Citizens United and Information for a DemocracyJohn O. McGinnis • July 13, 2012 • 10:08 am
[This is the last in a series four posts on Citizens United. The first was Citizens United—The Most Important Decision of the Roberts Court; the second was Citizens United—A Renormalization of First Amendment Law; the third The Manufactured Hysteria Over Citizens United.]
In my first three posts, I showed that Citizens United is far less important for its direct effects than for an analysis that makes clear that speech at election time deserves the full benefit of the First Amendment’s charter of freedom. This decision to follow neutral free speech principles not only prevents judges and legislators from manipulating doctrine to their own advantage, but also helps temper an essential problem for democracy: how to get information about the issues at stake in an election to voters who do not much follow the news and yet may be decisive. Our age of accelerating technology exacerbates this problem, because it multiplies the distractions from public life.
Fortunately, citizens unsurprisingly focus on politics more at election time. Candidates and their supporters also have incentives to provide information that will gain their attention. Hence the importance of speech during campaigns. To be sure, that information of candidates and their supporters will be self-serving, but their opponents have every incentive to counter distortions and falsehoods. As I describe in my book Accelerating Democracy, there is evidence that the more campaign advertisements are aired, the better informed become citizens about candidates’ positions and ideology. Critics lambast 30-second commercials as simplistic and dumb-downed. But for many people, the alternative to a political advertisement is not a policy seminar but a beer commercial.
There are two thoughtful criticisms of the consequences of a free speech regime at election time. One is that it will allow special interests to shape politics for their own advantage. If we define special interests as groups that can use their legal leverage to get around free-rider problems, it may well be that our current campaign laws actually exacerbate the problem of special interests by sharply limiting the amount individuals can give to campaigns. Low ceilings on individual contributions force candidates to rely more on support from unions or trade associations. Besides raising individual donation limits, Congress and state legislators should make disclosure laws much more stringent. There is no reason that all contributions and independent expenditures cannot be disclosed rapidly on the web without the use of any disguising shells. Citizens can then draw their own conclusion from a candidate’s sources of support and there is evidence that speech supported by special interest spending is less effective than other forms of speech. Finally, restrictions on speech are less effective at curbing special interests than alternatives that have no effect on speech, like bans on earmarks and supermajority rules for spending.
The second concern is that a free speech regime gives more influence to the wealthy, who can spend more to speak. Of course, liberty always empowers those who can best make use of it, be they the wealthy, the glib, or the celebrated. We have a free speech guarantee in our constitution, not an equal speech guarantee. Wealth is in fact a source of more diverse influences than the other sources that would take its place. The wealthy are heterogeneous in their views. Last election more people earning over $250,000 a year voted for Obama than McCain despite the former’s promise to raise their taxes. Because innovation is always churning markets, the wealthy have constantly shifting interests. A free speech regime for elections promotes a more dynamic political system and subjects civic life to insurgencies and new perspectives. The balancing of the budget in the late 1990s owed a lot to the self-funded campaign of Ross Perot.
Campaign speech restrictions tend to privilege the influence of groups, like the press and entertainers, who are in the information business year round. In contrast to the wealthy, the press and Hollywood are far more ideologically monochromatic and have less variegated interests. And, as we saw recently in Great Britain, when campaign expenditures are restricted, politicians spend a lot of time currying favor with press barons. Democracy is famously said to be the worse political system except for all the others. Similarly, permitting everyone to speak without limit at elections is the worst campaign structure except for all the others.
If we are concerned about inequality at election time, we should not restrict anyone’s speech but instead enable more speech by people of modest means. We could give a refundable tax credit of a few hundred dollars for contributions to candidates by people who earn less than $100,000. This policy would allow more voices to be heard, as different kinds of candidates might take advantage of the credit. Most important, it would lead to more information at elections, not less. In an era where accelerating technology may raise all kinds of dangers, we need a better informed citizenry and a world more open to political as well as technological innovation. That is what freedom has brought in the past and can still bring today.