A Right to Speak and Spend: Objective Journalism and Judicial Races Post-Citizens United

Abstract

The Supreme Court's decision in Citizens United changed much of modern campaign finance regulation. The Court relied on the First Amendment's Speech Clause to find that corporate speakers, like natural persons, enjoy an unlimited right to disseminate information in support of a political candidate running for office. The decision likely has far reaching implications for the future of campaign finance regulation, and the administration of elections across the country. More specifically, the decision has repercussions for the funding of judicial elections — which have been a source of controversy both prior to and post-Citizens United. A further concern presented by Citizens United is the consequences the decision may have on political information dissemination in general, beyond the effect it may have on any one given election. More specifically, what implications will the Court's holding have on independent news gathering? This Article puts forth two concerns for the future of journalism post-Citizens United.

First, Citizens United blurred the line as to what the "press" is. Prior to Citizens United, press entities were traditionally exempt from campaign finance regulations because of their status as non-partisan information sources. This gave the press a unique status to participate in political process not enjoyed by other groups. Such a distinction has been eviscerated by Citizens United. Any corporation — whether it be an establish press agency, or a for-profit company having nothing to do with newsgathering — now has the equal right to disseminate unlimited amounts of advocacy for a candidate or political position in the time preceding an election. Second, the decision in Citizens United allows for news organizations to contribute and advocate for a candidate separate and apart from their normal news coverage. A news corporation may now support, directly, a political candidate as a function of their corporate spending, while at the same time presenting itself to the public as an objective news source. While this concern may not be readily apparent — since news outlets may be wary of using their profits in support of a political candidate — currently most news outlets are owned by larger corporate parent companies, which do not have as their principle function news dissemination. These parent companies are less likely to respect values of journalistic objectivity sought by their subsidiaries engaged in newsgathering. The question becomes what is to occur if a parent corporation seeks to endorse a political candidate, while at the same time owning a news organization that presents itself as an objective source of information? Such a structure necessarily calls into question journalistic values, and erodes public confidence in media.

Keywords: media, first amendment, speech, corporations, judicial elections, election law, campaign finance