January 28, 2016

Paid Speech Isn’t Free

by Derek Cressman, a longtime reform advocate and architect of anti-Citizens United voter instruction measures in California, Colorado and Montana.

Common sense tells us that if money is equivalent to political speech, then that speech is not free. But contemporary campaign finance jurisprudence presumes that paid advertisements, which can indeed disseminate political speech, deserve identical First Amendment protections as the free press. Supreme Court rulings such as Buckley v. Valeo, Citizens United v. FEC, and McCutcheon v. FEC have undone post-Watergate reforms to limit big money in politics and have given a small group of billionaires an outsized role in deciding who runs for office, who wins elections, and what issues dominate our political discourse.

I wrote When Money Talks: The High Price of “Free” Speech and the Selling of Democracy in order to draw a bright line between paid speech (which is funded by the speaker and foisted on the listener unsolicited) and free speech (which is sought out and usually paid for by the listener when she buys a newspaper, for example). It’s an instruction manual intended to equip citizens with arguments and an assortment of tools to overturn Supreme Court rulings in Citizens United and related cases. It eschews legalese for plain talk, but includes plenty of arguments that lawyers, academics, and advocates will find provocative.

Once the line is drawn between paid and free speech, some constitutional protections for paid speech remain – as Justice Stevens has eloquently explained. So while we may limit the amount of money anyone spends on paid speech, we may not ban it entirely and must justify the limits with a compelling public interest.

Legal scholars have long debated the extent to which preventing corruption or promoting equality justify some restrictions on paid speech. I offer a third interest: the wisdom of the crowd. For both voters and legislators to make wise decisions about public policy, we need robust but also balanced information from opposing viewpoints.

We have long accepted that judges can limit the page length of briefs and the minutes of oral argument in order to assure a balanced debate and increase the likelihood of a wise and fair judicial outcome. City councils limit the duration of each speaker during public comment for the same reason. Some have presumed that time limits on actual speech are justified within a closed forum but not “outside” the forum in the real world.

When Money Talks challenges this assumption by noting that just like legislators and judges, voters too have limited time to consider opposing viewpoints. Drawing upon cognitive research from behavioral scientists, the book identifies the conditions necessary to prevent a wise crowd from devolving into a foolish mob. One need only look at today’s presidential primary campaigns to note the absence of those conditions, which include a balanced debate and individual autonomy in decision making.

Contrary to assertions from those trying to justify unlimited paid speech outside of a moderated forum, public attention to politics is not unlimited. When one viewpoint crowds this scarce resource, it displaces other viewpoints – diminishing speech and leading to less wise decision making. Paid advertising intrudes upon a voter’s autonomy to choose for herself which speech to listen to, and which she simply doesn’t have time for. Paid lobbyists intrude upon the scarce time of public officials using access they purchase with campaign contributions, and in the process diminish time available for ordinary constituents. The result is a public decision making process that overemphasizes the interests and concerns of the few while deprioritizing the needs of the many.

While movements to overturn court doctrine can indeed take decades, we are already 40 years into that struggle. In the four decades since Buckley v. Valeo, reformers have forged a deep national, bipartisan consensus that money is not free speech. Our governmental apparatus will inevitably accommodate that consensus in one way or another, perhaps sooner than cynics can fathom.

When Money Talks offers a full menu of options for changing course. I examine the pros and cons of asking voters to sit on their hands and simply wait for a change in court personnel as well as exploring other options, including multiple routes for passing a constitutional amendment or provoking an FDR-style constitutional crisis where the executive branch challenges the judicial branch’s interpretation of the Constitution.

You can read a broad overview in the introduction to the book here. There are Q&As as well as excerpts of the book available at BillMoyers.com, Truthout and Salon, as well as a vibrant debate in a Reddit AMA. Three bonus chapters of the book (available for free here) offer a detailed history of legislative efforts to limit money in politics, a rebuttal to policy arguments against such limits (such as their effects upon challengers), and a brief exploration of the very real threats to free speech faced in America today which have been overshadowed by the Supreme Court’s obsession with money.