112 Pages Posted: 27 Mar 2012 Last revised: 9 Jul 2012
Date Written: April 5, 2012
2012 is a year of unprecedented amounts of political advertising, much of it paid for by billionaires and millionaires or by corporations, often with the identity of the funders hidden. These mega-funders act through “independent” groups, groups supposedly independent of the candidates. This is a good year to reflect on the health of our political system. Does it work well as a device to promote informed democratic decision-making and speech from multiple perspectives? The problems are deep and systemic. They go farther and deeper than recent Supreme Court decisions that increase the previously very substantial influence of huge corporations and the very wealthy on the American political system.
Still, recent decisions can lead us to think about the larger environment of our free speech system and about democratic system. Citizens United conferred a free speech right on corporate officers to spend unlimited amounts of corporate treasury funds for “independent” broadcast ads that support or oppose candidates for political office. Davis v. FEC protected self-funded millionaires and billionaires from the millionaire amendment to the McCain Feingold Act. That amendment allowed somewhat higher contribution limits (in a total not to exceed the millionaire’s or billionaire’s spending) for candidates facing and outspent by millionaires or billionaires. The Court found this limited effort to protect the opportunity of the underfunded candidate to respond impermissibly chilled the speech of millionaires and billionaires. Arizona Free Enterprise struck down an important system for public finance of state elections, again on the idea that a limited amount of publicly facilitated matching equals chilling.
These decisions are in considerable tension with the constitutional text and with the historical context and purposes of free speech guarantees. In the case of the 14th Amendment, the transformation of the text, from one protecting natural persons born or naturalized to one protecting corporations, has its origin in Lochner era jurisprudence.
The Davis and Citizens United decisions can best be understood in light of their impact on the already troubled larger environment necessary to sustain robust free speech and meaningful democracy.
Citizens United threatens to undermine further the fiduciary duty of elected officials to the people. It is inconsistent with historic understanding of the then radical idea that helped to create the system. By that approach, free speech was a right for people, was anti-hierarchical, and was designed to produce adequate information from multiple perspectives. It is in tension with the recognition that government has a positive role in furthering free speech and democracy. Government action may support free speech. It is not always a threat. Nor is unrestrained private power merely a benefit for robust free speech.
The Citizens United, Arizona Free Enterprise Freedom Club’s PAC, and Davis v. FEC decisions can best be understood in light of the ecology of freedom of expression and a host of threats it faces. As de Tocqueville, Daniel Webster, and James Madison were aware, extreme concentration of wealth in few hands tends to undermine democracy as well as effective speech from multiple perspectives. In addition, undermining the anti-trust laws to permit extensive corporate consolidation threatens democracy. That candidates need huge advertising budgets for television and often must rely on those with great wealth for contributions undermines their fiduciary duty to “the people.” That they are funded by “independent” groups raises similar problems. Both facilitate an insidious form corruption of the political process. Concentration of media power in a few corporate hands exacerbates the problem. The demise of the Fairness Doctrine further facilitates one sided political communication. It is no surprise that candidates supported by corporate groups act to diminish sources of funding for other perspectives, by undermining unions and public employee unions and restricting the rights of victims of torts and so income of trial lawyers.
The decisions of the Lochner era struck down progressive legislation, but left the political process relatively open. Decisions which undermine the democratic nature of the political process are worse. They strangle reform in the crib. The Court’s rejection of any consideration of equality of access to speech in the political process and its refusal to see any threat to the fiduciary role of public officials beyond outright bribery block almost all meaningful reform.
A revived and more pervasive fairness doctrine for television and cable (where most of the political money is spent) would be one reform to limit monopolization of speech by wealthy interests, though implementation would raise its own problems. Another would be a required amount of free time for candidates on television and radio.
Suggested Citation: Suggested Citation
Curtis, Michael Kent, Citizens United, Davis v. FEC, and Arizona Free Enterprise in Context: Lochner on Steroids and Democracy on Life Support (April 5, 2012). Wake Forest Univ. Legal Studies Paper No. 2029209. Available at SSRN: https://ssrn.com/abstract=2029209 or http://dx.doi.org/10.2139/ssrn.2029209