54 Pages Posted: 3 Oct 2010 Last revised: 26 Mar 2012

There are 2 versions of this paper

Date Written: September 30, 2010

Abstract

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.

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 the fiduciary duty of elected officials to the people. It is inconsistent with historic understanding that free speech was a right for people, that it was anti-hierarchical, and that it 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 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.” It facilitates an insidious form of corruption of the political process. Concentration of media power in a few corporate hands exacerbates the problem. The demise of the Fairness Doctrine facilitates one sided political communication.

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.