This week, in Citizens United v. FEC, five Supreme Court Justices declared an effective end to campaign finance reform as far as advertising is concerned.
Commentators looking at the implications of the case rightly imagine a nightmarish scenario of endless amounts of corporate funds - including corporate funds from foreign owners - flooding election campaigns with advertising.
Now, presumably we would not all be in an uproar if we all thought that the advertising in question would be fair, sober presentations of evidence and argument. The fear, presumably, is of the kind of endless mudslinging and misrepresentation and innuendo that characterizes ... well, lots of American elections already. The film that was the subject of the suit, Hilary, is Exhibit A.
It is important to recognize (as numerous commentators have recognized, starting with Dahlia Lithwick) that the strange element of Kennedy's analysis is not his assertion that restricting the rights of associations to engage in political speech is anathema to the First Amendment. That proposition is obviously correct. What is strange is his equation of corporations with associations, and hence with individual persons. That development represents something like a culmination of a long-term trend that started in the 1890s, as America's economy transitioned from industrial to corporate capitalism, American law followed.
But if (a huge "if"!) one accepts the premise that corporations are persons, the First Amendment consequences are clear. As it happens, First Amendment doctrines also offer a potential remedy. After all, considered as persons, corporations are subject to the same limitations on speech that apply to other persons and associations. For example, they can be held liable for engaging in libel. The biggest casualty of Citizens United may be New York Times v. Sullivan. . Sullivan is the case that said that where a public official tries to sue someone for libel, they have to show more than merely inaccuracy, they have to show willful falsehood or "reckless disregard" for the truth. Later, that rule was expanded to apply to all "public figures" in Curtis Publishing v Betts and Gertz v. Robert Welch. The theory of those cases rests on an empirical assumption: that public figures have ample access to the media to rebut false charges that are brought against them.
In practice, the Sullivan rule has meant that public figures are fair game. There have been rare exceptions, but in general the bar for a successful libel suit by a public figure is set so high that the mere existence of the Sullivan rule acts as a suit dissuader. It is a peculiarly American rule; almost no other countries embrace the Sullivan principle even when they eagerly adopt the general framework of American First Amendment principles. There are also all kinds of problems with the rule in practice; what about people who become "public figures" involuntarily (think Richard Jewell)? What is the real ability of public figures to respond to what would otherwise be libelous statements on the Internet?
Citizens United opens up a whole new, political dimension to the debate. Consider the evolution of campaigns. The famous Clinton "War Room" marked the dawning of a campaign style that features aggressive responses to negative advertisements even if they come from sources other than the opponent's camp. (For a negative example, think of the Kerry campaigns disastrous decision that the Swift Boat ads could not possibly hurt him and so should not be dignified with a response.) Negative campaigning has always been with us, but in the modern era it has reached new heights, and campaigns have developed counter-measures.
So what is the plausible counter-measure for campaigns threatened by an onslaught of corporate-funded negative and misleading campaign advertising? Libel suits. The empirical assumption that candidates have ample access to the media to respond to accusations withers in a situation where corporate-funded advertisements dominate the airwaves. Campaigns may start having teams of libel lawyers poised to file suits in response to corporate ads in exactly the way they have teams of counterspinners poised to created responses in the media today. If a few of these suits were successful, even after the fact, corporations and their shareholders would have a pretty good incentive to restrain themselves in terms of the kinds of ads they purchase.
All of this depends on the assumption that in light of the new realities, courts would be willing to reconsider the standard for what defines "reckless disregard of the truth." But that is not at all an implausible assumption. Anthony Kennedy, who wrote the Citizens United opinion, as been open to the past to consider arguments from the practices and experiences of other nations and practical realities of the marketplace. And there is a long history of the Court devising doctrinal limiting principles to blunt the potentially radical implications of its own earlier revisions to long-settled rules. In 1995, when the Court decided in Uniteds States v. Lopez that Congress lacked the authority to regulate the possession of guns in the vicinity of schools, commentators warned that the entire edifice of federal power under the Commerce Clause was on the verge of collapse. Instead, the same Rehnquist Court devised a whole series of limiting principles, exceptions, and possible counterarguments, and ten years later Lopez looks more like tinkering around the margins than a frontal assault on the New Deal state.
The same could be true of the First Amendment. In Curtis Publishing, Justice Harlan phrase the rule in an affirmative way: "We consider and would hold that a "public figure" who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." If that principle were applied in a libel suit against Citizens United based on their production of Hilary, how might they fare in court? Relaxing the absurdly high standards of the Sullivan rule - in line with the practices of all the other democracies with whom we claim kinship - would initially result in employment for large numbers of lawyers (an added bonus! Work for all those law school grads whose firm jobs have dried up). But in the long run, the reshaped terrain of American campaigning might not look all that different from its present state. It might even be an improvement. Who knows - maybe instead of trying to choke off destructive forms of advertising at their source, the better solution is to hold people and corporations accountable for what they say?
I welcome comment to my reply.
- R. A. Arcamona. Second-year law student at The George Washington University Law School, author of Protecting the Source, a blog focused on the law governing the fourth estate in the Internet Age.
The SCOTUS conservative majority said in their opinion that the current campaign system was a convoluted mass of band aids to address situational conditions that have popped up over the years. Reading between the lines, they have said that they will no longer waste their time on such matters and have essentially thrown it back on the spineless Congress that has consistently avoided a permanent resolution that might open the system up to more competition and reduce their re-election chances.
There are 3 options available to resolve this issue once and for all;
1. Do nothing (in reality the most likely outcome)
2. A Constitutional Amendment to strike Corporate Personhood from the books (not in our life time)
3. Passage of a national mandatory Public Finance Law (the best choice and an optional choice in some states now)
Sorry, but giving politicians greater authority to sue people who dare to criticize them, or engage in hyperbole in discussing them, is not a solution consistent with any First Amendment I'm familiar with. The truth is, politicians believe almost ALL criticism of them is false, malicious, reckless, and defamatory. I really don't think you want the courts wading in to decide what is "true" criticism and what is "false" criticism of candidates for office.
Politicians have appropriate protections for clearly libelous speech now - say, someone who alleges that Russ Feingold enjoys torturing kittens and stalking the Jonas Brothers is going to lose a libel suit. There's no need to insulate politicians from criticism, which you seem to think is necessary.
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://twitter.com/seanparnellCCP