Spring 2010Vol. 5, No. 1

This article is from TOS Vol. 5, No. 1. The full contents of the issue are listed here.

Citizens United and the Battle
for Free Speech in America

The Supreme Court’s recent decision in Citizens United v. FEC is one of the most important First Amendment decisions in a generation and one of the most controversial. In it, the Supreme Court struck down a law that banned corporations from spending their own money on speech that advocated the election or defeat of candidates. In the process, the Court overturned portions of McConnell v. FEC, a case in which the Supreme Court, a mere six years ago, upheld McCain-Feingold, one of the most sweeping restrictions on campaign speech in history.

Gavel

In many ways, Citizens United is a ringing endorsement of First Amendment rights, and it is certainly cause for optimism about the future of free speech. But the divisions on the Supreme Court over the case and the reactions from Democrats in Congress, the media, and the left in general indicate that Citizens United will not be the last word on the matter.

In this respect, the controversy is not surprising: Citizens United dealt a serious blow to the further growth of campaign finance laws, supporters of which are determined and outspoken. But the controversy is shocking from the standpoint of the law at issue: It prevented a nonprofit group from distributing a film that criticized a candidate, Hillary Clinton, during her run for the presidency in 2008. During oral arguments in the case, the government admitted campaign finance laws could be applied to prevent corporations from publishing and distributing not only films but also books that said the wrong things during election cycles.

Banning films and books?

The First Amendment states: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Those simple and elegant words would seem to leave no room for a law, passed by Congress, that prevents corporations from spending money to distribute films and books. So, how did we get here?

The answer is that as important as the First Amendment is to America, few Americans have grasped its actual meaning. The amendment properly protects each individual’s inviolable right to freedom of speech—regardless of whether anyone’s exercise of that right serves a “social purpose.” But over time, and especially in the 20th century, the First Amendment came to be viewed by most intellectuals, and by the Supreme Court, in almost exclusively instrumentalist terms.1 Its primary purpose, on the instrumentalist view, is to facilitate the collective “search for truth” allegedly necessary to support “representative self government.”2 In other words, freedom of speech serves not the goals of individuals but those of “society.”

Intellectuals, courts, and commentators have debated which particular “social goals” the First Amendment should serve, but few in the 20th century have disagreed that the First Amendment’s purpose is primarily instrumental. Seen this way, the First Amendment is effectively a blank slate. And in the early and mid-20th century, so-called “progressives” were happy to write their goals onto it.

Led by intellectuals such as John Dewey and Herbert Croly, the progressives actively opposed the limited, constitutional government established by America’s founders.3 Progressives held that the individual’s highest moral purpose is to serve the “greater good” of society. They opposed private property and capitalism, sought to redistribute wealth, and believed that inequalities among citizens justified overriding constitutional limits on government action.4 Because businesses and the wealthy often lobbied and campaigned against the progressives’ efforts, the progressives championed early restrictions on lobbying and campaign spending.

Speech, they said, should be protected only to the extent that it serves the “public interest”—which, in their conception, did not include the interests of businesses and the wealthy.5 The progressives pejoratively dubbed the interests of businesses and the wealthy “special interests”—interests contrary to the “public interest”—and held that the First Amendment did not protect speech in the service of such interests.6

In the modern era, the progressive who most influenced campaign finance laws was John Gardner, the founder of Common Cause.7 Gardner shared the early progressives’ disdain for “special interests,” which he believed were thwarting the progressives’ agenda by using money to influence the political process. “All citizens should have equal access to decisionmaking processes of government, but money makes some citizens more equal than others,”8 Gardner argued. “It isn’t just that money talks. It talks louder and longer and drowns out the citizen’s hoarse whisper.”9 Gardner and Common Cause were instrumental in crafting and passing the first modern campaign finance reform law in the early 1970s,10 which set the tone for much of what would follow.

So-called progressives today employ the language established by Gardner, claiming that those who can afford to spend more money to influence the course of government—by, for instance, convincing voters to support or oppose certain politicians—are “more equal” than others. To reduce that inequality, they insist, the government must restrict spending that produces unequal speech. As law professor Owen Fiss puts it, the government “may even have to silence the voices of some in order to hear the voices of others. Sometimes there is simply no other way.”11

This egalitarian view of speech is patently contrary to the First Amendment’s protection of the individual’s right to freedom of speech. Egalitarians ignore the obvious fact that individuals are necessarily unequal: Some have more money than others, some are more articulate than others, some are louder and more persistent than others (among countless other differences). If people are left free to speak as they wish—and to pay for the means to do so—some individuals and groups will have a greater impact on elections and thus the policies and actions of government than others. In short, freedom of speech and equality of speech are opposites.

This is the battle at the heart of campaign finance laws. On one side is the view, held (albeit imperfectly) by most challengers of such laws, that the First Amendment protects an individual right to freedom of speech. On the other is the view, held by advocates of campaign finance laws, that the First Amendment protects speech only insofar as it serves, or at least does not thwart, equality of influence over the political process. In the middle is the Supreme Court, which has wavered between these poles, but, unfortunately, has all too often sided with the egalitarians.

The Supreme Court’s decision in Citizens United, the latest skirmish in this battle, was a substantial victory for the individual rights interpretation of the First Amendment. To understand the significance of this ruling, we must begin by surveying the most relevant history of campaign finance laws. Then we will turn to the Citizens United decision itself, the controversy it ignited, and what the Court’s ruling means for freedom of speech and the future.

Compromising Freedom of Speech: Buckley v. Valeo

The federal government has intermittently regulated various aspects of campaign financing since the early 20th century. Dissatisfied with this patchwork of laws, Congress, in the early 1970s, sought to establish a comprehensive regulatory scheme for all aspects of campaign financing. The result was the Federal Election Campaign Act (FECA), which was first passed in 1971 and substantially revised and strengthened following the Watergate scandals.12 Like most campaign finance laws, although FECA was very complex, its basic structure was relatively simple. It regulated the money going into campaigns (contributions); it regulated the money coming out of campaigns (expenditures); and it required all of this to be reported to the government (disclosure).13 Recognizing that individuals and groups could benefit candidates indirectly, the drafters of FECA extended its reach to so-called “independent expenditures,” which are amounts spent by people on their own, independent of a candidate, to promote him or attack his opponent.14

Leaving aside the philosophical premises on which the law was based, FECA posed an immediate practical problem. How do you control the money going into campaigns?

Consider the seemingly simple matter of limiting the contributions individuals make to candidates. FECA allows individuals to contribute no more than $2,400 per year to a given candidate. But what counts as a contribution? Obviously, direct monetary donations count, but what about gifts of goods or services? If cash counts as a contribution, then something cash can buy—office equipment, computers, consulting services, or advertising—must count as well, otherwise donors could easily skirt the laws by donating such goods. If people are prevented from helping candidates they support in one way, they will try others.

Consequently, once enacted, laws such as FECA, which aim to regulate financial support for political campaigns, must continually expand as individuals inevitably find ways around them. Faced with a ban on large direct contributions to candidates, individuals will donate money to political parties. Cut off that option, and they will spend their money on their own speech—perhaps purchasing television or radio ads—that supports the candidate. Prevent them from buying broadcast ads, and they will purchase print ads. Block that avenue, and they will use direct mail, the Internet, or some other means. This is the very phenomenon that led the drafters of FECA to include a restriction on independent expenditures: They anticipated people’s efforts to skirt the spirit of the law by circumventing the letter of the law.

Free-market thinkers have long understood that laws expand in this manner. Regulation begets regulation, either because it creates dislocations in the marketplace that need to be remedied by more regulation or because the subjects of the regulation find ways around the law. Inevitably, the regulators react by closing the loopholes.

Thus, given the existence of campaign finance laws, we have two alternatives: Allow the laws to expand inexorably until they regulate everything that could benefit a candidate or influence an election, or eliminate the laws entirely.

In 1976, faced with these alternatives, the Supreme Court chose a third option: compromise.

The case was Buckley v. Valeo,15 the first modern campaign finance case and the one that established the constitutional framework within which all campaign finance cases are analyzed to this day. The challengers in Buckley contended that FECA’s limits on contributions and expenditures violated the First Amendment. They reasoned, quite sensibly, that to speak to a large audience requires the expenditure of large amounts of money. That money must come from somewhere. Any limit on the source of those funds or on the ability to spend them will necessarily limit the speech that the providers of those funds aim to produce.16

The Supreme Court accepted half of this argument, striking down limits on expenditures but upholding limits on contributions. Expenditure limits, the Court reasoned, were tantamount to telling someone he could drive as far as he wanted, as long as he did so on one tank of gasoline.17 Such limits restricted the overall amount of speech a candidate could produce, and were thus direct infringements on his freedom of speech.18

Contribution limits were a different matter, however. A limit on contributions, according to the Court, did not significantly restrict speech because the speaker could simply raise funds from a larger number of contributors. Although this obviously limited the amounts that individual contributors could donate to a candidate, that was not, as the Court saw it, a significant infringement of First Amendment rights because the contributor was not attempting to speak himself; rather, he was funding the candidate’s speech, and the candidate remained free to speak.19

Moreover, according to the Court, the government had presented a very good reason to limit contributions: the prevention of quid pro quo corruption. If donors were permitted to give large amounts of money to candidates, the reasoning went, candidates might be tempted to provide special favors in return. And even if no such corruption actually occurred, large contributions to candidates might appear corrupt to the public.20 For the Court, both of these rationales were compelling enough to justify what it viewed as a minor infringement on the freedom of speech.

As for FECA’s limits on independent expenditures—money individuals spent on their own speech advocating the election or defeat of candidates—the government presented two arguments. First, the government claimed that independent expenditures can lead to quid pro quo corruption just as direct contributions can. For example, if a person buys an advertisement supporting a candidate, it can certainly benefit the candidate in a way that might lead to reciprocation. Second, echoing the progressives, the government argued that limiting independent spending would make elections more “democratic,” by equalizing all voices.21

The problem for the government, however, was that the Court saw its position as a direct attack on political speech and the rights of citizens to advocate the election or defeat of candidates. Despite the Buckley Court’s support for limits on contributions, it was unwilling to uphold a law that so clearly and directly prohibited political speech.22 The Court rejected both of the government’s rationales for limiting independent expenditures and struck down these limits.

Regarding the potential for quid pro quo corruption, the Court held that independent expenditures were less likely to lead to corruption, because, under the law, such expenditures had to be truly independent—that is, they could not be coordinated with a candidate’s campaign. Thus, according to the Court, the benefits to candidates from independent expenditures would be substantially attenuated.23 As for the egalitarian “fairness” rationale, the Court, in what has become one of its most oft-cited passages, said,

The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible distribution of information from diverse and antagonistic sources and to assure the interchange of ideas for the bringing about of social changes desired by the people.24

Like so much of the Buckley decision, this statement was both promising and frustrating. On this view of the First Amendment, freedom of speech is protected not as an inalienable right of the individual, but as a means to serve a broader “public good”—“the bringing about of social changes desired by the people.” Thus, although the Court made the right decision, it did so for the wrong reason.

Despite some high points, the Court’s decision in Buckley entailed flawed premises and compromised principles that would lead to further infringements on the freedom of speech. Three aspects of the ruling guaranteed this: First, the Court’s distinction between contributions and independent expenditures was impossible to maintain over the long term because both can benefit candidates and thus arguably lead to a quid pro quo. Second, although the Court rejected the egalitarian rationale for campaign finance restrictions, the rationale it accepted—the possibility of quid pro quo—was vague. Third, the Court’s instrumentalist interpretation of the First Amendment left room for restrictions where speech was believed not to further the “public interest.” This was a recipe for disaster.

The Wall Street Journal presciently described Buckley as having created a “half-dead monster” that is “awfully hard to kill, and the more you wound it, the more havoc it will wreak.”25 To see how this monster terrorized free speech for years to come, we need to work in one more piece of the campaign finance puzzle: the treatment of corporate speech.

Silencing Corporate Speech

Since the early 20th century, federal law has severely restricted corporate spending on political speech, first banning direct corporate contributions to candidates and then banning corporate independent expenditures for electoral advocacy. Supporters of the bans have argued both that corporations are artificial persons without First Amendment rights, and that the bans are necessary to promote equality of influence in elections.26 Another motivation for such bans, however, is the supporters’ desire to silence those with whom they disagree.

For example, the first federal ban on corporate political contributions was the Tillman Act of 1907, named after its chief supporter, segregationist Ben Tillman. Tillman, a Democrat, despised Republican Teddy Roosevelt, who had received a great deal of corporate support during his run for the presidency in 1904.27 And corporations had opposed Tillman’s segregationist policies, which required them to pay for two sets of railcars, drinking fountains, and bathrooms and prevented them from using inexpensive black labor that Tillman wanted to keep out of the labor force.28

For more than half a century, the Tillman Act and other such laws (both federal and state) treated corporations differently from individuals, allowing individuals to contribute to candidates and spend money on independent electoral advocacy but banning corporations from doing so. In the 1970s, Congress incorporated these bans into FECA. But it was not until 1990, in Austin v. Michigan Chamber of Commerce, that the Supreme Court directly considered whether the government may ban corporations from spending money on their own independent speech about candidates during elections.29

At issue in Austin was a Michigan law that, like federal law, prohibited corporations from making independent expenditures. The law prevented the Michigan Chamber of Commerce, a corporation, from publishing an ad in a local newspaper that supported a candidate for the State House of Representatives. Relying on Buckley, the Court of Appeals struck down the law as a violation of the First Amendment.30 When the case reached the Supreme Court, it seemed a sure win for the Chamber of Commerce. Under what possible rationale could the state prevent a corporation from doing what Buckley held individuals had a right to do—spend their own money on their own political speech? But the majority in Austin found a rationale: the same rationale on which the Court relied in Buckley to uphold contribution limits: the possibility of “corruption.”

In Buckley, the Court had defined the corruption in question as the political quid pro quo—an exchange of campaign contributions for political favors. It concluded that avoiding even the “appearance” of such exchanges was sufficient grounds for limiting contributions.31 But the Court never defined the corruption it had in mind any more clearly than this. Corruption, according to the Court, was something less than bribery but more than the effort to influence the actions or judgment of politicians.32 The Court recognized that in a representative form of government, constituents must be permitted to influence politicians’ judgment and their actions, but it felt that at some point that influence went “too far.” Thus, small contributions would be permissible but not large ones. John Doe would be free to send up to $2,400 to his candidate of choice, but Steve Forbes would not be permitted to bankroll Jack Kemp’s run for president. George Soros, however, would be free to spend millions on independent ads supporting his favorite candidate.

The Supreme Court’s notion of “corruption” provided no clear, principled reason for why some of these things were permissible and others were not. The so-called progressives were only too happy to exploit this weakness.

Progressives had always believed that any effort by “special interests” to influence the views or actions of politicians—whether through lobbying, campaign contributions, or simply supporting them with independent speech—would lead to unequal influence and was therefore inherently corrupt. Although in Buckley the Court had rejected the more openly egalitarian rationale for limiting campaign financing, its vague notion of “corruption”—which accepted the progressives’ basic premise that something was improper about people spending money to support candidates for office—left the back door open for the egalitarian rationale in the future. In Austin, the chickens came home to roost.

Reflecting previous decisions in which the Court had hinted that corporations may be treated differently than individuals, the majority in Austin argued that corporations get the benefit of certain “state-created advantages,” such as limited liability and perpetual life, and that these advantages “not only allow corporations to play a dominant role in the Nation’s economy, but also permit them to use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace.”33 On this basis, the Court in Austin specified a “new” form of corruption: “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”34

The Court noted that in Buckley it had rejected limits on independent expenditures, but explained that this was because it had concluded that independent expenditures were less likely than direct contributions to cause corruption, not because such expenditures could not in principle create concerns about corruption.35 In Austin, the Court simply expanded its previous notion of corruption from “too much” influence over an officeholder’s judgment to “too much” influence over the election process as a whole. As the Court put it in Austin, “Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.”36

In 1973, John Gardner formulated the egalitarian mantra that money made some interests “more equal” than others and threatened to give certain “special interests” disproportionate influence over the political process by “drown[ing] out” the voices of ordinary citizens. Roughly twenty years later, this mantra was substantially accepted by the Supreme Court.

Austin set a precedent that virtually guaranteed the steady growth of campaign finance laws at the expense of political speech. The Supreme Court had held, in essence, that the greater one’s resources, the greater the constitutional justification for regulating one’s ability to affect politics and the outcome of elections. The protections the Court had extended to political speech in Buckley were looking less and less justified every day. If an individual may make only small donations directly to a candidate, and if a corporation may not make any donations or independent expenditures at all, why should individuals be permitted to spend unlimited amounts advocating the election or defeat of a candidate?

Austin also highlighted the tension in another distinction the Supreme Court had created in Buckley: “express advocacy” versus “issue advocacy.”

A full explanation of why the Court created this distinction in Buckley is beyond the scope of this article. Suffice it to say that the Court was attempting to cabin the reach of the very broad and often vague provisions of FECA. In essence, the Court in Buckley held that the campaign finance laws could apply only to money spent for speech that advocated the election or defeat of candidates using express terms such as “vote for Smith” or the like. The idea, again, was to balance the alleged need for some limits on campaign financing with the right to freedom of speech. Although the government would be permitted to regulate express advocacy in many circumstances, it was not permitted to regulate so-called “issue advocacy,” which was speech that did not use express words such as “vote for” or “vote against.”37

After Austin, this distinction became especially important to corporations, because although Austin prohibited them from spending money on express advocacy, it left them free to spend money on issue advocacy.

Predictably, that is what corporations did. Individuals, whether acting independently or organized as corporations, do not stop wanting to affect the outcome of elections or to influence the direction of their government just because five justices on the Supreme Court conclude that they should do so more “fairly.” Prevented from running ads that said “vote against Smith,” many corporations simply spent their money on ads that said “Smith supports bad policies.”

Just as predictably, politicians and others who supported campaign finance laws began to complain. The Supreme Court had said in Austin that corporations cannot use their wealth to influence elections, but, according to these complaints, corporations were able to do so after Austin by means of issue advocacy rather than express advocacy. This loophole, argued supporters of the laws, enables “special interest” money to corrupt officeholders and tilt the playing field in favor of the wealthy. If we are to eliminate corruption in politics, they concluded, this and other loopholes must be closed.

Twelve years after Austin, they got their wish.

McCain-Feingold: Cashing in on Buckley’s Compromise

In 2002, Congress passed the Bipartisan Campaign Reform Act, more popularly known as McCain-Feingold.38 According to Senator John McCain, one of the bill’s chief sponsors, the bill was “about curbing the influence of special interests.”39 For many supporters of campaign finance laws, McCain-Feingold was the culmination of decades of work. In Buckley, the Supreme Court had rejected a central pillar of FECA—its restrictions on both campaign and independent spending. As a result, according to proponents of the laws, “special interests” were still able to funnel unregulated or “soft” money into the campaign finance system. The point of the new law, as McCain put it, was “to stop the use of soft money as a means of buying influence and access with Federal officeholders and candidates.”40 McCain-Feingold accomplished its goal primarily by closing what were seen as two loopholes in the campaign finance laws: First, the ability of individuals to make unlimited contributions to political parties so long as the money was not given directly to candidates; and second, the ability of corporations to spend their money on independent “issue advocacy”—that is, on ads that advocate issues or policies without using words of express advocacy such as “vote for” or “vote against.”41

McCain-Feingold dealt with the former by creating a series of new limits on contributions to political parties. It dealt with the latter by creating a new category of restricted speech known as “electioneering communications.” An electioneering communication is a broadcast communication—such as a television or radio ad—that mentions a candidate within thirty days of a primary or sixty days of a general election.42 Although issue advocacy does not involve the use of language that expressly advocates the election or defeat of candidates, it does typically refer to candidates by name. Corporations and other groups that had been engaging in issue advocacy also typically used television or radio ads close to an election, because that was the most effective way to reach voters at a time when they were deciding which way to vote. The obvious solution, according to McCain and his allies, was to prevent them from spending money on ads that mentioned a candidate at all. As McCain succinctly put it:

If you cut off the soft money, you’re going to see a lot less [attack advertising]. Prohibit unions and corporations [from spending money on independent ads] and you will see a lot less of that. If you demand full disclosure for those that pay for those ads, you’re going to see a lot less of that. . . .43

In March 2002, President Bush signed McCain-Feingold into law. It was immediately challenged in court as a violation of the First Amendment. Most observers, including, reportedly, President Bush himself, thought the Supreme Court would strike down the law. In December 2003, however, the Court, in a 5–4 decision, upheld every major provision of the law, including the ban on electioneering communications.

Supporters of campaign finance laws were ecstatic. Their dream of a law that corrected problems they believed had existed since Buckley had come true. The decision, McConnell v. FEC,44 was widely regarded at the time to be the most important campaign finance decision since Buckley. And, indeed, to uphold a law that regulated political speech more extensively than any law Congress had passed to date, the Court had to break new constitutional ground. It did so primarily by developing a new rationale for upholding campaign finance laws under the First Amendment.

In Buckley, the Court held that the only justification for laws limiting campaign financing was the potential for the “corruption” of politicians. In Austin, the Court expanded the justification beyond the corruption of candidates to include the “corruption” of the electoral process that allegedly results when corporations are able to spend more on electoral advocacy than others. In McConnell, the Court went still further, deciding the government could limit campaign financing to prevent individuals and corporations from circumventinglaws that were designed to prevent such corruption.45

This was entirely logical given the premises of campaign finance law. Buckley implicitly conceded something was wrong with people using money to support candidates or advocate policies. The Court’s reasons—inherent in its view of “corruption”—were vague, but there was no mistaking the conclusion that campaign financing is, in some sense, illegitimate. In Austin, that implicit premise was made more explicit in the Court’s adoption of an egalitarian rationale for limiting corporate spending, which allowed even more limits than Buckley had approved. However, those seeking to influence elections were still finding entirely legal ways around the laws. Thus, according to those opposed to such influence, if the goal is to prevent money from infecting politics, the government must be given the constitutional authority to close loopholes as they arise.

Following this logic, the Court in McConnell simply observed that many groups were able to use issue advocacy to influence the outcome of elections, and whether or not these groups used words of express advocacy, voters were getting the message. The Court thus concluded that issue advocacy was a “sham”—just another way to achieve the same goals as express advocacy, only less open and honest, and it upheld the electioneering communications ban.46

On one level, the implications of the Court’s holding in McConnell are astounding. Corporations had been expressing themselves through issue advocacy because the Supreme Court had permitted the government to regulate express advocacy, allegedly on the grounds that express advocacy was not protected by the First Amendment but issue advocacy was. In other words, corporations were doing what the Supreme Court had said the First Amendment expressly protected their right to do. Yet here was the Supreme Court in McConnell holding that the government could now ban a form of issue advocacy—electioneering communications—precisely because corporations were using it in accordance with that right.

On another level, McConnell’s holding was entirely predictable. As Ayn Rand observed: “In any conflict between two men (or two groups) who hold the same basic principles, it is the more consistent one who wins.”47 The Court had long accepted the basic principles underlying campaign finance laws. On the instrumentalist interpretation of the First Amendment, freedom of speech is not an individual right, but, rather, as Supreme Court Justice Stephen Breyer puts it, a means to “encourage the exchange of information and ideas necessary for citizens themselves to shape that public opinion which is the final source of government in a democratic state” and to maintain a government “open to participation . . . by all citizens, without exception.”48 And on the egalitarian view of the First Amendment, the state should, quoting Justice Breyer again, “seek to democratize [i.e., equalize] the influence that money can bring to bear upon the electoral process.”49 The only way to equalize people’s ability to speak is to outlaw the means by which some can speak more readily than others. That is what the government, with the blessing of the Court, has proceeded to do.

Citizens United: Freeing Speech

By the 2008 elections, the previous three decades of modern campaign finance law had spawned a complex web of statutes, regulations, and court decisions that rival the Internal Revenue Code in their complexity. The Federal Election Commission has produced 568 pages of regulations, 1,278 pages of explanations and justifications for those rules, and 1,771 pages of advisory opinions that offer the agencies’ views on particular applications of the law. The laws have created 71 distinct types of regulated entities that are subject to separate rules for 33 different types of political speech. To implement one recent Supreme Court decision that had tried to draw a line between express advocacy and issue advocacy in certain circumstances, the FEC adopted a two-part, eleven-factor balancing test, the outcome of which determined whether one was allowed to speak or faced fines and possibly time in jail.50

During the 2008 presidential election cycle, Citizens United, a nonprofit corporation dedicated to “conservative” causes, attempted to navigate this web of regulations and speak its mind about one of the candidates. It produced a one-hour film, Hillary: The Movie, which was highly critical of Mrs. Clinton as a person and as a candidate for high office. The group wanted to distribute the film through on-demand cable television during the 2008 primary season. However, the electioneering communications ban covered cable television along with other types of broadcasts, so Citizens United could not distribute its film at any time within thirty days of a primary or sixty days of a general election. And, given the frequency of presidential primaries, it would be prohibited from distributing its film for virtually the entire year preceding the general election. Citizens United sued the FEC, claiming that the law violated its First Amendment right to freedom of speech.51

When Citizens United v. FEC reached the Supreme Court, most observers thought the Court would rule relatively narrowly. Chief Justice John Roberts was generally regarded as a “judicial minimalist” who placed great importance on precedent and Congress’s authority and who favored narrow rulings over broad pronouncements. Justice Samuel Alito, also relatively new to the Court, was a less-known commodity, but both he and Justice Roberts had voted to create a narrow exemption to the electioneering communications ban in an earlier case rather than to rule the entire law unconstitutional. But the Court surprised practically everyone: Its decision went far beyond what anyone had expected early in the case.

Perhaps fed up with the mind-numbing complexity of the campaign finance laws, perhaps concerned by the fact that they were now being used to prevent the distribution of a film, perhaps shocked by the government’s admission that the laws could also apply to the publication of books, five justices in Citizens United acted to repair some of the damage that had been done to the First Amendment.

Ruling that individuals may not be deprived of freedom of speech simply because they adopt the corporate form, the Court struck down the electioneering communications ban in its entirety. Along with it went the portion of McConnell that had upheld the ban as well as the entire Austin decision, which had provided the constitutional justification for regulating corporate independent expenditures in the first place. In reversing these cases, the Court effectively tossed out speech-squelching laws that had been on the books in one form or another since 1947.

The Court recognized the stranglehold that campaign finance laws had applied to political speech, likening the byzantine laws to a prior restraint on speech.52 It said such complex laws, the necessity of hiring lawyers to interpret them, and the lawsuits to which they lead inevitably chill free speech.53 The Court implicitly criticized its own prior decisions, saying “Courts, too, are bound by the First Amendment” and “must decline to draw, and then redraw constitutional lines” that determine who may speak and who may not.54 The Court noted that the FEC’s “business is to censor speech” and warned against the incremental destruction of speech that results from authorizing bureaucrats to decide how and when we may speak.55 And it demonstrated that the ban on corporate electoral advocacy would ultimately mean regulation of books, newspapers, the Internet, and all forms of expression.56

Citizens United is one of the most sweeping endorsements of First Amendment rights and their crucial place in our constitutional republic the Supreme Court has ever issued. Echoing James Madison’s view of free speech as “the right of freely examining public characters and measures . . . which has ever been justly deemed, the only effectual guardian of every other right,”57 the Court said, “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”58 “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”59

The Court in Citizens United, however, understood the freedom of speech to be more than a means to public ends; it saw this freedom also as an individual right: “The First Amendment confirms the freedom to think for ourselves”60 and “it protects speech and speaker, and the ideas that flow from each.”61 If people say things others would rather not hear, said the Court, that is not the government’s concern: “it is our law and our tradition that more speech, not less, is the governing rule.”62

On the core question of whether the ban on corporate spending for independent electoral advocacy violated the First Amendment, Citizens United is a model of principled jurisprudence and common sense. The Court recognized that speaking out in today’s world often requires large expenditures of money, so a ban on corporate independent expenditures amounts to an outright ban on speech.

The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons and entities are hostile to their interests.63

The Court recognized that corporations are associations of individuals, and individuals do not lose their First Amendment rights simply because they decide to join with other individuals under a particular organizational form, whether corporate or otherwise.64

As to the justifications for the law, the Court rejected Austin’s view that corporations have an unfair advantage in elections as inconsistent not only with Buckley, but also with one of the framers’ key insights. Special interests—or “factions” in the framers’ words—would no doubt form from time to time and try to influence the course of government. But for the Court, as for the founders, limiting freedom of speech would be like eliminating air to prevent fire. Quoting The Federalist No. 10, the Court said, “Factions will necessarily form in our Republic, but the remedy of ‘destroying the liberty’ of some factions is ‘worse than the disease.’ . . . Factions should be checked by permitting them all to speak . . . and by entrusting the people to judge what is true and what is false.”65

The Court also rejected the claim that independent expenditures cause corruption. “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”66 After all, the Court recognized, representative government necessarily means that citizens are entitled to try to influence what their representatives do: “The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.”67 Summing up, the Court stated: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”68

Citizens United is an astoundingly good decision, especially when compared to the decisions preceding it. It is not just a good campaign finance decision; it is one of the best First Amendment decisions the Supreme Court has ever issued.

But it is not without its flaws.

Most notably, in this regard, the Court maintained the basic framework for analyzing campaign finance laws established in Buckley, according to which the government may limit campaign financing, and thus the speech it produces, by showing that its limits serve the purpose of preventing quid pro quo corruption. More fundamentally, by failing to reject the instrumentalist interpretation of the First Ammendment, the Court failed to challenge the idea that the First Amendment means anything other than what it says: “Congress shall make no law . . . abridging the freedom of speech, or of the press” (emphasis added).

Thus, although the Court emphasized, perhaps more than in any other decision, the fact that the First Amendment protects an individual right, the instrumentalist approach to the amendment remains part of the law. Indeed, as indicated by the caustic reaction to this decision from the left, Citizens United has not settled the debate over the individualist vs. instrumentalist interpretation.

Critics have called the decision an example of unbridled judicial activism that will corrupt elections and destroy “democracy.” According to Democratic Senator Charles Schumer, “The Supreme Court has just predetermined the winners of next November’s election. It won’t be the Republicans or the Democrats and it won’t be the American people; it will be Corporate America.”69 President Obama, in his State of the Union address, accused the Court of reversing “a century of law that . . . will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”70 The New York Times—a corporation whose very existence as a source of news explicitly depends on the First Amendment—complained that the decision improperly extended First Amendment rights to corporations.71 MSNBC commentator Keith Olbermann compared the decision to Dred Scott, a case in which the Supreme Court held that an escaped slave must be returned to the slave owner.72

What explains this near hysteria over Citizens United?

Has the left suddenly become concerned with “judicial activism”? Not likely. The Court has overturned precedent before, most notably in Brown v. Board of Education,73 in which it overturned Plessy v. Ferguson’s doctrine of separate but equal, and in Lawrence v. Texas,74 in which it overturned Bowers v. Hardwick in the process of striking down antisodomy laws. Somehow, the critics of Citizens United have managed to remain silent about these instances of “activism.”75

Perhaps critics are concerned about extending First Amendment protections to corporations, which are alleged to be only “artificial persons” and mere creatures of the state. However, as the Court itself noted in Citizens United, it has treated corporations the same as individuals under the First Amendment for at least half a century. The media, in particular, have benefited from these rulings without ever noticing that the Court was protecting the rights of corporations. And critics of Citizens United complain about spending in campaigns regardless of whether it is by corporations, other groups, or individuals.76

Clearly, the outrage over Citizens United has little to do with the nature of corporations or “judicial activism.” Instead, it represents a fundamental philosophical dispute about the nature and meaning of the First Amendment and its role not only in elections but in our entire system of government. So-called progressives, who are the primary champions of campaign finance laws, oppose individual rights, capitalism, and the constitutional system that protects or makes these values possible; thus they want to expand the size and scope of government. Freedom of speech—especially when combined with wealth that enables people and corporations to speak their minds effectively—stands in their way.

It is no accident that campaign finance laws often prevent those most able to oppose the growth of government from speaking out. Early progressives sought to limit the influence of corporations because corporations often opposed the progressive agenda of regulations, wealth redistribution, and the like.77 John Gardner, the father of the modern campaign finance reform movement, equated congressional corruption with the failure to enact such “progressive” policies.78 And in recent times, many proponents of McCain-Feingold have expended far more effort policing “attack ads” than any quid pro quo corruption on the part of politicians.79

Citizens United is a truly radical decision, in that it returns to the constitutional principle that the government must protect and not violate freedom of speech. Unfortunately, because few people understand the moral foundation of free speech—namely, the principle that each individual morally must be left free to speak his own mind for his own sake because each individual morally should act on his own judgment for his own sake—freedom of speech remains not only vulnerable but in severe danger. Until the First Amendment is interpreted in a manner consistent with the purpose of government envisioned by the founders—that is, to protect the rights of individuals to act on their own judgment regardless of what others think or feel about it—the battle over free speech will continue.

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Endnotes

Acknowledgment: The author would like to thank Craig Biddle for his helpful edits and suggestions on this article.

1 Calvin R. Massey, “The Influence of the Foundational Paradigms of Individualism, Pluralism, and Cultural Authoritarianism upon Freedom of Expression,” in Speaking Freely: The Case Against Speech Codes, edited by Henry Mark Holzer (Studio City, CA: Second Thoughts Books, 1994), pp. 46–60.

2 Massey, “Foundational Paradigms,” pp. 46–60.

3 John Samples, The Fallacy of Campaign Finance Reform (Chicago: University of Chicago Press, 2006), pp. 43–48; Richard A. Epstein, How Progressives Rewrote the Constitution (Washington, D.C.: Cato Institute, 2006), pp. 7–9.

4 Samples, Fallacy of Reform, pp. 43–48, 55; Epstein, How Progressives Rewrote the Constitution, pp. 7–8.

5 Samples, Fallacy of Reform, p. 55; Epstein, How Progressives Rewrote the Constitution, pp. 7–8.

6 Samples, Fallacy of Reform, pp. 50, 54–55.

7 Samples, Fallacy of Reform, pp. 59–64.

8 John Gardner, In Common Cause: Citizen Action and How it Works, quoted in Samples, Fallacy of Reform, p. 62.

9 Samples, Fallacy of Reform, p. 62.

10 John Gardner: Uncommon American, available at http://www.pbs.org/johngardner/chapters/6.html.

11 Owen Fiss, The Irony of Free Speech (Cambridge, MA: Harvard University Press, 1996), p. 4 (emphasis added).

12 Anthony Corrado et al., The New Campaign Finance Sourcebook (Washington, D.C.: Brookings Institution Press, 2005), pp. 20–22.

13 Corrado et al., Campaign Finance Sourcebook, pp. 21–23.

14 Corrado et al., Campaign Finance Sourcebook, p. 23.

15 Buckley v. Valeo, 424 U.S. 1 (1976) (emphasis added).

16 Buckley, 424 U.S. at 11.

17 Buckley, 424 U.S. at 19 n. 18.

18 Buckley, 424 U.S. at 19.

19 Buckley, 424 U.S. at 20–22.

20 Buckley, 424 U.S. at 26–29.

21 Buckley, 424 U.S. at 48–49.

22 Buckley, 424 U.S. at 47–48.

23 Buckley, 424 U.S. at 45–47.

24 Buckley, 424 U.S. at 48–49.

25 “The Half-Dead Monster,” Wall Street Journal, February 2, 1976.

26 Samples, Fallacy of Reform, p. 45.

27 Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance Reform (Princeton: Princeton University Press 2001), p. 23.

28 Bradley Smith, “The Myth of Campaign Finance Reform,” National Affairs, no. 2, Winter 2010. Like the federal bans on corporate campaign spending, state bans were also motivated in part by a desire to prevent political outcomes corporations supported. See Smith, Unfree Speech, p. 23.

29 Austin v. Michigan Chamber of Commerce, 494 U.S. 660 (1990).

30 Austin, 494 U.S. at 656.

31 Buckley, 424 U.S. at 26–27.

32 Buckley, 424 U.S. at 27–28. See also Nixon v. Shrink Mo. Gov’t Pac, 528 U.S. 377, 389 (2000).

33 Austin, 494 U.S. at 658 (internal citations and quotation marks omitted).

34 Austin, 494 U.S. at 661.

35 Austin, 494 U.S. at 659.

36 Austin, 494 U.S. at 660.

37 Buckley, 424 U.S. at 42–44.

38 Corrado et al., Campaign Finance Sourcebook, pp. 37–39.

39 Samples, Fallacy of Reform, p. 3.

40 Samples, Fallacy of Reform, p. 3.

41 Corrado et al., Campaign Finance Sourcebook, pp. 37–39.

42 Corrado et al., Campaign Finance Sourcebook, p. 42.

43 Senator John McCain, 107th Cong., 1st Sess., Congressional Record (2001), 147:S3116.

44 McConnell v. FEC, 540 U.S. 93 (2003).

45 McConnell v. FEC, 540 U.S. at 136–137, 143–145.

46 McConnell v. FEC, 540 U.S. at 193–194.

47 Ayn Rand, “The Anatomy of Compromise,” in Capitalism: The Unknown Ideal (New York: Signet, 1967), p. 145.

48 Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Alfred A. Knopf, 2005), p. 47 (internal quotation marks omitted).

49 Breyer, Active Liberty, p. 47.

50 Citizens United, slip op. at 18.

51 Citizens United, slip op. at 2–4.

52 Citizens United, slip op. at 18.

53 Citizens United, slip op. at 7, 19.

54 Citizens United, slip op. at 9–10.

55 Citizens United, slip op. at 18.

56 Citizens United, slip op. at 33, 35–37.

57 James Madison, “Virginia Resolutions Against the Alien and Sedition Acts,” (December 21, 1798), reprinted in James Madison Writings (Jack N. Rakove, ed., 1999), p. 590.

58 Citizens United, slip op. at 23.

59 Citizens United, slip op. at 23.

60 Citizens United, slip op. at 40.

61 Citizens United, slip op. at 23.

62 Citizens United, slip op. at 45.

63 Citizens United, slip op. at 38 (internal citations and quotation marks omitted).

64 Citizens United, slip op. at 25–28.

65 Citizens United, slip op. at 39.

66 Citizens United, slip op. at 43.

67 Citizens United, slip op. at 44.

68 Citizens United, slip op. at 33.

69 GOP Doesn’t Run 2010 Census, But Hopes to Count Your Money,” Post Standard (Syracuse, NY), January 24, 2010, p. A9.

70 President Barack Obama, State of the Union Address, January 27, 2010.

71 The Court’s Blow to Democracy,” New York Times, January 21, 2010.

72 Countdown with Keith Olbermann (MSNBC television broadcast January 21, 2010), available at http://www.msnbc.msn.com/id/3036677/ns/msnbc_tv-countdown_with_keith_olbermann#34984984.

73 Brown v. Bd. of Education, 347 U.S. 483 (1952).

74 Lawrence v. Texas, 539 U.S. 558 (2003).

75 Indeed, many of Citizens United’s harshest critics—including Justice Stevens, who wrote the dissent—have long advocated overturning the portions of Buckley that rejected limits on independent expenditures. See Randall v. Sorrell, 126 S.Ct. 2479, 2506 (2006) (Stevens, J., dissenting). These critics can hardly complain about the majority overturning campaign finance decisions when they wish to do the same to achieve precisely the opposite result.

76 Brief for the Federal Election Commission, p. 43, SpeechNow.org v. FEC, No. 09-5342 (D.C. Cir. Dec. 15, 2009).

77 Smith, Unfree Speech, p. 23; Myth of Campaign Finance Reform.

78 Samples, Fallacy of Reform, pp. 62–63.

79 Samples, Fallacy of Reform, pp. 3–7, 36.