Buckley v Valeo opinion Wordle (Photo credit: llaannaa)
Part 1 of the series Money in Politics.
“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” – Per Curiam (Anonymous) Majority Opinion, Buckley v. Valeo, 1976, quoted in Justice Kennedy’s Majority Opinion, Citizens United v. FEC, 2010.
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Let us begin with a facial evaluation of the Court’s claim that independent expenditures on electioneering speech, primarily television and radio advertisements, increases the breadth, depth, and inclusiveness of speech. The first two claims display an appallingly naïve conception of how mass political campaigning works.
English: Anthony Kennedy, Associate Justice of the Supreme Court of the United States (Photo credit: Wikipedia)
As the court rightly notes, broadcast advertising is expensive, so ad spots tend to be purchased by relatively few organizations that collect and concentrate contributions from many individuals (e.g., SuperPACs). Producing advertisements can also be expensive, limiting the number of “speakers” still further; at any rate it is more effective to run many ads about a few issues than to run only a few ads for each of a few issues. Political organizations conduct focus groups and internal polling to select the issues they will present. They then produce a slanted advertisement full of emotionally laden but intellectually shallow content. These ads often cite headlines from major newspapers without a shred of context, perhaps interviewing some angry citizens or indignant small business owners.
As a result of concentrating contributions in a few key lines of electioneering and the limited and emotive nature of short broadcast advertisements, independent political expenditures do little to diversify or deepen discussion of issues of public importance. Even the chief protection against shallow and repetitive messages, the supposed independence of, well, independent expenditures from official campaign strategy, is easily bypassed by waiting for the candidate to make a public attack on his opponent, then immediately preparing ads repeating and amplifying that attack. Such tactics have the added benefit of letting the candidate claim the high road by not directly associating with negative advertising.
The current state of political advertising demonstrates inherent differences between speech and independent campaign expenditures. Unlike speech, monetary expenditures lack political content. A SuperPAC can spend a small fortune espousing the benefits of a healthy breakfast or just air hours of white space, if it so desires. Merely buying up ad space (the monetary expenditure part) is distinct from imbedding content in those advertisements (the political speech part). Monetary outlays do not have any speech content unless accompanied by some other communication, even in the case of politicized transactions like boycotts.
The cover of The Assault on Reason by Al Gore. (Photo credit: Wikipedia)
The Court thus relies solely on the belief that large monetary outlays are a necessary condition for exercising constitutionally protected free speech rights. They rely on the bizarre logic that because our primary media happen to be controlled by corporations who use dollars as a unit of access, we as a political entity must also use dollars as the unit of access to speech. This is simply not the case. The government could establish a publicly available political forum. A dramatically less expensive form of media like the Internet could take over*. And while the Supreme Court may be right that media is a commodity in the present day and age, its majority opinion establishes a precedent intended to prevail indefinitely. The grand irony is that Citizens United may allow exactly the type of plutocratic control of media development and regulatory structures that would prevent the emergence of a truly egalitarian public forum.
Even so, the nature of television and radio as mass media creates two more problems absent in normal speech: bandwidth limitations and unilateral communication. Political speech, in its most basic form, comprises two or more individuals verbally communicating with one another about a matter of public importance. The Greek agora and the Roman forum are political venues precisely because any citizen within them has equal power to engage in persuasive discussion with any other citizen present. All citizens, in turn, have free access to the venue.
Radio, by contrast, has a finite number of usable frequencies, and television has a finite number of channels with substantial viewership. These media forms are far more scarce – and therefore far more expensive for the author – than, say print media was at the time of the American Revolution. Moreover, the relatively small market in these media means that increased demand during presidential elections rapidly increases the price of ad space – even web-based advertisements suffer a price hike before election day. The structure of telecommunications limits the number of political ads that can be aired, so that unlimited ad buys simultaneously diminish the quantity of speech by crowding out other, less wealthy advertisers.
Both radio and television (and still, to some extent, web content such as YouTube videos) allow only for one-way communication, from the advertiser to the content subscriber. Broadcast advertisements therefore treat the viewer or listener as a mere receptacle for persuasion, and not herself as a persuasive, human voice. In common speech, the immediate proximity of the speaker to her listener is essential to the act of speech – one must both attempt to persuade and be open to persuasion to engage in political discourse. The Court does away with the multidimensional plurality of politics when it concerns itself with “the size of the audience reached” and not with the size of mutually engaged citizenry.
Rather than expand political speech, unlimited independent expenditures thus stifle free expression by placing de facto limits on who is allowed the loudest voice, viz., whoever has the most money to spend. The Citizens United ruling is thus the modern-day equivalent of giving bullhorns to a handful of Roman citizens, such that their rancor effectively precludes the participation of others. And since neither the rogue shouter nor the mega-rich SuperPac is accountable to any standard of truth or logical consistency, the predictable and necessary effect is to dilute true political speech with senseless chatter.
James Madison, author of Federalist no. 10 (Photo credit: Wikipedia)
The First Amendment exists to protect against a tyrannical government by guaranteeing the relatively equal ability of citizens to create and disseminate content critical of government practices and elected officials. It operates on the theory, expressed by Madison in The Federalist No. 10, that many, relatively equal factions will balance one another to prevent minority rule. When we allow economic success to translate into political prevalence, factions comprising the very wealthy gain disproportionate power over government, threatening the delicate balance that keeps our country free. Speech is not a good for purchased, but an activity in which to engage. Only be recognizing that truth can we ensure a healthy and vibrant democracy for future generations.
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*For a fairly insightful, albeit at times obnoxiously polemic, analysis of the Internet’s potential for furthering democratic participation, see The Assault On Reason by Al Gore. In an infamous interview during the 2000 presidential campaign, Gore allegedly claimed to have invented the Internet. He of course did not, and was actually referring to two pivotal pieces of Internet research legislation, the Supercomputer Network Study Act of 1986 and the High Performance Computing and Communication Act of 1991 (also known as the “Gore Bill”) that he sponsored and advocated as Congressman and, later, Senator. Both acts were critical to developing the Internet as we know it, leading Internet pioneers Vint Cerf and Bob Kahn to remark that “Congressman Gore… was the first elected official to grasp the potential of computer communications to have a broader impact than just improving the conduct of science and scholarship.” In other words, polemic or not, Al Gore has been an expert on Internet communications and telecommunications policy for over 30 years.
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