The original question in Citizens United v. Federal Election Commission revolved around whether or not the FEC could use the McCain-Feingold Act (a.k.a. Bipartisan Campaign Reform Act) to prevent groups from distributing political advertisements within 30 or 60 days from a specific type of election. However, while this narrow element was the original nature of the case, the majority in the case expanded the breadth of the ruling to justify whether or not money expenditure in an election could be considered an extension of free speech and if corporations could use it for the direct purpose of supporting the election or defeat of a given candidate.
The somewhat sad reasoning in Citizens is that Justice Kennedy in the majority opinion seems to suggest that there is no way to distinguish between media (who was not restricted the McCain-Feingold Act) and other non-media corporation, even though governments and its agencies had been doing just that for years leading up to this case. The real question stemming from Citizens is what is the obligation of the United States to the Constitution when the consequences to possibility not upholding an aspect of it could be disastrous?
One of the chief problems with Citizens is the rationality that money is a form of speech and the First Amendment should protect its use. The underlying problem in the application of such a belief is that there is no inherent limit to the distribution of money. In this regard society tiers the importance of an individual’s speech by how much money he/she has. This scenario creates an unequal weight on speech that is not inherent to the accuracy of the speech. The point of the First Amendment was to ensure all speech because all speech was viewed as equal based on the premise of equal weight within reason. The tiered environment created by money destroys the assumed ‘equal weight’ environment, which ‘housed’ the First Amendment. The court in First Nat. Bank of Boston v. Bellotti did not properly appreciate this understanding.
Now one could argue that the ‘influence’ of newspapers and other print media, which received an exception before Citizens, also destroyed this environment. Such an argument is not correct. Newspapers offered the option of readers commenting on inaccuracies or perceived impartialities through the ‘letters to the editor’ section reducing the argument weight relative to the opinion produced by the paper. This option is not available for print insert, television or radio advertisements, the principle mediums of action by those who ‘demonstrate their speech’ with money.
Based on the entry costs associated with these mediums there is little to no opportunity for the average citizen to counter inaccurate information given by these ‘speechmakers’. In addition these ‘speechmakers’ can repetitively engage in this speech tapping into a very large audience. This lack of correction as a means to control weight is important because most of these advertisements are ripe with inaccurate and/or misleading information because to those producing them the point is not to win an election fairly, honestly and/or morally, the point is to win by any means necessary.
Another problem is that individuals and media outlets have an inherent ceiling to the influence they can exhibit in a political environment. Basically the maximum weight of their argument is reasonably capped. Individuals engage in direct speech (i.e. soapbox) are clearly limited by time and resources so their message(s) rarely carry lasting influence. Newspapers only produce one paper per day, which heavily restricts the content that it can devote to attacking/praising a given candidate(s) or the total influence it has as numerous papers would have to devote large percentages of space to a given candidate to generate lasting influence.
Television stations have a greater theoretical ceiling having the ability to disseminate content all 24 hours in a day, but face a ‘feasibility’ ceiling in that devoting too much aired content to attacking/praising a given candidate(s) will drive away undecided and ‘independent’ viewers allowing the station in question to only retain individuals devoted to loving/hating that given candidate/policy in a pre-conceived way. The tiered structure of ‘money speech’ has a much larger ceiling as advertisements of support/ridicule can appear in many different mediums generating huge levels of exposure (dwarfing those of newspapers and single television stations) with a much lower probability of turning off individuals who the advertisements are meant to influence.
Therefore, these advantages make ‘money speech’ much more valuable than ‘conventional speech’ and the more money one has the more ‘money speech’ one can make. Some try to make the argument that many people can ‘pool’ their money into collective organizations which would represent their interests with more ‘money speech’ than these individuals could muster on their own. Unfortunately due to the incredible imbalance in the current economic system the only organizations of this nature that could compete with corporate interests acting as a potential counterbalance are worker unions.
However, individuals who oppose the existence of these unions, because they do not agree with their political positions, are continuously attacking these institutions in various states in effort to destroy them. The systematic attempt to eliminate these established ‘common man’ money pools and the inability of other pools to generate equalizing amounts of money to compete with corporate interests heavily damages the validity of the pooled money argument. It is reasonable to suggest that the largest corporations will always have dramatically more ‘money speech’ than common citizens or smaller companies.
Those who argue that the point of Citizens was to liberate the ‘money speech’ for small businesses are either naïve or purposely misleading their audience. Available ‘money speech’ for small businesses only matters if that business agrees with the position of a larger business and if this is the case then there is little point for the small business to contribute because of vast percentage of the ‘speech’ on that given topic will be made by the larger business because it has more to gain or lose from influencing policy. If the smaller business disagrees with the larger business in a matter of policy there is no reasonable expectation that the smaller business will be able to utilize the ‘advantage’ of its ‘money speech’ to defeat the opinion of the larger business. In fact lack of viable restrictions on ‘money speech’ actually weakens the power of the speech for the small business relative to large business regardless of which business is actually right.
Interestingly the characterization of money as speech changes an intangible element to a tangible one, which actually strengthens the argument for regulating this type of speech. The original point of Citizens (from the petitioner’s viewpoint) argument was that it was not fair that their organization was restricted from releasing a political advertisement based on a specific time deadline, a deadline which did not apply to media organizations. The argument was that this deadline was a complete restriction of their organization’s ‘speech’. One could see the potential validity of their argument in that their ‘speech’ was being restricted in its entirety by the deadline. However, while the First Amendment disallows a government entity (federal, state or local) the ability to restrict an individual from speaking at all (outside of very specific situations), it does not restrict that same government entity from applying restrictions to certain types of speech.
A similar vein can be seen within the Second Amendment in that even if one argues that the rights of private citizens not in a government sponsored militia to bear arms are supported by the Second Amendment, an argument that is nearly impossible to make logically, government can still restrict the types of arms one can own legally. For example just because the Second Amendment states one can bear arms does not mean that the government has to allow an individual the right to own a nuclear bomb. Thus the right to bear arms is not universally protected in all forms. The same logic can be applied to the First Amendment in the form of ‘money speech’. Based on that precedent the government could place a ceiling on how much money a ‘person’ could spend in a given election cycle (just not donate to a given candidate, but actually spend be it independently or through some subsidiary).
One could argue that such ceilings were addressed in Buckley v. Valeo, but the reasoning in Buckley is incredibly naïve when addressing the ceilings relative to the improbability of corruption: “[the] absence of pre-arrangement and coordination…alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Perhaps one could hold on to such illusions in 1976 when the Buckley ruling was made, but with changes in technology as well as existing anecdotal evidence over the last 30 years it is extremely difficult to view such a reasoning as valid in 2009 (when Citizens was ruled) or 2011.
Another interesting association between the First Amendment and money can also generate allowable government restriction. The spirit of the First Amendment was designed to protect differing opinions, but not opinions that were deterministically false, there is a reason libel and slander laws exist. Normally deterministically false statements are of little consequence because of the small scale in which they occur; however, within each election cycle based on what is at stake due to how the decisions legislators make influence the well-being of the general public the importance of deterministically false speech in the election environment, regardless of intent, is significantly magnified. Therefore, it should be the prerogative of a government agency to penalize and restrict individuals or groups making clearly false, ambiguous or misleading ‘money speech’ in an election environment within proper jurisdictions.
Some want to argue that these types of restrictions are not necessary largely because voters are intelligent actors and money invested in election cycles only has a muted influence on which candidate a voter votes for. This reasoning seems to fall short of viability on two points. First, if such a statement were accurate then why are hundreds of millions of dollars spent in each major Federal election cycle; clearly the individuals/groups spending this money have conducted numerous studies to identify the best and most efficient means to spend the money as ‘speech’. Therefore, it is difficult to accept the reasoning that all of this money and time would be spent on an endeavor that had little to no influence.
Second, the belief that general voters intelligently analyze candidate platforms and logically determine whether those platforms are valid and will be effective at solving problems is naïve. Most voters do not either have the time, the experience or the desire to undertake such a task, especially because of the general lack of specificity offered by candidates on their platform (most simply give general stock answers to questions or flat out lie). Thus, without this in-depth analysis most voters rely on media outlets and advertisements to ‘inform’ them regarding political platforms and opinions. Overall ‘money speech’ clearly plays a significant role in politics with regards to influencing voting trends and habits and to argue otherwise is simply foolish.
When considering the manner of speech itself a distinction must be drawn regarding subjectivity. There are two types of elected official: legislative and judicial (note that this categorization is different from branches of government of which there are three). These two categories are divided by the roles they play in crafting the law. The legislative category is responsible for creating, debating and passing/failing perspective legislation (the President is also a part of this category) where the judicial category is responsible for determining whether two separate laws contradict and how to resolve that contradiction and address criminal sentencing.
Between these two categories the legislative one has a much greater level of subjectivity relative to how to solve a given problem. The purpose of passing new laws is to solve a problem in society, yet due to imperfect knowledge and boundary conditions the analysis ability to determine whether or not a given solution is successful is not purely determinate. An extremely simple example of this process is determining a solution for x + y = 7. In this situation there are numerous solutions to the problem regardless of methodology.
However, the general openness of the legislative category does not exist for the judicial category. Determining if a given piece of legislation is constitutional, in conflict with another piece of legislation or if a defendant is guilty, etc. are much more restrictive due to existing logic and boundary conditions. For example for this category instead of x + y = 7 the problem is x + y = 7 where x > 3 and y is positive. Basically the level of subjectivity is much smaller and there are fewer viable possibilities for x and y.
The general point of speech in the election of an individual who will take a legislative role, regardless of type, is to demonstrate support for a particular idea or group of ideas that embodies the candidate. It can be argued that another rationality is to exhibit support for certain personal characteristics of the candidate, which could allow him/her to better work with other legislators to come to a deal. This situation is different for a judicial election because the limited options eliminate the second rationality for speech support. Judges do not negotiate with other judges in a quid-pro-quo manner similar to politicians. The first opinion is also significantly hindered by the limited number of correct options due to sentencing guidelines, logic and legal precedent. Therefore, speech in support or opposition against judicial candidates can only effectively be given as a measure of how effective a judge is at upholding the law on an analytical basis.
Unfortunately most of the ‘money speech’ in judicial elections is based around fear and bias largely driven by an attempt to seat like-minded individuals regardless of whether or not the legal opinions of the candidate in question are correct. This lack of respect for the legal system is troubling and actually could allow for the restriction of support/detraction speech in judicial elections due to Brandenburg v. Ohio.
Brandenburg v. Ohio largely addressed the issue of ‘clear and present danger’ exception to the First Amendment, which was first validated in Schenck v. United States. Originally the ‘clear and present danger’ exception was clarified under the ‘bad tendency’ test in Whitney v. California where if the speech has a tendency to cause sedition or lawlessness it could be constitutionally prohibited. However, Brandenburg created a new standard for the exception through a three-pronged test, which limited its application restricting government ability to restrict speech. The three elements that make up the test are intent, imminence and likelihood. When individuals devote ‘money speech’ to the defeat of a sitting judge who has not demonstrate malfeasance it can be argued that such ‘speech’ is meets the three elements of the Brandenburg test.
Arguing that a judge that has a reputation for ruling correctly legally and logically should be replaced in an election demonstrates intent in that supporters of the challenger believe that the challenger will rule differently than the sitting judge. However, if the sitting judge has ruled correctly then these supporters are supporting a candidate who will rule incorrectly, a candidate that intends to break the law by improperly evaluating it. Likelihood occurs because judges do not summarily rule on the constitutionality of an issue randomly and spontaneously, typically a petitioner must bring a suit, which challenges the standing of a given law. Therefore, if an individual is bringing a suit and is successful it stands to reason that the likelihood of that individual acting upon that new ruling is very high.
The only questionable element is imminence, but similar to likelihood it stands to reason that if an individual is bringing a suit against a particular law that if it is overturned that petitioner will act upon the law as soon as possible (a near immediate effect). Therefore, it appears possible that the government would be authorized to disallow ‘money speech’ in an election against a standing incumbent judge who has not demonstrated malfeasance.
Note that ‘money speech’ would be targeted in the above example over general speech because of the breadth of contact. The ‘danger’ in a judicial election is an individual taking the bench who will make judgments that are incorrect solely due to personal or professional motivations. Only ‘money speech’ has the ability to influence enough people to elect the judicial candidate who will be inappropriate for the job. There is little reason to suspect that general speech will be able to create a sufficient level of influence. Also note that the ability of the government to restrict ‘money speech’ only applies to judicial elections with an incumbent as there is not existing record to judge for two competing non-incumbents.
One exception that could be discussed regarding an incumbent re-election is past action within the sentencing range. While the judicial rulings on guilt and constitutionality are rather firm, the most subjective aspect of a judge’s role is sentencing. Some individuals may disagree with a judge who assigns penalties on the higher edge of the guidelines (5 years instead of 3 years for a 3-5 guideline crime) or visa-versa. In these situations if ‘money speech’ can demonstrate specific instances of such behavior through explicit citations then it would be difficult to eliminate ‘money speech’ made in opposition of that premise on the basis of the Brandenburg test.
One may try to argue that ‘money speech’ should never be restricted in elections based on the sole element of personal opinion regarding likeability. Basically ‘money speech’ could be used simply to exclaim to the public that candidate A is a ‘good guy’ and individual or organization A likes him. The problem with this mindset is that it is very unlikely that an individual or organization would spend thousands to tens of thousands of dollars in ‘money speech’ driven only by a personal like for the given candidate, there will be an ulterior motive.
Overall while the rationality in that completely restricting the ability of an individual or organization to participate in the political process through purchasing advertisement may seem logical, the First Amendment also does not guarantee unlimited speech in an environment when all individuals do not have the same opportunity for speech. Therefore, this realization logically, and more than likely legally, gives the government the ability to place a ceiling on the total ability of individuals to ‘speak’ in these types of environments. For example the government could set a ceiling on the amount of money that a given individual or corporation could spend in an election cycle to 20,000 dollars. Also based on the general differences between those who make the law and those who enforce punishment and interpret the law monetary speech restrictions in judicial elections could be even more strict, possibly even disallowed. While some believe that the ruling in Citizens significantly curtailed the government’s ability to restrict corporate money in political activities, any interpretation that the government is unable to apply monetary caps to corporations or individuals for political activities is unethical and logically wrong.