socialists who sought centrally planned economies and Fascists who promoted corporatism. Both systems attacked the principle of competition capitalism was built on.
central economic planning socialists advocate for removing that freedom from individuals. It instead places the decision-making power and the economic problem in the hands of the community, which would in turn determine objectives like which goals ought to be served.61 For Hayek, such an outcome is disastrous as it inhibits the freedom of the individual, and therefore removes the possibility of competition. Hayek’s most famous technical argument against central planning is laid out in his paper on the nature of central economic planning.62 In essence, Hayek makes an epistemological argument regarding the ability of non-market participants to accurately gather economic knowledge. Hayek explains that due to the sheer complexity of the modern economic system, it is simply impossible for any central authority to have a “synoptic view” and have enough information to make optimal choices.63 The only way those choices can be made is by the aggregation of market participants who have sufficient information to make the correct choices for themselves. Through such an aggregation, the entire system will ultimately become efficient. To Hayek, the efficiency of competition was ultimately embodied by the price mechanism, as all relevant information would be priced in. For example, when deciding what the most efficient use of a piece of land is, the price mechanism solves the issue by giving it to whoever is willing to pay the most for it as they will extract the most benefit from it.64 However, through state intervention in the economy, the entire processes of individual calculation and competitive efficiency are bypassed, as the central authority must make the ultimate decision on 64 Leland B. Yeager, "Mises and Hayek on Calculation and Knowledge." The Review of Austrian Economics 7, no. 2 (1994): 93-109. 63 Hayek, Serfdom, 49. 62 Friedrich A. Hayek, “The Nature and History of the Problem,” in Collectivist Economic Planning, edited by Friedrich A. Hayek, 3 - 11. 61 Hayek, Serfdom, 92.
resource allocation.65 Unlike the system of open competition, there is no mechanism guaranteeing that the outcome will be efficient, thereby harming the economy. Therefore, Citizens, despite appearing to have benefited the economy by giving it a larger say in politics, could have potentially harmed the economic sphere by opening the door to increased government interventions. As discussed earlier, when the economy intervenes in politics, politics must also intervene in the economy. After all, corporations would only make campaign expenditures if their cost-benefit analyses suggest that they have something to gain. The Court majority’s narrow notion of distortion and corruption rejected the possibility for such “money for influence” exchanges to exist, as they have most likely intentionally limited themselves to explicit quid pro quos. However, as the Dissent pointed out, it is undeniable that implicit understandings exist between politicians and donors. Moreover, even if there was absolutely no form of understanding, corporations are able to tip the scales in favor of candidates they believe will help them the most by spending large sums of political expenditures, thus helping those candidates to be elected. Once those candidates are elected, they are likely to create economic policies that are beneficial to the corporation which supported them. Thus, even with absolutely no form of collaboration between corporations and politicians, Citizens has theoretically increased state intervention in the economy by allowing unlimited corporate expenditures. The consequences are clear from Hayek’s theories on economic competition. Consider again the example of the oil corporation and the clean energy company. In the absence of Citizens, the two companies would have been much more limited in their ability to influence politics. Any battles over profits would have had to be settled in the economic realm through 65 Hayek, Serfdom, 37.
competition. This competition could take various forms, such as lowering costs, creating better products, and so on. The important part is that whatever the outcome, it would have been the efficient one as the company offering the best product would be chosen by consumers. However, post Citizens, the companies were no longer forced to settle their disputes in the economic realm. Instead, they could take to the political sphere and spend money to help elect supportive politicians. Suppose the clean energy company is able to elect candidates who would go on to create bans on carbon fuels. In that scenario, the oil corporation losing to the clean energy company is not a result of efficient competition. In the absence of state intervention, the oil corporation might have very well pushed out the clean energy company, thereby creating a more efficient outcome for the economy overall. As Hayek correctly points out, rather than serving the greater good of the economy, state intervention results in the “‘[conscious] direct[ion]’ to serve particular ends in a definite way.” In the case of Citizens, those particular ends would be special corporate interests.66 By opening the door and allowing economic interests to penetrate the state, Citizens had the potential to damage the very same economic actors it tried to help. In conclusion, Citizens was a complicated case with significant ramifications for both democracy and capitalism. As pointed out by the dissent, in issuing its decision, the majority ignored fundamental principles of constitutionalism and democracy such as proportional balancing, the question of citizenship, and the relation between democratic and special interests. More than merely granting corporations the right to speech, by allowing unlimited spending, the Court opened the door to allowing special socio-economic interests to penetrate the American state to an unprecedented degree. As the ideas of the theorists from the historical debate surrounding democracy and capitalism show, the presence of special interests in politics can have 66 Hayek, Serfdom, 33.
unintended, damaging consequences for both the state and the economy. In terms of the political sphere, as the theories of Schmitt show, special interests can fragment the state, depriving it of its democratic substance. On the other hand, Hayek’s analysis shows that the presence of economic interest in politics may actually harm the economy as it opens the door for state intervention in the free market. Ultimately, this paper has shown that by not considering important arguments and principles from the historical debate, the Citizens majority took neither democracy nor capitalism seriously, failing to adequately consider and mitigate the potential, unintended consequences.
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The Civil Rights Act of 1964 Is Not Enough
The Civil Rights Act of 1964 Is Not Enough Brina Golubovic
Introduction The Civil Rights Movement, a pivotal time period in the United States, was thought to have brought about change to protect people of color in the United States. With years of slavery, segregation, Jim Crow laws, and systemic racism at play preventing the true equality of races, the Civil Rights Act of 1964 was thought to be a beacon of hope. However, nearly 60 years after the passing of the Civil Rights Act of 1964, the United States remains in a similar state. The Civil Rights Act in theory supports the equalization of Black Americans. However, in practice the Civil Rights Act has not done enough to protect, support, and establish equality for Black Americans. The Counterargument: The Civil Rights Act of 1964 Ended Discrimination and Racism The Civil Rights Act of 1964 gave Black Americans the opportunity to bring change into their own lives, an argument made often. Deniers of the systemic effects that segregation and racism have had on the United States maintain that it is not the fault of these preexisting systems, rather up to Black Americans to figure out a way to ensure their own safety and success. Frequently, the other side argues that there are other reasons for the disenfranchisement of Black Americans, commonly placing the blame on the Black community. There is no recognition for the little work and success that the Civil Rights Act of 1964 had, instead an ignorance that claims to state that “racism just doesn’t exist anymore” approach.1 Compared to recognizing the limited amount of change brought about by the act, this approach perpetuates systemic racism. History of Segregation Segregation, a theme seen in American history from the dawn of its existence, divided racial minorities from White Americans. Whether in the form of public restrooms or school 1 Brenda A. Randle, “Liberty and Justice for All, but What If I’m Black?” Race, Gender & Class 23, no. 1-2 (2016): 166-171, https://www.jstor.org/stable/26529196.
buildings, people of color were expected to stay in their own world away from White communities. Prior to the beginning of segregation, the Emancipation Proclamation was issued in 1863, two years prior to the end of the Civil War. However, this did not free all enslaved people. Many plantation owners did not inform enslaved peoples of their new freedom; Lincoln’s initiative was merely to protect the union, with little concern over what is done to the Black community. Directly following the Emancipation Proclamation, the start of segregated housing can be recognized. Thereafter, the Jim Crow era, beginning in the 1870s, took over the nation. The infamous Supreme Court case Plessy v Ferguson (1896), led to one of the most controversial decisions in United States history. In 1896, the Supreme Court decided that the sentiment “separate but equal” was constitutional, intending to continue the legacy of segregation and discrimination. Such laws segregated Black Americans, and other people of color, from white Americans. This was apparent in housing, education, restaurants, and many other sectors of life. However, housing remained one of the most apparent proponents of segregation. Jim Crow continues to haunt and propel segregation in the United States. City splitting and neighborhoods for one race only were a common theme of this time period. As once enslaved Black Americans were told after the Emancipation Proclamation, there were new freedoms to achieve the American Dream. But they were left to find a confusing and racist world to navigate. Faced with redlining and racially divided suburbs, Black Americans faced a new form of legal discrimination: Jim Crow.
Jim Crow’s Implications Jim Crow, first known as a blackface minstrel show during the early 1800s, is where a white man would dress up as the caricature of a Black man.2 Minstrel shows stemmed from systemic racism as there was a pre-existing notion that Black Americans were creatures, alive for the enjoyment of white society. This portrayal of Black Americans as a caricature that was subhuman and readily available to make fun of created a view of the Black community that allowed for discrimination to persist. Black Americans were viewed as animalistic and cartoonish, not in need of the same rights and respect that white Americans benefited from. Although this was not the main proponent of systemic racism, it furthered the ideology that Black Americans were less than white Americans. As previously mentioned, the Jim Crow era began in the 1870s. During this period, segregation and systemic racism heightened. Black Americans feared for their lives, as their new so-called freedom gave them essentially no rights. Left to fend for themselves, they had no money nor place to turn to. Rather, the government left them with no reparations or assistance during this transitionary period. Following the eventual freedom of enslaved peoples, indentured servitude took over. Black Americans found themselves impoverished, without anywhere to turn to. Plantation owners took advantage of this situation, making contracts with such groups. Black Americans found themselves taken advantage of yet again, continuing the cycle of debt to white America. Those who did find themselves free and in their own lives faced different threats. Lynchings of Black Americans began to climb. Any excuse was used for these lynchings, with Emmett Till as one of the most infamous examples. Till, a fourteen-year-old Black boy was lynched for allegedly whistling at a white woman. Till, found murdered and his body in such 2 Kellen Hoxworth, “The Jim Crow Global South,” Theatre Journal (Washington, D.C.) 72, no. 4 (2020): 443-467, 10.1353/tj.2020.0099.
horrific condition was difficult to identify, yet his murder was not uncommon.3 This was not a rare occasion during this time. More than four thousand people were lynched between the years 1882 and 1968.4 This form of terror on the Black community from the Jim Crow South led to the largest migration in the United States, the Great Migration. Between 1910 and 1940, Black Americans migrated across the nation, typically heading north or to larger cities.5 Additionally, these lynchings left Black Americans in constant fear for their lives, giving them a pause before moving into suburbs. Those who could afford to move to the suburbs had to decide whether it would be safe and responsible. With concern and fear regarding where to move to, neighborhoods found themselves segregated. Moreover, predominantly white neighborhoods that did find an increase in Black residents typically saw an increase in exiting white residents moving to different areas to avoid integration. By purposely avoiding integration, segregation saw an uptick. Black neighborhoods remained Black, and white neighborhoods remained white. While there was the standing of “separate but equal,” this was far from reality. Black neighborhoods were extremely impoverished, overpoliced, and local schools were underfunded. Due to redlining, Black residents could not move out of these segregated and impoverished neighborhoods to provide better chances for future generations. Generations of Black Americans were forced to struggle through similar experiences. Fighting the precedent set by Plessy v. Ferguson (1896), Brown v. Board of Education (1954) was a major win leading to the Civil Rights Act of 1964. The Supreme Court decided that 5 Sarah-Jane (Saje) Mathieu, “The African American Great Migration Reconsidered,” OAH Magazine of History 23, no. 4 (2009): 19-23, https://www.jstor.org/stable/30036966. 4 Magdalene Zier, “Crimes of Omission: State-action Doctrine and Anti-lynching Legislation in the Jim Crow Era,” Stanford Llaw Rreview 73, no. 3 (2021): 777-819, https://go-gale-com.proxy.lib.umich.edu/ps/i.do?p=AONE&u=umuser&id=GALE|A660990349&v=2.1&it=r. 3 Magdalene Zier, “Crimes of Omission: State-action Doctrine and Anti-lynching Legislation in the Jim Crow Era,” Stanford Law Review 73, no. 3 (2021): 777-819, https://go-gale-com.proxy.lib.umich.edu/ps/i.do?p=AONE&u=umuser&id=GALE|A660990349&v=2.1&it=r.
segregation on the basis of race was not constitutional, leading into a supposed era of integration. Even though schools and neighborhoods began to integrate, segregated districts remained. The 1964 Act was not able to address the remaining forms of segregation as its purpose was to outlaw future discrimination. This allowed many issues stemming from systemic racism to thrive. The systems in place that created such discrimination, laws, and policies were not eradicated, rather shoved under the rug. It was as if the past was ignored, and ignorance was bliss. The movement that fought long and hard was finally answered, and this was a win for the books, but what of the remaining issues? How would they dissipate? Black Americans continued to endure threats for their lives as there was an outrage against the change in social order. Black communities and individuals who attempted to integrate found themselves endangered, as seen with Ruby Bridges in 1960. Bridges was the first Black child to attend a white, segregated school after the Brown v. Board of Education (1954) decision.6 Upon her arrival, she was met with parents holding Black dolls in coffins, nooses, and racial slurs as she walked up the steps towards the entrance.7 Despite the new act, existing racism was not eliminated, leaving Black Americans unsupported and unprotected. While this was before the passing of the Civil Rights Act, it was yet another bone thrown to the Black community. An empty promise to protect children in school, but it did not purposefully integrate schools, rather allowed for children to change schools if their parents deemed it necessary. Unsatisfied with the results of Brown v. Board of Education (1954), civil rights activists pushed for further protection and support from the government. 7 Ruby Bridges, Interview. 6 Ruby Bridges, Interview.
Redlining and Segregation “Legislation known as Jim Crow laws separated people of color from whites in schools, housing, jobs, and public gathering places.”8 During Jim Crow, laws were passed, including redlining, which exacerbated segregation between Black and White communities. Redlining was “instituted by the federal government’s Home Owners Loan Corporation (HOLC) in 1937 [and] was designed to steer investment away from risky places. These were defined as those places with older buildings and non-white residents”.9 Redlining was designed to find legal means of discrimination in housing. As Black Americans were more likely to live in impoverished communities during this time period, redlining ensured these communities would not be able to take out loans in order to move to “better” neighborhoods. This in turn created a chain reaction in the missed opportunities for the Black community. However, this was an endless cycle. Redlining not only maintained segregation, it intended to do so. Redlining perpetuated segregation as it directly prevented Black families from integrating into white neighborhoods, keeping neighborhoods of color with predominantly lower-class families leading to the degradation of these neighborhoods. Without access to loans, Black Americans could not move to wealthier neighborhoods, meaning that, if their children were attending public schools, the choices for schooling would decline, and integration would decrease in schools. Segregation Today Issues of segregation and social conflict remained up until the Civil Rights Act of 1964. Therefore, did it ever leave? Black Americans suffered at the hands of white Americans, through acts of violence such as lynching and assault. These acts and forms of discrimination left a 9 Mindy Fullilove, "Redlining Trauma." Race, Poverty & the Environment 21, no. 2 (2017): 84-86, http://www.jstor.org/stable/44687766. 8 “Separate is Not Equal, Brown v Board of Education: White Only Jim Crow in America,” https://americanhistory.si.edu/brown/history/1-segregated/white-only-1.html.
horrific mark on the United States that appears to remain. The 1960s were a pivotal point in American history, with the passage of a plethora of acts intended to protect minority groups. The Civil Rights Act of 1964 sought to protect people no matter their race, religion, sex, or country of origin.10 However, major cities today remain highly segregated, with white residents in wealthier neighborhoods and minority communities in lower class neighborhoods. Segregation remains at the heart of the United States, plaguing most cities, and it continues to affect each portion of life, causing inequalities in all aspects. Whether in schools or housing, segregation continues to keep Black Americans in a continuous loop of under-succeeding, preventing them from escaping systemic racism. As the Civil Rights Act of 1964 was not able to support Black Americans after its passing, it persists as a policy that has done little to bring about change. Segregation Case Study: New York City New York City illustrates an example of segregation leftover after the passage of the Civil Rights Act of 1964.11 As Black residents prior to the Civil Rights Movement moved into cities from rural locations, New York City saw an influx of Black movement. However, Black residents found themselves in primarily Black neighborhoods, with white neighborhoods maintaining their whiteness. Black residents had limited mobility, restricting them to specific areas of the city. Despite the fact that redlining was outlawed in 1968 by the Fair Housing Act, “the wealth of housing market audit research has documented that covert forms of discrimination continue to flourish.”12 Featured in the image, the white population has nearly tripled from 2000 12 Emily Rosenbaum and Grigoris Argeros, “Holding the Line: Housing Turnover and the Persistence of Racial/Ethnic Segregation in New York City,” Journal of Urban Affairs 27, no. 3 (2005): 261-281, 10.1111/j.0735-2166.2005.00236.x. 11 Nikole Hannah-Jones, “Choosing A School for My Daughter In A Segregated City,” in Rereading America (New York Times, June 9, 2016), 155. 10 U.S. Department of Labor, “Legal Highlight: The Civil Rights Act of 1964,” Office of the Assistant Secretary for Administration & Management, accessed November 28, 2022, https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964#:~:text=In%201964%2C%2 0Congress%20passed%20Public,hiring%2C%20promoting%2C%20and%20firing.
to 2016.13 Nevertheless, the Black population in the same areas outlined have dropped.14 As more white residents find their way into these districts, Black residents are forced out, continuing the cycle of segregation. Similarly, Black residents still saw remnants of both segregation and redlining in their neighborhoods and schools. As of 2016, Black students in public schools, which are attended based on where one lives, saw 67.4 percent of their school attendance composed of other Black students.15 This is in comparison to the year 2000 in which Black students saw 75.9 percent of their peers as other Black students.16 Despite the decrease in Black student composition in public schools, Black residents are not integrated with white residents. With racial integration having a positive impact on students and children, there would be benefits for this to happen.17 Yet, the Civil Rights Act of 1964 was not able to integrate, rather desegregate. 17 “The Benefits of Socioeconomically and Racially Integrated Schools and Classrooms,” The Century Foundation, April 29, 2019, https://tcf.org/content/facts/the-benefits-of-socioeconomically-and-racially-integrated-schools-and-classrooms/. 16 Kfir Mordechay and Jennifer Ayscue, “Diversifying Neighborhoods, Diversifying Schools? The Relationship Between Neighborhood Racial Change and School Segregation in New York City,” Education and Urban Society, 0(0) (2022), https://doi-org.proxy.lib.umich.edu/10.1177/00131245221110555. 15 Kfir Mordechay and Jennifer Ayscue, “Diversifying Neighborhoods, Diversifying Schools? The Relationship Between Neighborhood Racial Change and School Segregation in New York City,” Education and Urban Society, 0(0) (2022), https://doi-org.proxy.lib.umich.edu/10.1177/00131245221110555. 14 Kfir Mordechay and Jennifer Ayscue, “Diversifying Neighborhoods, Diversifying Schools? The Relationship Between Neighborhood Racial Change and School Segregation in New York City,” Education and Urban Society, 0(0) (2022), https://doi-org.proxy.lib.umich.edu/10.1177/00131245221110555. 13 Kfir Mordechay and Jennifer Ayscue, “Diversifying Neighborhoods, Diversifying Schools? The Relationship Between Neighborhood Racial Change and School Segregation in New York City,” Education and Urban Society (2022), https://doi-org.proxy.lib.umich.edu/10.1177/00131245221110555.
Residents in New York City remain in the same cycle as those who came before them, leaving them secluded from other races and classes as they endure the same seclusion. Correspondingly, Black and Latino children in New York attend schools that have less than ten percent of students that are white.18Black students and residents were and are not supported by the Civil Rights Act as the pattern of moving impoverished neighborhoods, ‘bad’ schools, little education from lack of opportunities, to a career that makes little money to survive. Segregation within public schools is a direct effect of the segregation of neighborhoods, as public schools typically take children from a specific zip code that corresponds with the school district. The children of migrants who moved to New York City to escape Jim Crow have passed this sequence down through generations, continuing segregation as current residents cannot move out and benefit from the opportunities that white residents have. Segregation Case Study: Birmingham, Alabama Comparably, Birmingham, Alabama remains one of the most segregated cities in the United States. Just as New York City has seen little integration over the years, Birmingham has experienced a similar change. Six years following the Civil Rights Act of 1964, Birmingham school districts saw a level 94 in segregation.19 Birmingham mandated desegregation in 1963, but this did nothing to address the segregation that already existed. There is a clear depiction of segregation between Black and white residents in the following image. Birmingham, Alabama saw a multitude of fights against existing segregation. It saw an increase in its Black population by 868 percent between 1890 and 1940.20 This was the largest population increase that was seen 20 Bobby Wilson, “RACIAL SEGREGATION TRENDS IN BIRMINGHAM, ALABAMA,” Southeastern Geographer 25, no. 1 (1985): 30–43, http://www.jstor.org/stable/44371235. 19 John R. Logan, Deirdre Oakley, and Jacob Stowell, “School Segregation in Metropolitan Regions, 1970–2000: The Impacts of Policy Choices on Public Education,” American Journal of Sociology 113, no. 6 (2008): 1611-1644, https://www.jstor.org/stable/10.1086/587150. 18 Nikole Hannah-Jones, “Choosing A School for My Daughter In A Segregated City,” in Rereading America (New York Times, June 9, 2016), 155.
in an American city. However, this population influx led to further segregation. As more Black people moved, they were moving to segregated neighborhoods with few daring to move to predominantly white neighborhoods. Black Americans were lynched and threatened for the new integration that took place, leaving Black families in fear of coexisting with white communities.21 This expansion of Black residents led to white flight. White families left Birmingham, causing a majority of suburbs to be increasingly segregated. Although this segregation between new Black residents and preexisting white residents took place generations ago, the effects are still visible in Birmingham today. As illustrated in the image above, the white and Black population of Birmingham are nearly split along a border. 22 With blue dots representing Black residents and the red representing white residents, there is a pronounced division amongst the two. While these two examples remain decades apart, it makes an evident statement of the lack of change that came from the Civil Rights Act. In the forty-six years that passed between the initial findings and the updated survey from 2016, Birmingham maintains its reputation as highly segregated. Black Americans in Birmingham, and other cities alike, were not protected from the remainder of systemic racism that once segregated them. 22 Aaron Williams and Armand Emamdjomeh, “America is More Diverse Than Ever — But Still Segregated,” The Washington Post, May 10, 2018, https://www.washingtonpost.com/graphics/2018/national/segregation-us-cities/. 21 Bobby Wilson, “RACIAL SEGREGATION TRENDS IN BIRMINGHAM, ALABAMA,” Southeastern Geographer 25, no. 1 (1985): 30–43, http://www.jstor.org/stable/44371235.
History of Voting The lack of integration led to voter suppression. Voting rights have long been seen as essential to civil rights. For years, voting rights were only seen as essential to white, landowning men. Although, in the years following the emancipation of enslaved peoples, others were granted the right to vote. As seen in the Fifteenth Amendment, Black men were granted the right to vote.23 However, this came with a multitude of restrictions. Black men, not women, were allowed to vote. Black land-owning men could vote, and later Black men whose grandfather was allowed to vote could vote. Numerous limitations were placed on voting rights, but none directly stated that they only applied to Black voters. For instance, those who wished to vote simply had to pass a literacy test. Seemingly simple enough, these tests had a direct impact on Black votes. White, specifically wealthy, men were able to pass with ease. However, these were not the candidates given the tests; rather, it was up to officials’ discretion to decide who needed to complete a literacy test. These tests required takers to answer each question correctly and do so in a short amount of time. Black voters were more likely to lack an education comparable to that of a wealthy white man, leaving them with higher rates of failure. Literacy tests, however, were not the only discriminatory practice to prevent Black Americans from voting. The Grandfather Clause “said you could not vote unless your grandfather had voted -- an impossibility for most people whose ancestors were slaves.”24 Yet, these policies merely pointed to be directed at Black voters. Although the appearance of such tests was neutral in the eyes of the state, there was an apparent hidden agenda. With fewer Black citizens voting, the less representation there would be in the government. This representation did not necessarily mean Black politicians but those who 24 Library of Congress, “Voting Rights for African Americans,” Library of Congress, accessed November 27, 2022, https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-african-americans/#:~:text=Until %20the%20Supreme%20Court%20struck,people%20who%20 ancestors%20where%20 slaves. 23 Library of Congress, “Voting Rights for African Americans,” Library of Congress, accessed November 27, 2022, https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-african-americans/#:~:text=Until %20the%20Supreme%20Court%20struck,people%20who%20 ancestors%20where%20 slaves.
were fighting to protect the rights and uplift the voices of Black Americans. Akin to literacy tests and the grandfather clause, redistricting and gerrymandering attempted to minimize the Black vote. While the Civil Rights Act of 1964 sought to protect Black Americans from any form of discrimination, outlawing the previous tactics used to take away Black votes, it did not protect from loopholes in the law. With thirty-four states currently requiring government ID when voting, Black Americans are disproportionately affected. Millions of Black Americans, roughly twenty five percent of Black Americans of voting age, lack government issued identification.25 This is compared to the eight percent of white Americans that lack government issued identification.26 Despite the work the Civil Rights Act of 1964 was intended to do, Black Americans are still fighting for their right to vote. Although not nearly as obvious, Black voters are targeted. With redistricting and voter ID laws, Black Americans are often stripped of their right to vote. Shelby County v. Holder: The History and Where it Led In 2013, the United States Supreme Court saw the case Shelby County v. Holder, granting states greater sovereignty in changing voter requirements.27 States found themselves with the power to purge voters, gerrymander, and create stricter voter identification laws. While Black voters, along with other voters of color, are intended to be protected in their voting, Shelby v. Holder (2013) is a modern-day attack on Black voters. States are given the opportunity to prevent groups of voters from voting and taking part in democracy. After the decision, a multitude of states, specifically conservative states, began to create stricter voter requirements. 27 Jeffrey Nowacki, Danielle Creech, and Megan Parks, “Political Climate, Voter Suppression Policies and Federal Sentencing Outcomes,” British Journal of Criminology 60, no. 5 (2020): 1155-1180, 10.1093/bjc/azaa017. 26 ACLU, “OPPOSE VOTER ID LEGISLATION - FACT SHEET,” ACLU, 2021, https://www.aclu.org/fact-sheet/oppose-voter-id-legislation-fact-sheet. 25 ACLU, “OPPOSE VOTER ID LEGISLATION - FACT SHEET,” ACLU, 2021, https://www.aclu.org/fact-sheet/oppose-voter-id-legislation-fact-sheet.
Texas enforced a strict photo identification law after the decision. Prior to Shelby County v. Holder (2013) decision, Texas was denied the ability to put SB 14 into law; this was largely due to the fact that it would discriminate against the Black population in the state.28 However, under the new ruling, Texas was able to put this law into place. Similarly, during the 2020 presidential election, the negative effects of this case were seen across the nation. During this monumental presidential election, an abundance of states saw an increase in voter suppression. This took place in numerous forms, ranging from voter intimidation to purges. Infamously, Ohio purged thousands of voters.29 Purging consists of removing the names of voters in situations where they become ineligible to vote (i.e. death, moving, felony etc.).30 In Ohio, like in the majority of other states that took part in large-scale voter purging, the majority of voters affected were Black voters.31 Moreover, Ohio maintains ‘the use it or lose it’ policy, which removes voter registration from those who have not voted in two federal elections in a row. With the Black community having lower voter turnout rates compared to white Americans, voter purging is an obvious attempt at stripping away voting rights from Black Americans.32 Redistricting After Shelby County v. Holder Black Americans, due to redistricting, see their voting efforts go to waste as they are left with a lack of representation in government; consequently, policies do not reflect their needs nor wants. The Civil Rights Act of 1964 was not enough to guarantee equal voting rights nor protect 32 Kevin Morris and Coryn Grange, “Large Racial Turnout Gap Persisted in 2020 Election,” Brennan Center for Justice, August 6, 2021, https://www.brennancenter.org/our-work/analysis-opinion/large-racial-turnout-gap-persisted-2020-election. 31 Will Wilder, “Voter Suppression in 2020,” Brennan Center Center for Justice, August 20, 2021, https://www.brennancenter.org/our-work/research-reports/voter-suppression-2020. 30 Brennan Center for Justice, “Voter Purges,” Brennan Center for Justice, accessed November 28, 2022 https://www.brennancenter.org/issues/ensure-every-american-can-vote/vote-suppression/voter-purges. 29 Will Wilder, “Voter Suppression in 2020,” Brennan Center Center for Justice, August 20, 2021, https://www.brennancenter.org/our-work/research-reports/voter-suppression-2020. 28 Brennan Center for Justice, “The Effects of Shelby County v. Holder,” Brennan Center for Justice, August 06, 2018, https://www.brennancenter.org/our-work/policy-solutions/effects-shelby-county-v-holder.