Citizens United—The Most Important Decision of the Roberts CourtJohn O. McGinnis • July 10, 2012 • 9:32 am
Although it might not be widely recognized, the most important decisions of the Roberts Court to date have been Citizens United v. FEC and American Tradition Partnership v. Bullock, the case decided in June that reaffirmed Citizens. Their importance does not lie in what President Obama and much of the press emphasize about them. The portion of their holdings that permits for-profit corporations to spend money directly advocating the election or defeat of candidates has had little effect on political campaigns. Instead what is crucial about the decisions is that five justices on the Court analyzed political speech at election time through the prism of ordinary First Amendment principles. One might not think that development extraordinary, except that the dissenters in these cases and campaign finance “reformers” in general want to place election campaigns outside the ordinary protections of the First Amendment.
At stake is nothing less than how much information voters will get and thus how sound our political decisions will be in the long run. As I describe in my forthcoming book, Accelerating Democracy, new technology can help generate better information assessments and predictions about policy than ever before. But how does that information get to voters who must decide which candidate’s policies are best? The problem of getting information to citizens is compounded by technology as well. The ever greater entertainment available for private life naturally distracts most citizens from public life. Lincoln and Douglas famously gathered huge crowds for their debates, but they did not have to compete with cable TV.
As a result, it is very difficult and expensive to cut though such distractions and provide people with relevant information about candidates and policies in a manner that will grab their attention. But an election campaign is the best time for getting most people to pay attention to political issues. Getting that attention takes money. Little money is spent on politics compared to advertisements for consumer goods and yet the issues at stake in an election are more important than what kind of snack to buy. We now have evidence that when more money is spent in a campaign, citizens become more familiar with candidates’ positions.
While the Supreme Court’s decision on the healthcare law was important, health care policy will be subject to countless amendments and revisions in the coming years. What is crucial is that the American people can get information about the merits of these changes, including possible repeal of portions of President Obama’s program. And information is not only key to health care but the full range of what government does. Even the identity of future justices and thus the course of constitutional law will depend on debates at election time. That is the reason that I consider First Amendment decisions about campaign finance to be the most central of all to our political future.
In a series of three posts after this one, I detail the importance of Citizens United and its reaffirmation. First, I will show that Citizens United is sound because it applies the First Amendment to campaign finance restrictions in the same manner it applies the First Amendment elsewhere. Given that such restrictions can aid legislators by hobbling opponents and even affect the standing of justices by influencing the identity of future colleagues, adherence to neutral principles in this area provide a particularly important safeguard against rulers’ manipulation of democracy for their own benefit.
Second, I will demonstrate that despite the hysteria over the prospect of for-profit corporations flooding the campaigns with money, Citizens United did not substantially increase the influence of for-profit corporations on electoral campaigns. Any substantial growth in spending spurred by Citizens United has come from the somewhat greater confidence individuals have that they can band together to promote their views about candidates in a political campaign. Such confidence underscores what is right about Citizens United: it preserves a mechanism for people to coordinate the dissemination of their views. Such coordination is the essence of democratic debate.
In my final post, I focus on the social importance of full First Amendment protections for speech in campaigns. Information is life blood of democracy. We need a government to produce public goods, such as defense and education. But we must deliberate on what such goods are and how best to produce them. Information about public policy is the master public good. This public good is undersupplied. The government should find ways of encouraging more production of more information relevant to policy, not suppressing it with onerous campaign finance regulations.