The importance of Citizens United

So much to blog about and so little time. The first topic I’ve wanted to blog about recently but haven’t had time is the Supreme Court’s decision in the Citizens United v. Federal Election Commission case. As Matt Welch from Reason Magazine explained it:

Citizens United, a conservative 501(c)(4) nonprofit that has funded a dozen political documentaries over the years, produced a critical documentary about Hillary Clinton in 2008 entitled “Hillary: The Movie.” By a decision of the federal government, which was enforcing the Bipartisan Campaign Reform Act (known more broadly as McCain-Feingold), this piece of political speech was banned from television.

Let’s boil it down to the essential words: Political documentary, banned, government.

When considering only the narrow facts of the case, it is hard to see how the Supreme Court could have upheld the ban on a political documentary funded by a private non-profit group simply because it advocated against a particular political candidate. As numerous commentators have pointed out, political speech ought to be the most protected form of speech, not the least.

But the Supreme Court didn’t have to go all the way and say that banning corporations from engaging in speech was unconstitutional, they only needed to rule narrowly in favor of Citizens United and not overturn previous decisions that allowed the government to ban certain types of political speech (sometimes referred to using the derogatory term ‘electioneering communications’). To do so would have required sustaining some very tortured logic which might go something like this:

  • Individuals have the right to free speech, including spending their own money on political advertisements, or spending their own money on financing their own campaign for political office.
  • Individuals, however, do not have the right to contribute as much as they want to someone else’s campaign, they may only contribute an amount that the government decides is appropriate.
  • When one or more individuals form a corporation, they lose the right to pay for either political advertisements or to contribute to political campaigns, except through strange organizations called political action committees.
    • Except when the corporation is a “media” corporation, e.g. The New York Times Company or Disney or Time Warner, in which case the corporation may advocate without limits for any political candidate or issue.
    • And except if that corporation is a non-profit or is not a really big and evil corporation like ExxonMobil, a firm which everyone agrees should never be allowed to make any political speech whatsoever.
  • When individuals form a corporation or union, they may spend as much as they want on political advocacy as long as they don’t mention any political candidates’ names.

Such was the logic of campaign finance before Citizens United was decided. The bullet in red would have been necessary to add to this argument in order to decide in favor of Citizens United while still preserving the right to censor some corporations. Of course, as Ilya Shapiro of the Cato Institute observed, individuals don’t lose their rights when they form corporations. An astute observer will note that Citizens United only rectifies the discrepancy in the third bullet listed above. Political contributions are still severely restricted by the government. All of this in the name of “clean” elections. Take note of the contribution limits defined by the FEC for 2009-2010:

Surely one can see that the more restrictions we try to make on political contributions, the more we simply shift the money into darker corners where it is harder to trace who is influencing whom. Does anyone believe that the Bipartisan Campaign Finance Reform Act of 2002, aka McCain-Feingold, having been in effect for 8 years, actually succeeded in its goal of “taking money out of politics“?

An interesting debate on the Citizens United case between Nick Gillespie of and Lawrence Lessig of Harvard University was recently shown on the Bill Moyers show on PBS. Both Gillespie and Lessig agree that the real problem is not political advocacy by corporations or political contributions but the fact that so much money is spent on trying to persuade Congress to act in favor of this interest or the other, an act known as “lobbying”.

Professor Lessig’s solution to this is to create what he calls “fair elections” which would be financed by the government (see the website here). But as noble as the idea of “fair elections” sounds, doesn’t it seem wrong that government gets to decide who can run in elections and who can’t? If you think that is not how “fair elections” work, then how is it decided who can run?

Let’s take an example. I think I might like to run for Governor of Colorado some day. How about I run during the next election cycle? “But how do you expect to raise the money to do that?” you might ask. Balderdash, I say, it is not “fair” that I need to have money to run for elected office. I demand my right to public money to finance my gubernatorial election. “Wait a minute”, you say, “You’ve never had any experience running for political office.” Well neither had Ronald Reagan or Arnold Schwarzenegger when they ran for Governor of California or Ross Perot when he received 19% of the vote in the 1992 presidential election. What is more “fair”: that I raise enough money to prove that I have some popular support and that I am in fact a serious candidate, or that I get money from the government simply because I’d like to be Governor. So you see, it’s not that easy to take money out of politics. And if you accept the idea that spending money is a form of speech (if I want to “speak” to all the readers of the Wall Street Journal via a full-page advertisement, I certainly have to spend money to do so), then we ought to let the speech and the money run free.

One final thought on free speech. Milton Friedman once wrote that the wisdom of the First Amendment is that it treats all forms of speech as a “bundle”. In his case, he was arguing in favor of constitutional restrictions on what the government may do in terms of economic policy. But his example of the First Amendment is very compelling:

Many specific restrictions on freedom of speech would be approved by a substantial majority of both legislators and voters. A majority would very likely favor preventing Nazis, Seventh Day Adventists, Jehovah’s Witnesses, the Ku Klux Klan, vegetarisns, or almost any other little group you might name from speaking on a street corner. The wisdom of the First Amendment is that it treats these cases as a bundle. It adopts the general principle that “Congress shall make no law … abridging the freedom of speech”; no consideration of each case on its merits.

And so we should, in the case of political speech and more specifically in campaign finance, resist the temptation to judge each individual case on its merits but adopt the general principle that the government ought not to be allowed in any case to dictate who can speak, either through literal “speech” or indirectly through spending money on political contributions. Let the citizens and voters of the country hear all of the voices and decide for themselves who is to be believed and who isn’t.