Home » Uncategorized » Free Speech and Elections: Back to the Drawing Board

Free Speech and Elections: Back to the Drawing Board

From Richmond Times, Thursday, 28 January 2010. Also picked up at Leagle.com here: http://www.leagle.com/unsecure/news.do?feed=yellowbrix&storyid=140608648

The Supreme Court’s ruling in Citizens United v. FEC was remarkable in several respects. The Court announced the decision in a special session in the middle of January. It also overruled several other recent closely divided campaign spending decisions that addressed whether corporations have speech rights and, if they do, whether they may be restricted.

The decision deals with one of the important and enduring tensions in American politics and around the world. On the one hand we want to protect and maximize freedom of speech. On the other hand, we don’t want that freedom to translate into a loophole that lets special interests (especially corporations and others with lots of money) have an unfair advantage in elections. This battle over how to manage this tension has been fought many times in the courts. The corporations won this round. What is important to note, however, is that freedom of speech won as well. But, this may be a costly victory.

The nuances of campaign spending can be arcane. For example, someone was paid to decide that the limit on individual campaign contributions should now be $2,400 per primary or general election cycle. That’s $2,400—not $2,500 or $1,899 or…On the other hand, the nuances can be cast in truly profound terms.

One vitally important theme has characterized all of the Supreme Court’s campaign spending decisions. Beginning with Buckley v. Valeo in 1974 and continuing through Citizens United, the Supreme Court has had to wrestle with a subtle but profound issue: Is it fair (not to mention constitutional) to allow sitting incumbents to dictate the terms on which they campaign for re-election and by which they can constrain their potential challengers? In other words, do campaign spending laws embody a conflict of interest?

From time to time, members of the Court have addressed this issue directly. Perhaps most notably, Justice Scalia pointed out in McConnell v. FEC that the McCain-Feingold Act was nothing short of an incumbent–protection act because it restricted attack ads in the waning weeks of an election. This is a vitally important issue of political fairness.

Most debate about campaign spending is cast in terms of the need to restrict powerful or wealthy political actors from dominating the campaign process at the expense of individual voters. When cast in terms of wealthy fat-cats or corporate America’s “buying” an election or a candidate, this scenario is rife with corruption and unfairness. But the laws that prevent corporate America from spending and speaking also constrain political challengers and other interest groups. They render incumbents much more secure because they make it harder for competitors to amass and spend the resources necessary to mount an effective political campaign.

In this respect, while campaign spending laws may have been cloaked in the mantles of political reform and good government, they are also, unquestionably, a gerrymander of the political system that favors incumbents and suppress competition. The best example of this is the provision that gives the Democrats and Republicans federal money in advance of election cycles while requiring small parties and independents to cross a particular electoral threshold before they can qualify for a reimbursement of their expenses—after the election is over. Thus, an important part of the campaign spending debate addresses whether we can trust elected officials to rise above the conflict of interest that comes with writing the rules by which they are returned to office.

The campaign spending debate is not over, though. Citizens United declared a few laws unconstitutional but it has not resolved anything. Congress can make more laws concerning the conduct of elections and it surely will. We can only hope that Congress will collectively choose to write better campaign spending laws that do not appear to give incumbents an unfair advantage.

This is because, in the end, it still is necessary and important to manage the quantity and volume of political speech in the marketplace. Critics and pundits are already discussing whether the Citizens United decision will unleash a torrent of spending by corporations, unions and other political entities. There is no question that such spending needs to be controlled in the public interest. If, as some critics argue, money is speech that must be protected from virtually any restraints, political discourse will inevitably come to be dominated by a few powerful voices. Quieter or nascent voices that lack only money—not merit—will be drowned out in the noisy chaos of an unregulated political marketplace of ideas. That’s bad for democracy because it will make it difficult for voters hear meaningful political information amidst the cacophony.

In this respect, the campaign spending debate forces us all to consider how best to strike a balance between the individual and collective aspects of political speech. We still seek a principle on which we can justify restricting the volume of individual (or corporate) political spending and speech in order to ensure that voters have access to a diversity of political opinion. It’s the same principle that limits how fast we each can drive so that the roads are safer for everyone and which prevents our economic marketplaces from being dominated by monopolies. If we can regulate roads and the economic marketplace in the public interest, let’s hope our elected officials can do a better job with the political marketplace.

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