Citizens United, Competing Free Speech, and “Associations of Citizens”

Lynne Kiesling

I’ve spent the past several hours reading the Supreme Court’s opinion in Citizens United vs. the FEC; the document is available at the Supreme Court web site, and I encourage anyone who has an opinion about or interest in political expression and freedom of speech to read it. In other words, every American citizen, and our republic, would benefit from reading it and considering the ideas contained in it.

Like many others (such as Matt Welch and Will Wilkinson), I am stunned at and baffled by the misconceptions and the degree of deliberate misunderstanding of the provisions of the First Amendment that opponents of this decision are exhibiting (and that 4 jurists actually argued in favor of continuing to restrict freedom of speech and freedom of access to free speech). Even “right-wing” commentators like David Brooks oppose the decision (according to the comments I heard him make on NPR on Friday evening), and I think many opponents throughout the political spectrum are conflating, falsely, their desired concepts of speech and expression with their dislike of the outcome that is clearly divergent from their idealized notions of what a perfect polity would be.

Perhaps it is my innate cynicism, or it may be my universal disdain for politics and its inevitable cronyism that is seeing such high and visible expression these days, but I think that those who want barriers to corporate forms of political expression because of its injection of money into politics are naive in the extreme. Put another way, money has always influenced politics, and it always will, so comparing real-world politics to an idyllic, utopian republic is an exercise in futility. Wherever we use political institutions to decide outcomes that affect the well-being of any collection of individuals, those individuals are going to attempt to influence the processes leading to those outcomes. Even under BCRA restrictions on corporate political expression, lobbying, rent seeking, and money have continued to determine political outcomes. Government censorship of some speakers has not changed that, and has instead, as the Supreme Court’s decision puts it, censored political speech (pp. 38-39, pdf pp. 45-46):

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.” McConnell, supra, at 257–258 (opinion of SCALIA, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing the 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 or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false.

This decision makes it clear that what the First Amendment protects is speech, regardless of its content and regardless of the form of the speaker. That protection is essential to a healthy republic grounded in democratic processes, even if we disdain or distrust the speakers. As stated elsewhere in the decision (p. 24, pdf p. 31):

Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

One phrase that recurs frequently in the decision is “citizens and associations of citizens”. I find this phrase particularly meaningful, and to me it reflects the understanding that the American republic is grounded in individual rights, including both rights to free speech and rights to free association, including association with and within corporate entities. Those corporate entities are heterogeneous, from Exxon to the Sierra Club to the National Rifle Association to the AFL-CIO to Citizens United. The Constitution and this decision respect and protect the importance of the rights of individual citizens to determine for himself and herself what speakers and what forms of speech are important and material. By placing restrictions on the forms and/or sources of speech, the Government impinges that right, and that is a right that is at the core of individual autonomy and self-determination.

This line of thinking gets to where I think the opponents of this decision misunderstand and misinterpret it the most. The Constitution and the Bill of Rights exist to restrain government power. By definition, government has a monopoly on force and can exercise coercion more readily than other entities in society, including corporate entities (for-profit and non-profit). If a company pays to publish a book that advocates for a political candidate, as individual citizens we have the opportunity and the right to listen, to ignore, to publish a counter-argument; increasingly with the Internet more and more of us have the means to do so at much lower cost. Different speech, different speakers, different forms of speech all compete against each other in “the ‘open marketplace’ of ideas protected by the First Amendment” (p. 38, pdf p. 45). Money will always be a part of that dynamic. Only by having the freedom for all ideas to compete can we hope to restrain the venal and illicit intersection of money and politics that has disillusioned so many of us despite the existence of the BCRA restrictions.

The federal government, however, is a monopoly, and its exercise of force and coercion cannot be undermined or counteracted through an “open marketplace of ideas” in the ways described above. For that reason, to have any hope of a healthy republic, our default should be to restrain government power and coercion rather than restraining the speech of corporate entities, because corporate entities compete with each other, and with other types of speakers, in political speech. The government, on the other hand, faces no competition — it has a monopoly on the exercise of the sort of force and coercion that results in censorship when the First Amendment is not interpreted to protect all speech.

Others more knowledgeable than I have written intelligent comments on this decision, including law professor Larry Ribstein, Tim Lee, and law professor and former FEC Commissioner Brad Smith. I also like Ilya Somin’s argument for why corporate rights and property rights are part of the bundle of human rights, an interesting twist on interpreting this decision; he says that opponents to this decision are inaccurately conflating a right with the means of exercising a right (which is a more eloquent way of saying what I did above, or of saying that the First Amendment protects speech, not speakers).

Note also that the decision leaves intact requirements for information provision and disclosure, which do not abridge the First Amendment rights to freedom of speech among citizens and associations of citizens. Finally, I like Will’s closing comment so much that I’m just going to take it:

I see this ruling as vindicating the importance of equality of voice by protecting the rights of individuals and associations to speak out on behalf of their interests and values. Progressives clearly see the ruling primarily as some kind of corporate-empowerment initiative. But you can’t really take on Big Agra or Wall Street unless you can organize to speak out against the Chuck Grassleys and Chuck Schumers when it really counts.