Political Campaigns, Free Speech, and the Citizens United Decision

This November’s election was our first real chance to see the effects of the U.S. Supreme Court’s Citizens United decision.  The results are ominous for the future of U.S. politics.  Bucketfuls of money poured into political campaigns, both directly and as unregulated “independent expenditures” from groups such as the U.S. Chamber of Commerce, who are no longer required to even disclose where the money is coming from.  As a result, moneyed special interests are exerting an influence unparalleled since the end of the “gilded age” of the 1880s.

The irony is that the Citizens United decision is based on a fundamental misreading of the First Amendment to the U.S. Constitution.  That amendment states, very simply, that, “Congress shall make no law respecting … …or abridging the freedom of speech … .”  As with all of the provisions of the Bill of Rights, we now have over two hundred years of Supreme Court jurisprudence interpreting that simple phrase.  The U.S. Supreme Court’s decisions have made a sharp distinction between regulating the content of speech and regulating the “time, place, and manner” of speech.  While the former is subject to “strict scrutiny”, requiring that any regulation be narrowly tailored and necessary to address a clear and present danger to a substantial interest of the state, the latter allows regulation so long as it is even-handed (i.e., content-neutral — applying equally to all speech, regardless of what it’s about).

In Buckley v Valeo, the Nixon-era Court, led by Chief Justice Warren Burger, decided that money was equivalent to free speech — i.e., regulating political contributions or expenditures was the same as regulating political speech.  A moment of thought should show the error that opinion created.  Money does not create political speech, hence regulating how much gets donated or spent doesn’t prohibit speech — it just regulates how loud that speech is. 

Just as a city can prohibit sound trucks from blasting political speech (or any other kind), so it would seem that government ought to have the power to limit how much money gets contributed or spent on political campaigns.  However, the complicating factor is that, in order to be content-neutral, such regulation would have to apply to all kinds of speech; not just political speech.  For example, the FCC could promulgate a regulation limiting how much time any one advertiser could buy for on-air commercials in any particular period of time (say, for example, no more than 1% of the broadcast day).  The post office could similarly limit how many pieces of advertising mail could be mailed in any one period.  However, in order not to invoke strict scrutiny, such regulations would have to apply to all kinds of mailings, not just political advertising.  This could be problematic; but, on the other hand, it could greatly cut down on the amount of junk mail and TV and radio ads Americans have to deal with — something that I suspect would delight most people.

The other option would be to identify a justification for content-specific regulation of speech that would survive strict scrutiny.  In the past, the Supreme Court has sometimes accepted preventing corruption or the appearance of corruption as justification for limiting direct campaign contributions, but not campaign expenditure or contributions to non-candidate-based political committees.  Since the Citizens United decision, however, it’s unclear if that will still work.  The court has repeatedly rejected arguments about trying to maintain a “level playing field” for political candidates.  Evidently, the Court feels that fair play has no place in the American political process.

One wonders, however, whether there’s an argument to be made that when one side can effectively drown out the other side’s voice — the equivalent of blasting away with loudspeakers so that other people can’t even be heard — government has a right to step in to protect the free speech right of those being overwhelmed.  Perhaps there needs to be the equivalent of the Sherman Antitrust Act to protect the free market of ideas from being monopolized by one group’s raw monetary power?

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