NOTE: Welcome to our inaugural WTF Wednesday post. With this series we hope to highlight aspects of the law and legal profession that make one want to cry out “What The #@!*?” Sometimes this will be a decision we think has been wrongly decided, while other times it will consist of criticism of the legal culture. In short, we hope you enjoy seeing us pull our hair out in frustration so that you don’t have to. This first post might be more likely to make the reader say “WTF?!” given the position it takes.
Citizens United v. Federal Election Commission is one of the most controversial US Supreme Court cases of the modern era. Whole books could be written about the nuances of this decision (and there probably have been at least a couple such books written). For this post, I want to leave those nuances to the side. What Citizens United has come to stand for in our cultural is the proposition that unlimited money can be spent by private corporations on political campaigns. As Mitt Romney said, “corporations are people too.” To card-carrying liberals, this is abhorrent. Somewhat surprisingly, I don’t think this decision was wrongly decided.
To be frank, I think liberals’ dissatisfaction with Citizens United comes down mostly to realpolitik. In short, the Democratic Party does less to look out for corporate interests than the Republican Party, so corporations support Republicans. Democrats want to win elections, so they object to any tool in the quiver of the Republicans or their corporate allies (or masters, depending on your level of cynicism). I think the truly progressive position is to permit unlimited election spending by any person or group of people. This position stems mostly from a sort of First Amendment absolutism.
In Constitutional Law in law school the First Amendment is often discussed, because it provides so much grist for the intellectual mill. What, if any, limits can be placed on the freedoms of expression and association? And how does the First Amendment interact with commercial enterprise? When corporations speak, it is usually to try and get you to buy stuff, but what if what they want is your vote? One answer is provided by what’s known as the Central Hudson four-part test. This test determines whether a government regulation of commercial speech is permissible under the First Amendment. The four questions are:
1. Is the expression protected by the First Amendment? In other words, is it about lawful activity and not misleading? 2. Is the asserted governmental interest substantial? 3. Does the regulation directly advance the governmental interest? 4. Is the regulation more extensive than necessary to serve that interest?
I bring up Central Hudson because the Court has been clear that commercial speech receives less protection than purely political speech. This makes sense, as political speech is the height of what the First Amendment protects. So if some speech can pass the Central Hudson test then it surely must be permissible political speech as well. In short, Central Hudson doesn’t address political speech, but the broader lessons it teaches about regulation of corporate commercial speech should inform our assessment of corporate political speech as well.
Applying the first factor to corporate political speech, it is easy to conceive of plenty of speech that concerns the lawful activity of voting. The second part of the first factor asks whether the speech is misleading. This is almost wholly inapplicable to political speech, as we do not want unelected federal judges determining what is orthodox, permissible or even accurate when it comes political speech. So corporate political speech would seem to pass the first factor.
The remaining three factors discuss the relationship between the speech, the governmental interest in regulating that speech and the regulation actually imposed. This is the juicy part of the discussion. To my mind, as I’ve heard it expressed by the opponents of Citizen’s United, the governmental interest in limiting corporate political speech is to prevent such speech from drowning out the rest of us. Given the economic consolidation of the last century, corporations have more money and power than almost all individuals. If we want individual political speech to have any chance to be heard, we must limit the use of the bullhorn by those who can afford one.
In the age of social media, I don’t believe this argument holds water. Almost all of us have an ever-increasing ability to express our views on a variety of subjects. While not everyone can afford a primetime ad on Sunday Night Football that doesn’t mean that one cannot adequately express their political views. All it takes to have one’s position heard far and wide is a witty and well-crafted tweet or Reddit self-post. No amount of focus-grouped political pablum in 30-second TV ads can compete in our over-saturated media environment. Today, it is the quality of a person’s idea, rather than the quantity, that determines its impact. If this is true, there is no legitimate governmental interest in regulating the quantity of corporate political speech.
Going back to the analogy of commercial speech and Central Hudson, would a government regulation that prohibited Coke from advertising significantly more than Pepsi pass constitutional muster? I believe it would not. What would the governmental interest be? To ensure that consumers’ soda preferences are not unduly influenced by an imbalance in advertising? This would not be a substantial government interest. In the same way that we let the marketplace determine the victor in the cola wars, so too should we let the political marketplace of ideas proceed unfettered.
Citizens United is not wrongly decided? WTF?!