As Democrats headed for what promised to be a midterm election fiasco of historic proportions, a pre-emptive excuse began to circulate: It was all the Supreme Court’s fault. In an August Washington Post column, Katrina vanden Heuvel, editor of The Nation, said Citizens United v. Federal Election Commission, the January decision in which the Court overturned restrictions on political speech by corporations, had created a “very alarming” situation in which democracy (not to mention Democrats) would be swept away by “a flood of corporate campaign cash” because “there is no way private citizens can match the resources available to corporations to make their voices heard.” In a radio address around the same time, President Barack Obama dreaded “a flood of attack ads run by shadowy groups with harmless-sounding names,” unleashed by a ruling that “allows big corporations to spend unlimited amounts of money to influence our elections.”
In September a front-page New York Times story seemed to confirm these antediluvian prophecies. The paper reported that “outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television.” The Times worried that “a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going.” It said “Democratic officials” believed “corporate interests, newly emboldened by regulatory changes,” were trying to “buy the election.” In short, the spending patterns seemed to be “a fulfillment of Democrats’ worst fears after the Supreme Court’s ruling in the Citizens United case.”
Except that, as the Times conceded in the next paragraph, “it is not clear…whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm.” Other factors—“notably, a political environment that favors Republicans”—might be at work. In fact, the spending cited in the story was mostly by rich individuals or by groups organized under Section 527 of the Internal Revenue Code, both of which were legal before Citizens United.
An October story in The Washington Post likewise suggested that Citizens United helped explain the Republicans’ spending lead but was hazy as to how. “The outside group spending is primarily being driven by the political climate,” a campaign finance expert told the Post. “Organized groups are looking at great opportunity, and therefore there’s great interest to spend money to influence the election.”
When you get beyond the scaremongering about deluges of dollars, the practical consequences of Citizens United so far seem to be much less dramatic than its critics predicted. But how could they not be? “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation,” Justice John Paul Stevens warned in his dissent. “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” The New York Times said the “radical” and “disastrous” decision “strikes at the heart of democracy.” Rep. Alan Grayson (D-Fla.) said Citizens United was “the worst Supreme Court decision since Dred Scott,” because “it leads us all down the road to serfdom.”
President Obama managed to outdo them all, declaring that he “can’t think of anything more devastating to the public interest.” To Obama, apparently, the prospect of a less restricted political debate was more horrifying than an economic collapse, a military coup, or a nuclear war. Although it’s too early to predict exactly what will happen as a result of Citizens United, it seems safe to say that plenty of things are more harmful to the public interest. Among them are laws that seek to silence some so that others may be heard.
Everything Is Incorporated
The over-the-top reactions to Citizens United reflect a view of corporations as giant, soulless automatons that are fine for producing goods and services in a regulated environment but bound to wreak havoc if let loose in the halls of political power. That view obscures the fact that corporations, no matter how large or profit-driven, are by definition associations of individuals who have joined together for a common purpose. It also misleadingly suggests that behemoths such as Wal-Mart and Exxon Mobil are typical corporations, when in fact the vast majority of the 6 million or so corporations registered in the United States are small businesses or nonprofits.
“In 2010 almost everything is incorporated,” notes Allison Hayward, a former George Mason University law professor who recently became vice president of policy at the Center for Competitive Politics, which favors deregulation of political speech. “Anything you want to do as a group with other people—apart from the context where partnerships might work, like practicing law—you’re going to do through a corporate form of some kind.” Civil society, including churches, charitable organizations, and grassroots political groups of every interest and ideology, consists largely of corporations.
For an illustration, one need look no further than the case the Supreme Court decided. Citizens United, founded by the conservative activist Floyd Brown in 1988, is not a huge corporation seeking subsidies or permission to pollute. It is a nonprofit, ideological organization with an annual budget of $12 million that wanted to run a documentary about Hillary Clinton on pay-per-view TV. It was forbidden to do so, under threat of fine and imprisonment, because a) Clinton was running for the Democratic presidential nomination, and b) the documentary made her look bad. The movie therefore violated the Bipartisan Campaign Reform Act of 2002, a.k.a. McCain-Feingold, which banned “electioneering communications,” defined as TV or radio ads sponsored by unions or corporations that mention a candidate for federal office within 30 days of a primary or 60 days of a general election.
Contrary to all the rhetoric about corporations drowning out the voice of the people, corporations are the voice of the people—people who pool their resources because they hate Hillary Clinton, love the rainforest, worry about the national debt, support gay marriage, think abortion is murder, oppose gun control, or even believe that corporations have too much influence on politics. McCain-Feingold told these groups they were not allowed to talk about their issues close to an election if the discussion happened to mention any politicians running for federal office.
The ban on electioneering communications was supposed to strengthen a pre-existing ban on spending by unions or corporations “in connection with” a federal election. That prohibition, originally imposed by Congress in 1947, was incorporated into the Federal Election Campaign Act (FECA) of 1971, which Congress amended in 1974 following the Watergate scandal to impose new restrictions on contributions and spending, require detailed recordkeeping and reporting by political committees, and create the Federal Election Commission (FEC) to oversee the new regulatory system.
In the 1974 case Buckley v. Valeo, the Supreme Court upheld FECA’s limits on campaign contributions (such as the ceiling on how much you can give a particular candidate during one election cycle) but overturned its limits on spending by candidates and independent spending by individuals and groups, which it said “place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.” The Court did not directly address the ban on election-related expenditures by unions and corporations. But to avoid unconstitutional vagueness, it ruled that the election-related speech covered by the law should be limited to “express advocacy”—messages explicitly advocating a candidate’s election or defeat. According to a footnote in the decision, that meant “communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’ ” This definition, as interpreted by lower courts and the FEC during the next two decades, gave rise to “issue ads,” the target of the McCain-Feingold ban on electioneering communications.
The Unbearable Cacophony
Issue ads, which became especially conspicuous in the mid-1990s, avoided express advocacy by eschewing the “magic words” that the Supreme Court had identified as forbidden. Many of them nevertheless managed to communicate an opinion about the merits of electing particular candidates. A 1997 report by the University of Pennsylvania’s Annenberg Public Policy Center estimated that political parties, labor unions, and interest groups spent about $150 million on issue ads during the 1996 campaign, compared to about $400 million in advertising by the candidates themselves.
Issue ads typically faulted candidates for taking the wrong positions in debates important to the sponsoring groups. The AFL-CIO would run radio ads noting that a given congressman “voted with Newt Gingrich to cut college loans, while giving tax breaks to the wealthy” and urging listeners to “tell him his priorities are wrong.” A radio ad sponsored by Americans for Limited Terms charged Sen. John Warner (R-Va.) with “defying the will of the people of Virginia and America” by opposing term limits. Handgun Control Inc. criticized members of Congress for voting against the federal “assault weapon” ban, while the American Legion’s Citizens Flag Alliance criticized them for voting against the Flag Protection Amendment.
“Parties and advocacy groups spent more than a third as much as did the candidates themselves communicating with the public during the 1996 election,” the Annenberg Center noted. “This is unprecedented, and represents an important change in the culture of campaigns. Candidates now share the election megaphone with a cacophony of other voices.”
Many politicians were not inclined to share, finding the cacophony unbearable. “This bill is about slowing the ad war,” Sen. Maria Cantwell (D-Wash.) said in 2002, explaining her support for McCain-Feingold. “It is about calling sham issue ads what they really are. It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves.”
The provision covering electioneering communications was introduced by Sen. Paul Wellstone (D-Minn.), who argued that without it McCain-Feingold’s ban on “soft money” contributions to political parties (unregulated donations ostensibly earmarked for general party-building efforts) would be easily evaded. Sen. John McCain (R-Ariz.) and the bill’s other chief sponsor, Sen. Russell Feingold (D-Wis.), initially resisted the Wellstone amendment because they worried the provision would be overturned by the Supreme Court. President George W. Bush had similar concerns but signed the bill anyway.
At first the fears about McCain-Feingold’s legal vulnerability seemed overblown. In the 2003 case McConnell v. Federal Election Commission, the Supreme Court rejected a First Amendment challenge to the law, citing as precedent Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld a law preventing corporations from running ads in support of candidates for state office. According to Austin, such restrictions were justified by the need to guard against “the corrosive and distorting effects of immense aggregations of wealth” that “have little or no correlation to the public’s support for the corporation’s political ideas.”
But four years after McConnell, the Court ruled that the ban on electioneering communications was unconstitutional when applied to “genuine issue ads.” That case, FEC v. Wisconsin Right to Life, involved radio and TV spots in which an anti-abortion group encouraged voters to contact the state’s two senators and ask them to oppose filibusters of judicial nominations. The group wanted to continue airing the ads through the 2004 election but feared running afoul of McCain-Feingold. The case prompted the Court to narrow the reach of the ban on electioneering communications so that it applied only to express advocacy or its “functional equivalent,” meaning an ad “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
This new rule was narrower but vaguer than the one it replaced, which covered any ad mentioning a candidate close to an election. It was also vaguer than the much-ridiculed “magic words” definition, which the Court had adopted in Buckley to avoid ambiguity that would chill constitutionally protected speech. After Wisconsin Right to Life, interest groups had to guess whether the FEC would consider their messages the “functional equivalent” of express advocacy, based on a two-part, 11-factor balancing test developed by the commission to implement the new standard. If they guessed wrong, they could face fines or even prison.
‘That’s Pretty Incredible’
This was the legal environment Citizens United confronted in January 2008, when it released Hillary: The Movie. The group had planned to make the documentary available on pay-per-view cable and to promote it with TV ads. Wary of possible civil and criminal penalties, it asked a federal judge to declare that the First Amendment protected its right to distribute and advertise the movie, notwithstanding the ban on electioneering communications. Citizens United was literally asking for permission to speak freely. The court said no, agreeing with the FEC that Hillary: The Movie should be banned from TV during election season precisely because voters might consider it relevant.
Hillary: The Movie is not subtle. It depicts Clinton, whose picture is frequently accompanied by ominous background music, as a lying, conniving, vindictive, venal, scandal-plagued, power-hungry, Constitution-flouting “European socialist” unqualified to be president. “The movie, in essence, is a feature-length negative advertisement that urges viewers to vote against Senator Clinton for President,” Justice Anthony Kennedy wrote for the majority in Citizens United.
Unlike Wisconsin Right to Life’s issue ads, the Court concluded, Hillary: The Movie was the functional equivalent of express advocacy. Because it was so one-sided and unrelentingly negative, the majority said, it was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The upshot was that Citizens United could not legally put Hillary: The Movie on TV while its subject was running for president, although it could have presented a more flattering (but not too flattering!) documentary about her without running afoul of the law. Furthermore, because both the ban on electioneering communications and the ban on express advocacy included an exemption for media corporations, a news outlet such as CNN or Fox News could have produced and presented Hillary: The Movie without fear of prosecution. This confusing state of affairs was hard to reconcile with a constitutional amendment that says “Congress shall make no law…abridging the freedom of speech.”
Confronted with these facts, the Court could have created a new loophole designed for speech resembling Hillary: The Movie. It could have said the ban on electioneering communications did not apply to full-length movies or that it did not cover pay-per-view TV. It could have declared Citizens United a media corporation. But any such solution would have raised new questions, compounding the uncertainty that encourages self-censorship. “The FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests,” Kennedy wrote in Citizens United. “If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question.…This is an unprecedented governmental intervention into the realm of speech.”
Yet the Obama administration had argued that Congress could go even further if it chose. During oral arguments in March 2009, Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart whether the Constitution would allow Congress to ban material like Hillary: The Movie not just on radio or TV but in other media as well, such as DVDs, the Internet, and books. Stewart said yes, noting that the ban on express advocacy was not limited to radio and TV. “That’s pretty incredible,” Alito replied. He then pressed Stewart to say whether a book containing express advocacy could be banned if it were published by a corporation (as books typically are). After much hemming and hawing, Stewart again said yes. He did note that the ban on express advocacy made an exception for media corporations such as book publishers, without committing himself on whether such an exception was constitutionally required.
Justice Antonin Scalia did a double take: “I’m a little disoriented here, Mr. Stewart. We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press? That’s what we’re interpreting here?”
The discussion of book bans was a turning point in the case. By exposing the breadth of the censorship power claimed by the government, it spurred the justices to schedule a highly unusual second round of oral arguments to consider whether Austin should be overturned. The ultimate result was a 5-to-4 decision that overturned the rule against express advocacy as well as the ban on electioneering communications.
‘Nobody Uses Books to Campaign’
During the second round of oral arguments in September 2009, then-Solicitor General Elena Kagan tried to avoid Malcolm Stewart’s mistake of claiming the power to ban books. “The government’s answer has changed,” she said to laughter when Justice Ruth Bader Ginsburg brought up the subject. Although the express advocacy ban “does cover full-length books,” Kagan said, “there would be a quite good as-applied challenge to any attempt to apply [it] in that context” because (as she explained during her Supreme Court confirmation hearings last summer) “nobody uses books in order to campaign”—a surprising assertion, given all the biographies, manifestos, and policy books that candidates and their supporters have produced over the years. Kagan added that the FEC so far had not tried to ban any books. That reassurance prompted Chief Justice John Roberts to object that “we don’t put our First Amendment rights in the hands of FEC bureaucrats.”
If books might be out of bounds, Roberts asked, “what about a pamphlet?” Kagan said “a pamphlet would be different,” since “a pamphlet is pretty classic electioneering.” This newly invented constitutional distinction between books and pamphlets raised new questions. “When does a pamphlet become a book?” asks former FEC Chairman Brad Smith, co-founder of the Center for Competitive Politics. “Is Thomas Paine’s Common Sense, which is about 50 pages, a pamphlet or a book? How could you decide?” During Kagan’s confirmation hearings in June, Sen. Orrin Hatch (R-Utah) asked her whether she really believed that “the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page.”
Kagan faced another problem in making her case to the Supreme Court. While the rationale for the donation limits upheld in Buckley was preventing official corruption, the rationale for the spending ban upheld in Austin was preventing corporations from using their “immense aggregations of wealth” to skew the political debate. But bans on corporate speech apply to small businesses and nonprofit organizations that are far from wealthy, while rich individuals are free to spend all the money they want on whatever messages they choose. Furthermore, the Court generally has looked askance at the notion that the government should try to keep the political debate properly balanced, given all the subjective judgments such a task requires. In a 1996 law review article, Kagan deemed it well established that “the government may not restrict the speech of some to enhance the speech of others.” She called this “the Buckley principle,” the reason why the Court had rejected spending limits in that case.
That understanding of First Amendment law helps explain why Kagan ditched Austin’s anti-distortion rationale in Citizens United, instead arguing that restrictions on corporate speech are necessary to protect dissenting shareholders and to prevent the corruption that might result if politicians feel grateful for helpful independent expenditures. This strategy caused Chief Justice Roberts to remark that “you are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted in the expenditure context.” The Court ultimately rejected both arguments, stating categorically that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
A ‘Marionette Congress’
That conclusion strikes critics of the decision as disingenuous or naive. “Corporations, particularly rogue corporations, are going to be able to use fear of expenditures to get incumbent congressmen to toe the line,” says Bob Edgar, a former Pennsylvania congressman who heads the pro-regulation group Common Cause. “A corporation could come in and say, ‘We didn’t like the way you voted on health care that first time around. If you don’t change your vote on public option or on single payer, we’re going to invest X number of dollars to make sure that we recycle you.’ ”
Although an explicit quid pro quo of this sort could be prosecuted as extortion, bribery, or honest services fraud, Edgar says “all they have to do is walk in and imply that they’re going to do it; the proof of illegality would be very difficult.” Brad Smith suggests a legislator could neutralize such threats and simultaneously score points with voters by going public: “What candidate is not going to want to come out and say, ‘These guys from Halliburton threatened me, but I stood up to them?’ ” Edgar laughs at the notion, saying, “You tell me how many congressmen would do that.”
Lawrence Lessig, the Harvard law professor who co-founded Change Congress in 2008 to reduce the influence of money in politics, likewise argues that Citizens United allows companies to get their way through subtle threats that will never be a matter of public record. “Nobody has to disclose a threat,” he says. “Nobody has to disclose this kind of indirect influence.” Lessig imagines such threats “creating this marionette Congress” where “the game becomes how to dance in the right way to make sure that the corporations are entering the campaign in the way you want them to.”
But which way is that? Given the public’s anxieties about excessive corporate influence, couldn’t favorable ads sponsored by big companies be a liability rather than an asset? Lessig has anticipated that objection. “Why not just allow anyone to speak, and measure a candidate by the company he keeps?” he wrote in The New Republic in March. “If Exxon is spending $10,000,000 to support a candidate, won’t the voters of the district recognize that…and vote against the candidate because of that fact alone? Yet it is here that the Court’s practical insight into the ways of politics is most strained. If Exxon wants candidate X to win, but recognizes that a $10,000,000 expenditure by it would be toxic for candidate X, then why wouldn’t [it] spend the $10,000,000 on candidate Y?” By this logic, corporations emboldened by Citizens United will get legislators to vote their way by threatening to run ads praising them and calling for their re-election.
There are several reasons to think Lessig’s fears are overwrought. First, reformers insisted that “sham issue ads” had made a joke out of the ban on independent expenditures by unions and corporations. According to the arguments they used to pass McCain-Feingold in 2002, we should be no worse off now than we were before the law took effect.
Second, even before Citizens United, most states allowed unlimited corporate spending in state races. Lessig concedes “there’s no good evidence” public officials in those states are any more corrupt than public officials in states that restrict corporate spending, although he argues that the danger is more acute on Capitol Hill because there is more influence to peddle.
Third, the data on campaign contributions do not suggest that corporations are eager to spend more money to influence politicians by influencing elections. Most businesses do not bother to make campaign contributions at all, and when they do they typically stay well below the legal limits. Even among Fortune 500 companies, only 60 percent have political action committees, and they usually do not pay PAC overhead from their general treasuries (as they are legally permitted to do), a practice that could effectively double the money available for donations.
“The bureaucratic Fortune 500 companies have very little interest in spending a lot more money” on political campaigns, says Brad Smith. “They’d much rather spend their money lobbying. They think it’s more effective. It doesn’t upset their customers. It doesn’t upset dissenting shareholders.” Smith thinks it’s more likely that smaller businesses, the ones that never had PACs, will now test the campaign-spending waters, on their own or through trade associations.
The recent controversy over Target’s $150,000 contribution to MN Forward, a Minnesota organization that favors tax and spending cuts, illustrates the risks that companies run by getting involved in elections, even indirectly. In August, Target’s CEO publicly apologized for the donation, which had provoked loud complaints from gay rights activists, customers, employees, and shareholders because MN Forward was running ads in support of a Republican gubernatorial candidate who opposes gay marriage.
Allison Hayward of the Center for Competitive Politics notes that unions do not have to worry about this sort of backlash. “I think unions will make much better use of Citizens United than corporations will,” she says. “Unions are political by nature. A union is an organization of people bound together to get something out of somebody else. There’s nobody to offend.” In fact, as Mother Jones reporter Suzy Khimm pointed out in June, unions were the first organizations to take advantage of Citizens United, running express advocacy ads during primary campaigns in Arkansas and Pennsylvania. In a listing of the biggest independent spenders compiled by the Center for Responsive Politics in September, unions were three of the top five; the other two were the anti-abortion Susan B. Anthony List and the Democratic Congressional Campaign Committee.
The Deterrent Effect
Critics of Citizens United did not wait for the prophesied flood of corporate spending to materialize before proposing remedies to it. One idea is to expand public funding of political campaigns. Bob Edgar and Lawrence Lessig both support the Fair Elections Now Act, which would give taxpayer money to House and Senate candidates who collect a certain number of signatures and raise a certain amount of money in small contributions. Participating candidates would agree to spending limits, but participation would be voluntary, as required by Buckley. And unlike Arizona’s campaign finance system, which faces a First Amendment challenge that is now before the Supreme Court, the law would not give candidates additional money based on how much their opponents spend.
The idea is to let candidates run viable campaigns without depending on corporate support. As Lessig put it in a Web video recorded the day the Citizens United ruling was released, “We need a political system where people can trust that decisions Congress makes are decisions based on the merits, on what makes sense, or what the people in their district want, and not what the funders demand.”
The first thing to note about the Fair Elections Now Act as a response to independent spending is that it does nothing about independent spending. Businesses and interest groups would still be free to spend all they wanted on ads supporting or opposing candidates. “It doesn’t make any sense at all as a response to Citizens United,” says Hayward. Furthermore, the idea that Congress can restore taxpayers’ faith in it by forcing them to subsidize politicians they despise is counterintuitive, to say the least.
Hayward, who recently reviewed the relevant government reports and academic studies for a friend-of-the-court brief supporting the challenge to Arizona’s campaign subsidies, found little evidence that public funding provides measurable benefits. It “doesn’t necessarily make for better candidates or less corruption,” she says. “You don’t see any sort of payback in terms of better government or less partisanship or a more responsive legislature.”
Smith has a deeper objection. “There should be essentially a judicial doctrine of separation of campaign and state, just like we have a doctrine of separation of church and state,” he says. “You fundamentally alter the relationship between the governed and the governors when you say to the ruling people, ‘You don’t have to go back to these folks to get your money. We’ll just keep supplying you in perpetuity, and you can vote yourself bigger subsidies to run your campaigns.’ ”
While the Fair Elections Now Act was introduced before Citizens United, the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act was crafted by Sen. Charles Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) as a response to the ruling. Under the guise of transparency, the bill, which was approved by the House in June but narrowly blocked by Republicans in the Senate a month later, would deter speech through onerous regulatory requirements. The stand-by-your-ad statements mandated by the bill could consume half of a 30-second TV spot, while a requirement that nonprofit interest groups disclose even those donors who do not give money for ads could make people think twice before supporting political organizations.
Perhaps the most outrageous aspect of the legislation (which Smith’s Center for Competitive Politics dubbed the Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections Act) is its bias in favor of organizations that tend to favor Democrats. The DISCLOSE Act would bar independent spending by corporations that have 20 percent or more foreign ownership but leave the speech of international labor unions unrestricted. It would censor companies with government contracts but not labor unions that represent public employees or nonprofits that receive government grants.
The bill’s backers did throw one traditionally Republican lobby a bone. To win approval in the House, they exempted the National Rifle Association from the new reporting requirements. When this loophole prompted a public outcry, it was expanded to include any national nonprofit organization with more than 500,000 members that is at least 10 years old. Thus a measure that was supposedly aimed at curbing the influence of powerful, well-established interest groups was skewed to favor powerful, well-established interest groups.
The bill’s supporters were transparent in at least one respect: They admitted their aim was to discourage speech they do not like. Schumer, upon unveiling the bill in April, said “the deterrent effect should not be underestimated.” Opposing an amendment that would have delayed the bill’s implementation until after this year’s elections (so the FEC would have time to issue regulations clarifying its requirements), Rep. Michael Capuano (D-Mass.) said he wanted people to worry about a fine or prison sentence when they dare to speak ill of politicians. “I hope it chills out all—not one side, all sides!” he said during a mark-up session in May. “I have no problem whatsoever keeping everybody out. If I could keep all outside entities out, I would.”
If the DISCLOSE Act is revived and passed after the 2010 elections, it is likely to be overturned by the Supreme Court. Lessig cited that prospect as one reason to oppose what he viewed as a “puny” and “pathetic” response to Citizens United that “squandered” an important opportunity for reform. His favored solution would avoid the constitutional problem in a straightforward way: by changing the Constitution. In March, Lessig proposed the following constitutional amendment: “Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.” Since corporations are not citizens, he explains, this amendment would authorize Congress to reinstate the restrictions imposed by McCain-Feingold.
Lessig, who sees himself as a free speech champion, is remarkably cavalier about his amendment’s practical impact. When I suggest that it would allow Congress to prevent corporate-owned news outlets from discussing elections, he says, “The Free Press Clause should, if properly interpreted, create immunity for those entities from being regulated so long as they’re functioning in a press-like role.” But wouldn’t his amendment override the Free Press Clause? “That’s a good point,” he says, “and it might well be important to make sure that nothing is intended to weaken or to draw into question the immunity granted by the First Amendment to the press. But that’s certainly not my intent.”
Once enacted, of course, the amendment would have to be applied by the courts as written. Assuming there’s a media exemption, they would have to decide when an organization is serving a sufficiently “press-like role” to qualify for it. They would also have to decide when a “limit” on “campaign spending,” which is authorized by the amendment, is so low that it amounts to a “ban,” which is prohibited by the amendment. And depending on how they define “campaign spending,” the amendment could either allow sweeping restrictions on freedom of speech or return us to the situation before McCain-Feingold was enacted, when corporations could say what they wanted as long as they avoided the verboten “magic words.” In that case, the tremendous effort required to ratify a constitutional amendment would come to naught. “There are lots of ways to get this wrong,” Lessig concedes.
Although it is highly improbable that anything like Lessig’s half-baked amendment would ever be ratified, the impulse behind it is worth examining, because it is the impulse behind McCain-Feingold, the DISCLOSE Act, and every other effort to purify politics by curtailing the influence of “special interests.” Lessig says his aim is not to restrict speech but to “restore the integrity of Congress so that we can believe once again in this democracy.” He worries that “most people have a deeply skeptical view about Congress’s independence,” which discourages them from getting involved in the political process. He wants to “restore public trust in government” and “restore the people’s faith in our democracy.” You hear the same rhetoric from other reformers, whether Barack Obama or John McCain.
One problem with this rationale is that it justifies speech restrictions based on the public’s perception of corruption, whether or not the perception is accurate. In this respect it tracks the reasoning of Buckley, which said campaign finance regulations are justified by the need to prevent “the reality or appearance of corruption.” Lessig argues that to some extent the appearance is the reality. “If people believe money is buying results,” he says, “then whether money is buying results or not, that’s going to be enough to staunch the willingness of people to become engaged. I do think perception is a critical factor.” But the upshot is that people like Lessig help establish a legal basis for the restrictions they favor simply by talking about corruption all the time.
Another problem is that restoring public trust in government is not as uncontroversial a proposition as Lessig seems to think. He argues that his cause should attract support from across the political spectrum because everyone has an interest in a properly functioning democracy where citizens are confident that public officials are representing the interests of their constituents. But surely there is such a thing as too much faith in government, and people of different political persuasions are bound to draw that line in different places. Those who think government should be much smaller than it is may not want voters to have any more faith in it than they already do.
Consider how people with different views on this question react to poll numbers that show weak and waning faith in Congress: The same data Lessig sees as proof of a failing democracy are interpreted by others as evidence that voters are wising up. “There’s a problem with the basic idea that people should really trust their government,” says Smith. “Our country was founded on people not trusting their government.”
‘Forget the Voters’
In practice, restricting speech to prevent the appearance of corruption is hard to distinguish from restricting speech to prevent the wrong side from winning a debate. The “improper influence over a candidate’s position or an officeholder’s action” that the Supreme Court cited in Buckley as an appropriate target of campaign regulation very easily shades into an “improper influence” on people’s opinions, especially when it comes to independent expenditures. This was the Austin rationale that the Court rejected in Citizens United: the fear that corporations will use their wealth to “distort” the political debate.
Common Cause, for instance, says “balance on the political playing field” requires closing “the political spending gap between corporations and labor.” When Obama insists that “powerful interests must not be allowed to drown out the voices of ordinary citizens,” it’s clear he is worried about too much speech of the wrong sort. The support for restrictions on corporate speech, Hayward says, is driven largely by the conviction that “corporations are going to be advocating bad things, because corporations are at the root of environmental degradation, the financial meltdown, and all this. There’s a group of people who just know that corporations are on the other side; they’re bad.”
The flaw in this thinking is not just that big companies, despite their size and their commercial motives, may be right about things from time to time. And it’s not just that the groups resisting the agendas of big companies—groups that, depending on the issue, may be demanding regulation or defending the free market—are corporations too. The most important point people overlook when they insist on treating speech like a disastrous deluge is that advocacy has no impact unless it persuades people. As Obama emphasized toward the end of yet another jeremiad against Citizens United in September, “You can make sure that the tens of millions of dollars spent on misleading ads do not drown out your voice. Because no matter how many ads they run—no matter how many elections they try to buy—the power to determine the fate of this country doesn’t lie in their hands. It lies in yours.”
Less than a week after Citizens United, Rep. Donna Edwards (D-Md.) gave a speech on the floor of the House in which she explained why she was introducing a constitutional amendment aimed at reversing the decision. “If the [corporations don’t] like what this congresswoman is doing,” she said, “they’ll just forget the voters, buy TV ads, send robocalls, send a lot of mail, and beat her in November. A law won’t fix this; we have to fix it in the Constitution.” Can corporations really “forget the voters” when the whole point of their TV ads, robocalls, and direct mail is to convince voters that Congress would be a better institution without Donna Edwards?
This may be one of those occasions when the corporations are right. The last thing Congress needs is yet another legislator who equates her own electoral prospects with the fate of the republic, let alone one who wants to amend the Constitution so that it better serves her political career. But even when the arguments for requiring balance in political debate have a less self-interested tinge, there is no escaping the fact that we are discussing the merits of censorship, a debate the Framers thought they had settled. “What these guys are basically saying,” Smith observes, “is ‘we don’t like the First Amendment because we don’t like the speech of particular people.’ Essentially they’re pitting their wisdom against the wisdom of the Founders. The basic idea of the First Amendment was that this is the kind of thing we really don’t trust the government to do.”