Regulating the Marketplaces of Political and Economic Ideas

Transcription

1 Duke University From the SelectedWorks of Christopher S Ford March 31, 2011 Regulating the Marketplaces of Political and Economic Ideas Christopher S Ford, Duke University School of Law Available at:

2 REGULATING THE MARKETPLACES OF POLITICAL AND COMMERCIAL IDEAS Christopher S. Ford ABSTRACT Ever since Justice Holmes famous dissent in Abrams v. United States, First Amendment jurisprudence has labored under the metaphor of a marketplace of ideas. The government must abstain from regulating this market, courts and commentators have argued, to best ensure healthy and free competition among ideas. The Supreme Court has frequently relied on this metaphor when evaluating claims under the First Amendment, and did so prominently when deciding the recent case of Citizens United v. F.E.C. Yet the sweeping majority opinion by Justice Kennedy and strident dissent by Justice Stevens advance two fundamentally different ideas of how the marketplace of ideas is constituted. Kennedy sees the marketplace as protecting the voters from the influence of government, thereby enabling democracy to function best. Stevens, by contrast, sees the government as a necessary regulator of the marketplace, guarding against corruption and undue outside influence. The Justices do not make these fundamental premises clear, however, and as such their opinions cannot meaningfully engage with the opposing argument. By undertaking a thorough analysis of both campaign finance precedent and the two principle opinions in Citizens United, this Article seeks to uncover the arguments underlying these contrasting understandings of the marketplace of ideas. In so doing, however, it reveals how both Justices are peculiarly focused on one particular marketplace: that of specifically political ideas. As such, the holding of Citizens United must be seen as applying narrowly to one particular marketplace of ideas and not to the freedom of speech more generally. In opposition to recent commentary, this Article argues that Citizens United will not impact the Court s commercial speech doctrine, most prominently outlined in Central Hudson, because that doctrine affects only speech that occurs in the marketplace for economic ideas. Though Citizens United portends an expanded role for corporate speech in political campaigns, it should not be read to require strict scrutiny for any government regulation of corporate speech.

3 2 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 REGULATING THE MARKETPLACES OF POLITICAL AND COMMERCIAL IDEAS Christopher S. Ford * * * CONTENTS Introduction... 2 I. Historical Approaches to the Marketplace of Political Speech... 6 A. The Early Cases: C.I.O. and Button Set the Stage... 7 B. Protecting Independent Expenditures: Buckley and Bellotti C. Defining the Limits of the First Amendment s Protections D. Austin and Bans on Corporate Independent Expenditures II. Citizens United: Protecting the Marketplace of Political Speech From, or Via, the Government A. The Majority Opinion: A Free Market(place) Approach B. Justice Stevens Dissent: The Government As a Regulator of Public Discourse III. Regulating a Different Marketplace: Citizens United And Commercial Speech Conclusion * * * INTRODUCTION The First Amendment prohibits Congress from abridging the freedom of speech. 1 These five words have generated an enormous catalog of derivative writing, dissecting the nature of what it means to abridge and what it means to speak. Though the First Amendment protects private speech from government interference as a general matter, its protections are Copyright 2011 by Christopher S. Ford. Duke University School of Law, J.D. expected Swarthmore College, B.A My sincere thanks to Professor Joseph Blocher and Kara Duffle for their advice and support. 1 U.S. CONST. amend. I.

4 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 3 generally accepted to be at their highest level in the context of political discourse. 2 In a democratic society, where the right to govern derives from the consent of the governed, 3 the polity must have the freedom both to express their opinions and access the opinions of others. 4 The Supreme Court has long focused on the popular analogy of a marketplace of ideas when considering restrictions on the freedom of speech. 5 This conception, drawn from the market theory of classical economics, views speech as the vehicle by which ideas are disseminated, and the receiving polity as the market actor, discriminating among the various ideas in search of the best of them. Speech, thus, is of instrumental importance: 6 it cannot be restricted or the citizenry will not have free access to ideas to determine which deserve priority. This analogy is well-suited for the realm of political discourse, because it dovetails nicely with the idea that the democratic polity should be free to choose those principles by which they will be governed. The right to speak freely is not, however, unbounded. The wellaccepted notion that government is free to prevent individuals from 2 See Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, (1992) (discussing various Justices emphasis on protection for political speech). 3 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ( That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.... ). 4 See Scott E. Sundby, Everyman s Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 COLUM. L. REV. 1751, (1994) (discussing how the First Amendment serves to actualize the citizenry by permitting every person equal access to the arena of public opinion ). 5 See Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring) ( The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers. ); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ( [T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.... ). 6 A complimentary view argues that speech has primary, inherent importance as a mode for individual self-actualization. See Sundby, supra note 4, at (arguing that access to the arena of public opinion serves to encourage individuals to self-actualize). 3

5 4 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 unnecessarily shouting fire in a crowded theatre 7 illustrates the key tension arising from a unitary marketplace of ideas analogy: if the purpose of speech is to permit the dissemination of ideas, what about valueless speech? Obscene speech does not receive the full protection of the First Amendment, 8 nor does speech that incites immanent lawless action. 9 Each of these decisions indicates the Court believes that the government has some power to limit speech that falls outside the traditionally-conceived marketplace of ideas or speech that does not deserve to participate in that market. By conceiving of a single marketplace of ideas, the Supreme Court 10 and leading scholars 11 only heighten the difficulties endemic in parsing First Amendment jurisprudence. This Article suggests a broader way of conceiving of the arenas in which speech occurs: a variety of marketplaces of ideas, each with their own character and accompanying proper form of regulation. To illustrate the benefits of this approach, this Article evaluates the interplay between political speech and commercial speech a problem highlighted in the Supreme Court s recent decision in Citizens United v. F.E.C. 12 Citizens United addressed the constitutionality of corporate speech in the context of contested political elections between individual 7 Schenck v. United States, 249 U.S. 47, 52 (1919) ( The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ). 8 See, e.g., Miller v. United States, 413 U.S. 15 (1973) (holding that obscenity is not protected by the First Amendment). 9 Brandenberg v. Ohio, 395 U.S. 444 (1969). 10 A brief review of just one area of First Amendment jurisprudence, the government speech doctrine, should suffice to illustrate this point. Compare Ark. Educ. Television Comm n v. Forbes, 523 U.S. 666, 669 (1998) (holding government action to be speech), with Rosenberger v. Univ. of Va., 515 U.S. 819, (1995) (holding government action to be regulation of a public forum). 11 See, e.g., Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, (2001) (discussing the complexities inherent in government speech analysis in the context of the marketplace of ideas). 12 Citizens United v. Fed. Election Comm n, 130 S.Ct. 876 (2010).

6 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 5 candidates. 13 In the field of political speech, exactly where the line is drawn between acceptable and unacceptable speech is as controversial as who should draw it. If the government is truly to stand aside during elections, must it permit all speech by a person seeking public office? 14 Must it permit all speech from all speakers during the period leading up to an election, so that only the polity decides what is and is not valuable? In Citizens United, Justices Kennedy and Stevens engaged in a spirited debate about the core purposes of the First Amendment and the nature of its protections. 15 The two Justices set out remarkably different conceptions of what the First Amendment means, and point out the ways in which the direct, universal language of the Amendment make no law has become a veritable Gordian knot for the Justices to untangle. In doing so, however, both Justices refer repeatedly to the way in which the marketplace of ideas will be affected by the introduction of corporate speech, and in so doing neglect to consider the purpose of the particular marketplace in which political speech occurs. As such, their opinions are ships crossing in the night: because they rely on unstated but inherently contradictory assumptions about the nature of the marketplace of political speech, the Justices arguments will fail to persuade anyone that does not share their unspoken belief. In a lengthy majority opinion by Justice Anthony Kennedy, the Court strongly reaffirmed the principle that only the citizenry should judge the worth of ideas, regardless of their source. 16 Justice Kennedy s opinion relies on the notion of a marketplace of ideas unfettered by government control because the essence of democratic governance requires the citizenry alone to judge the worth of particular speakers and their ideas. This opinion provoked an equally lengthy dissent by Justice John Paul Stevens, who sought to emphasize a long line of precedent permitting Congress to 13 The Supreme Court had already invalidated restrictions on corporate speech during referendum elections in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). 14 Cf. Forbes, 523 U.S. 666 (1998) (permitting minor third-party candidates exclusion from Presidential debates). 15 See generally Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 HARV. L. REV. 143 (2010) (discussing the contrasting views of the First Amendment implicit in the opinions by Justices Kennedy and Stevens in Citizens United). 16 Citizens United, 130 S.Ct. at 907 ( The speech... is public, and all can judge its content and purpose. ). 5

7 6 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 distinguish between natural and corporate speakers. 17 Justice Stevens dissent fails to engage meaningfully with Justice Kennedy s arguments, however, because his opinion presumes that government has a role to play in the regulation of the marketplace of political speech. To understand what these two opinions portend for the future of First Amendment jurisprudence requires a deeper understanding of how these different conceptions of political speech were derived and what these underlying principles mean for other areas of speech (namely commercial speech). Part I of this Article will describe the Court s political speech jurisprudence leading up to Citizens United, with an emphasis on how these precedents are used by Justices Kennedy and Stevens. Part II then undertakes a critical analysis of the two principal Citizens United opinions, with the goal of distilling the way in which each Justice understands the marketplace of political speech to function. Part III then considers the implications of these two understandings in a different marketplace of ideas: that of commercial speech. I. HISTORICAL APPROACHES TO REGULATION OF THE MARKETPLACE OF POLITICAL SPEECH The dialogue between Justices Kennedy and Stevens in Citizens United is not sui generis; it is the product of a long line of jurisprudence that established a particular method of approaching First Amendment questions with respect to both independent expenditures and corporate speech. Yet each Justice relies upon different parts of that history, emphasizing different aspects of holdings and drawing differing conclusions about the relative importance of arguments advanced by or within certain opinions, while occasionally leaving foundational cases untouched. 18 This Part will proceed chronologically through the Court s political and corporate speech jurisprudence. Each opinion will be evaluated independently as an expression of a particular perspective on the First Amendment, and will be discussed in the context of its use by Kennedy and/or Stevens. Throughout, the emphasis will be on the ways in which the Court has, over time, developed an understanding of how and why the marketplace of corporate speech should be regulated. 17 Id. at 975 (Stevens, J., dissenting). 18 For example, Justice Stevens does not discuss Button, and neither Justice considers U.S. v. C.I.O., discussed infra in Part I.A.

8 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 7 A. The Early Cases: C.I.O. and Button Set the Stage Near the midpoint of the 20th century, the Court decided two cases that represented the beginning of its contemporary treatment of the question of what protection is to be afforded corporate speech under the First Amendment. In United States v. Congress of Industrial Organizations, 19 the Court considered the constitutionality of a Federal statute prohibiting corporations from making contributions or independent expenditures in connection with any election. Soon after, the Court addressed the broader question of the application of the First Amendment s protections to corporate organizations in NAACP v. Button. 20 In each of these cases, the Court was required to resolve questions that would prove integral to the disposition of Citizens United. In CIO, the Court faced but avoided a constitutional challenge to Congress regulation of corporate speech during elections. The Congress of Industrial Organizations was charged with publishing an issue of their weekly periodical that endorsed a Maryland congressional candidate, explicitly asking CIO members to vote for that candidate. 21 The Supreme Court, in an opinion by Justice Reed, construed the charging indictment to fall outside of the relevant statutory provisions, and as such did not reach the constitutional question. However, in passing, the Court expressed the gravest doubt about the notion that it would be acceptable for Congress to prohibit the publication, by corporations and unions in the regular course of conducting their affairs of materials that urged their constituent members to support or oppose the adoption of particular measures or the election of particular individuals. 22 As such, the Court held that the relevant statute did not bar corporations from publishing a regular periodical that, near an election, contained an endorsement of a particular candidate. 23 In so holding, Justice Reed emphasized two key factual elements about the case: first, that the electioneering statement was published in a regular periodical, and second, that the periodical was distributed only in regular course to those accustomed to receive copies of the periodical. 24 As noted above, Reed expressed considerable doubts that prohibiting a publication that meets U.S. 106 (1948) U.S. 415 (1963). 21 CIO, 335 U.S. at Id. at Id. at Id. at

9 8 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 these criteria would be constitutional. 25 In order to separate materials produced in the regular course of business and disseminated particularly from specific electioneering communications published widely, Reed appears to be drawing a line grounded in the specific nature of the corporate entity. Those individuals who would receive the kind of publication at issue in CIO are []willing participants in such normal organizational activities and expect some advocacy of governmental policies affecting their interests, and support thereby of candidates thought to be favorable to their interests. 26 A corporation, therefore, is being evaluated by analogy to a voluntary organization: it is an association of individuals with a common purpose. Those who lead that organization are therefore expected to advise the constituent members of those actions they can take up to and including political actions that would further that purpose. This is a narrow holding, because it looks to internal speech, the conversation the corporation has among its members, rather than its engagement with the broader public. A considerably broader approach was articulated in the concurrence by Justice Rutledge, who was joined by three other justices to concur with the judgment only. 27 Rutledge s concurrence evinces a desire to grant considerably broader protection to corporate interests, noting that bloc sentiment is and always has been an integral part of our democratic electoral and legislative processes. 28 As such, he argues, any restriction on speech by corporations and other organizations serves to deprive the electorate of information, knowledge and opinion vital to its function. 29 This evinces the instrumentalist understanding of speech that is integral to a marketplace of ideas conception of the First Amendment s protections, and is at the heart of Justice Kennedy s reasoning in Citizens United. Rutledge s refusal to countenance the broadside and blanketing prohibitions here attempted in restriction of freedom of expression and assembly finds a kindred ear several decades later, and Justice Kennedy s opinion in Citizens United shares the same concerns. 30 Both opinions take seriously the idea that curtailing free speech in the name of guaranteeing free elections is 25 Id. at CIO, 335 U.S. at Id. at 129 et seq. (Rutledge, J., concurring). 28 Id. at 143 (Rutledge, J., concurring). 29 Id. at 144 (Rutledge, J., concurring). 30 Id. at 154 (Rutledge, J., concurring).

10 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 9 fundamentally incoherent. 31 Yet Justice Stevens opinion dismisses this notion outright, and is instead concerned with ensuring that government regulations facilitate First Amendment values by preserving some breathing room around the electoral marketplace of ideas, the marketplace in which the actual people of this Nation determine how they will govern themselves. 32 These conceptions are fundamentally at odds. If, as Justice Kennedy argued, 33 there is no place for government regulation of the marketplace of ideas because the polity must be free to judge for itself the relative worth of ideas, then any attempt to outline appropriate mechanisms by which that market can be regulated will never get off the ground philosophically. The concurrence in CIO certainly gives considerable weight to Justice Kennedy s view of the First Amendment, and the majority opinion offers little by way of an alternative theory. The majority in CIO demonstrated far more concern for the particular qualities of the corporation than did Rutledge s concurrence, which viewed corporations (especially labor unions organized in corporate form) as very real players in the political arena. 34 This understanding was advanced further in NAACP v. Button, a 1963 case in which the Court held clearly that corporations qualified as associations whose speech is protected by the First Amendment. 35 Justice Brennan s opinion for the Court made clear that he also subscribed, in part, to the instrumentalist approach to the First Amendment, when he noted that the First Amendment must protect an organization that makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. 36 Like the majority in CIO, 31 Compare CIO, 335 U.S. at 155 (Rutledge, J., concurring) ( A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate... cannot be squared with the First Amendment. ), with Citizens United, 130 S.Ct. at 908 ( When Government seeks to use its full power... to command where a person may get his or her information... it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves. ). 32 Id. at 976 (Stevens, J., dissenting) (emphasis in original) (internal citations omitted). 33 See id. at 907 (characterizing Austin s permissive attitude towards government regulation as an aberration ). 34 CIO, 335 U.S. at (Rutledge, J., concurring). 35 Button, 371 U.S. at Id. at

11 10 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 however, Brennan was concerned with ensuring that groups could assemble for the purposes of advancing a common agenda, including in the political arena. 37 Thus the corporation itself serves an instrumental purpose, in this understanding: it facilitates the ability of a group to access the public arena or the institutions of government. 38 Justice Kennedy relies frequently and prominently on Button to support the idea that the First Amendment protects political speech by corporations. 39 It is unclear, however, that Justice Brennan s opinion truly supports this broad rephrasing, especially given the end that Kennedy arrives at based on this premise. Brennan was concerned with protecting association for the advancement of beliefs and ideas, especially where that association involved political activity by minority, dissident groups. 40 As such, for Brennan, guaranteeing the speech of corporations involved guaranteeing access. On the narrow facts of the case, Citizens United can be seen in much the same light: a corporation was prevented from spending money to air a documentary in the run-up to an election. 41 But, as Justice Stevens notes, the law at issue did not involve a complete ban: the plaintiff corporation could have used PAC funds to disseminate its speech without restriction. 42 The issue of access is another key point of divergence between the principal opinions in Citizens United. Like Justice Brennan s opinion in Button, Justice Kennedy displays concern that voices are being shut out of the national conversation. 43 Yet Kennedy takes the reason from Button 37 Compare id. at 430 (noting the First and Fourteenth Amendments offer protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends ), with CIO, 335 U.S. at 123 ( It is unduly stretching language to say that the members or stockholders are unwilling participants in such normal organizational activities, including the advocacy thereby of governmental policies affecting their interests.... ). 38 Button, 371 U.S. at 430 (holding a law banning political organization for the purposes of soliciting legal assistance unconstitutional because under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances ). 39 See Citizens United, 130 S.Ct. at 883, 900 (citing Button within discussions of corporate free-speech rights). 40 Button, 371 U.S. at (internal quotations omitted). 41 Citizens United, 130 S.Ct. at Id. at 929 (Stevens, J., dissenting). 43 Compare Button, 371 U.S. at 431, with Citizens United, 130 S.Ct. at 898.

12 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 11 further than Brennan s original argument: where Brennan was concerned with ensuring minority participation, Kennedy takes a more totalizing and egalitarian view. The majority opinion in Citizens United views any and all restrictions on speech as dangerous to democracy: [s]peech restrictions based on the identity of the speaker are all too often simply a means to control content. 44 This creates a broader level of protection than that afforded by Button, which guaranteed the ability of political associations those that are similar to political parties to speak. 45 This notion is echoed by Justice Stevens, who emphasizes the distinction between natural persons, non-profit and advocacy groups, and for-profit corporations. 46 However, for Justice Kennedy, any access restriction is equal under the First Amendment, which does not permit government regulations that distinguish[] among different speakers, allowing speech by some but not others. 47 B. Protecting Independent Expenditures: Buckley and Bellotti In the late 1970s, the Court decided two cases that would eventually serve as the philosophical underpinnings to Justice Kennedy s majority opinion in Citizens United. The first of these, Buckley v. Valeo, was a landmark case in which the Supreme Court upheld limits on direct contributions to candidates while striking down similar limits on independent expenditures. 48 Two years later, in First National Bank of Boston v. Bellotti, the Court struck down a State law that prohibited corporate independent expenditures in the context of referenda. 49 Given Kennedy s emphasis on these holdings as a justification for the holding in Citizens United, it is highly relevant to examine the manner in which these cases handle the question of why independent expenditures deserve protection in their respective contexts. 1. Buckley and Federal Expenditure Limitations. The Court in Buckley makes clear from the start that it believes the First Amendment has considerable instrumental value as a mechanism for the operation of a 44 Id. at Button, 371 U.S. at 431 (noting that the NAACP should receive protection as a political organization despite the fact that it is not a conventional political party because it serves a political end to vindicate the legal rights of members of the American Negro community ). 46 Citizens United, 130 S.Ct. at (Stevens, J., dissenting). 47 Id. at Buckley, 424 U.S. at Bellotti, 435 U.S. at

13 12 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 working democracy. 50 The freedom of speech allows individuals to make informed choices about whom they vote for, an imperative because in doing so they shape the course that we follow as a nation. 51 In the modern era, however, the Court emphasizes the reason that freedom of speech cannot be limited to the mere negative right to be free from government interference with the physical act of speaking: every means of communicating ideas in today s mass society requires the expenditure of money. 52 With this pragmatic turn, the Court inextricably binds speech and spending. In modern American society, the size of one s audience is proportional to the size of one s checkbook. 53 Though it does not say so explicitly, in the background of the Court s reasoning is the important fact that the capability to control audience size, when exercised to prevent a speaker from reaching anyone at all, is effectively a restraint on speech. In Buckley, this reasoning is carried upward by analogy: the Court sees a restriction on the number of issues discussed, the depth of their exploration, and the size of the audience reached as implicit in any restriction on expenditures. 54 The professed anti-corruption interest is insufficient to justify this restriction, as the statute cannot simultaneously be sufficiently broad to adequately guard against corruption while sufficiently narrow to avoid unconstitutional vagueness. 55 A secondary argument that the government should be permitted to equaliz[e] the relative ability of individuals and groups to influence the outcome of elections is quickly undercut, as the Court notes that the government does not have the power to restrict the freedom of some to enhance that of others. 56 Thus, the Court sees no justification for permitting the Federal government to restrict private individuals independent expenditures Buckley, 424 U.S. at 15 ( Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. ). 51 Id. at Id. at Id. at 19 n. 18 ( Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline. ). 54 Id. at Buckley, 424 U.S. at Id. at Id. at 51.

14 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 13 The reasoning in Buckley lends some support to Justice Kennedy s argument that the First Amendment does not provide for a government role in regulating the marketplace of ideas. The Buckley majority clearly believes that the First Amendment does considerable work towards perfecting the mechanism of American democracy, 58 and as such want to ensure that the people have the ability to decide for themselves how to vote, and why. Yet, as noted above, 59 Kennedy uses sweeping language with regards to the First Amendment s protections that go beyond the conclusions of the Buckley majority. In finding that individual contributions can be regulated because of the government s interest in preventing corruption or its appearance, Buckley makes clear that the Federal government may regulate spending to ensure that the integrity of our system of representative democracy is [not] undermined. 60 Buckley therefore stands shy of the strong line that Justice Kennedy advocates in Citizens United, that the government has no role in regulating what ideas are communicated among the citizenry. 61 But it does take a similar view of independent expenditures, seeing no compelling government interest that would permit regulation of that purely individual form of speech. 62 Indeed, the breadth of language used in Buckley to invalidate restrictions on independent expenditures supports the idea that the Court may have been willing to hold similar restrictions on corporations equally unconstitutional. 63 Yet the Buckley Court did not ignore the potentially problematic repercussions of protecting spending identically to speech, 64 a concern Justice Stevens dissenting opinion in Citizens United 58 See supra note 50 and accompanying text (quoting Buckley s discussion of the value of the First Amendment to a democratic society). 59 See infra Part II.A.2 (explicating Justice Kennedy s reasoning in Citizens United with respect to corporate free-speech rights). 60 Buckley, 424 U.S. at See Citizens United, 130 S.Ct. at 899. (arguing that government regulation cannot be based upon distinctions between speakers or the content of speech). 62 Buckley, 424 U.S. at 45, See id. at 48 ( Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. ). 64 See id. at ( To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. ). 13

15 14 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 would later echo. 65 As such, it would be left to a decision more directly concerned with matters of corporate speech to bring the Court s thinking into better focus. 2. Bellotti and Permissible Corporate Expenditures. The Bellotti Court addressed the narrow class of political speech that is produced in the context of referendum elections. In analyzing the First Amendment implications of a Massachusetts law that prohibited corporations from spending money to influence referenda in which they had no material interest, 66 the Court makes clear from the outset that the relevant analysis hinges not on the speaker, but on the speech. 67 But the Court does not sidestep the issue of origin entirely: it first holds that the speech is protected if considered without regard for the corporate identity of the speaker, 68 but then analyzes whether the fact that the speaker is a corporation is sufficient to bring the speech outside of the First Amendment s protections. The form of this analysis is highly relevant: the Court first makes clear that the issue is whether the speech is protected, not the speaker, 69 but after holding that the speech in question is at the heart of First Amendment protection, 70 the Court finds it necessary to consider whether the fact that the speaker is a corporation is material to the disposition of the case. It would have been logically coherent for the Bellotti Court to have merely said, as it does, this speech is protected, and this is no less true because the speech comes from a corporation rather than an individual. 71 This would suffice to dispose of the material question in this case, as originally explicated by the Court. 72 Yet the Court turns to the question of corporate identity, and its conclusions directly implicate the questions that their successors will be called upon to decide in Citizens United. 65 See Citizens United, 130 S.Ct. at (Stevens, J., dissenting) (discussing the distorting effects of wealth accumulation). 66 Bellotti, 435 U.S. at Id. at 776 ( The proper question therefore is not whether corporations have First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the statute] abridges expression that the First Amendment was meant to protect. ). 68 Id. at See supra note 67 and accompanying text (discussing Buckley s version of the correct First Amendment inquiry in that case). 70 Bellotti, 435 U.S. at Id. at See supra note 67 and accompanying text (discussing Bellotti s version of the correct First Amendment inquiry in that case).

16 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 15 The Bellotti Court begins its consideration of the corporate speaker by noting the broad contours of why the First Amendment is valued so highly, and again reinforce its instrumental value in prohibit[ing] government from limiting the stock of information from which members of the public may draw. 73 The Court emphasizes the broad conception that Justice Kennedy will later echo in Citizens United: the government may not regulate speakers or topics in the realm of protected speech. 74 But the Bellotti Court does not truly hold this line, as they are required by the traditional form of the strict scrutiny test to evaluate whether the corporate identity of the speaker implicates a compelling government interest in regulating speech that would otherwise be protected. 75 Though the Bellotti Court finds that the two potential interests advanced in the case, sustaining the active role of individual citizens and protecting minority shareholders, are not relevant, they clearly exempt the context of partisan candidate elections from this conclusion. 76 They do so by noting that Congress may be able to demonstrate the existence of, or the potential for, corruption when corporations make independent expenditures in candidate elections. 77 Justice Kennedy will later explicitly disavow this footnote, 78 but his analysis is difficult to square with the construction used by the Bellotti Court. There, the Justices stated that corporate independent expenditures might be subject to regulation if Congress finds that they give rise to corruption or its appearance. 79 In Buckley, the Court had held that corruption or its appearance was a sufficient government interest to justify a $1,000 cap on individual expenditures, noting that this restriction was acceptable because it still allowed those individuals to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources. 80 More importantly, the Buckley Court noted that the $1,000 cap do[es] not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties Bellotti, 435 U.S. at Id. at 784 5; see also Citizens United, 130 S.Ct. at Bellotti, 435 U.S. at Id. at Id. at 788 n Citizens United, 130 S.Ct. at Bellotti, 435 U.S. at 787 n Buckley, 424 U.S. at Id. at

17 16 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 In Citizens United, Justice Kennedy states as a matter of fact that corporate independent expenditures do not gives rise to corruption or its appearance, 82 and states that while Congress findings otherwise deserve due deference, their remedy must comply with the First Amendment. 83 The statutory system for corporate PAC-funded speech seems to comply with the requirements from Buckley noted above, unless one concludes with Justice Kennedy that that scheme amounts to an outright ban because corporations may not use money from their general treasury. 84 Bellotti and Buckley seem to counsel for a more nuanced reading of the statutory provisions, however: they focus on the impact of the regulation more than the particular structure of the regulatory scheme. Bellotti notes approvingly the language from Buckley that highlights the government s substantial interest in [p]reserving the integrity of the electoral process, 85 even while noting that the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. 86 This construction seems to undermine Justice Kennedy s argument that the government should play no role in regulating the marketplace of ideas. 87 Overall, these two cases serve to support much of Justice Kennedy s argument in Citizens United, but do not do so absolutely. More importantly, both Buckley and Bellotti are highly nuanced approaches to the question of political speech. Buckley draws a line between direct contributions and independent expenditures and powerfully elevates the anti-corruption interest. The Bellotti Court, while permissive of corporate independent expenditures on referenda questions, shows considerable trepidation about the notion that corporate expenditures in the context of candidate elections would be protected in the same way. This reading does not, in the end, support Justice Kennedy s broad assertion that the principle established in Buckley and Bellotti [is] that the Government may not suppress political speech on the basis of the speaker s corporate identity. 88 Rather, the principle from Buckley and Bellotti appears to be that restrictions on corporate political speech must be justified by a Congressional finding that such speech causes corruption or its appearance. It is only with Justice 82 Citizens United, 130 S.Ct Id. at Id. 85 Bellotti, 435 U.S. at Id. at See Citizens United, 130 S.Ct. at (discussing the way in which the First Amendment affects the government s regulatory powers). 88 Id. at 913.

18 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 17 Kennedy s conclusion in Citizens United that such a finding is factually inapposite that the principle he asserts becomes valid. This change is no small matter: Bellotti gives considerable weight to the idea that the anticorruption interest is not to be dismissed out of hand in the context of corporate expenditures for candidate elections. 89 While Justice Kennedy may dismiss this passage from Bellotti as not well-reasoned, it stands as a piece with the remainder of the opinion as an evaluation of how that Court believed restrictions on corporate political speech should be weighed against the First Amendment s protections. C. Defining the Limits of the First Amendment s Protections In the years between Bellotti and Citizens United, the Court considered a number of cases implicating the ability of corporations to speak on political matters, and to do so through independent expenditures. Justice Kennedy s majority opinion holds that the Court return[s] to the principle established in Buckley and Bellotti that corporations speech may not be suppressed, and as such disavows much of the jurisprudence subsequent to Bellotti. 90 Justice Stevens, by contrast, relies heavily on the post-bellotti cases to sustain his argument that the First Amendment permits the government to channel corporate independent expenditures through PACs. 91 As this line of cases is considered, then, closer attention is warranted with respect to how these cases support Stevens reasoning than the majority s. As the Court turned its attention to the questions that arose after Bellotti, the immediate question was clearly whether the holding in Bellotti could be extended to invalidate the statutory restrictions on corporate independent expenditures. The first two major opinions after Bellotti are a study in contrasts: in NRWC, Justice Rehnquist broadly affirms the ability of Congress to regulate corporations differently than natural individuals, 92 while in MCFL, Justice Brennan writes for the Court in finding statutory restrictions on corporate independent expenditures unconstitutional as applied to a non-profit corporation. 93 The tension between these two cases 89 Bellotti, 435 U.S. at 787 n Citizens United, 130 S.Ct. at See, e.g., id. at 930 (Stevens, J., dissenting) (citing Austin, WRTL, McConnell, and MCFL, inter alia). 92 Fed. Elec. Comm n v. Nat l Right to Work Comm n, 435 U.S. 197, (1982). 93 Fed. Elec. Comm n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 241 (1986). 17

19 18 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 would not be resolved until 1990, when the Court decided Austin v. Michigan Chamber of Commerce. NRWC, a relatively brief and unanimous opinion, addressed a narrow issue arising under the statutory scheme regulating corporate fundraising for contributions and independent expenditures. 94 In resolving the question, however, the Court takes time to lay out the philosophical justification for permitting Congress to regulate corporate speech. Justice Rehnquist notes that the special characteristics of the corporate structure require particularly careful regulation and that the Court will defer to Congress judgment as to how that regulatory scheme will be set up. 95 The Court notes that Bellotti did not address the issue of corporate spending in candidate elections, and reaffirms the notion that preventing corruption or its appearance may be a compelling government interest to justify regulating that speech. 96 As such, the Court concludes that the basic statutory scheme that will later be at issue in Citizens United reflects a permissible assessment [by Congress] of the dangers posed by those entities to the electoral process. 97 Justice Kennedy crafts his opinion carefully to keep it in line with this sentiment, noting that Congress may seek to address the danger corporate speech may pose but may not do so by the scheme upheld in NRWC. 98 Moreover, Kennedy argues that NRWC is a case about contributions, not independent expenditures, and is therefore inapposite to Citizens United. 99 Yet at the core of NRWC is the principle that the government can serve the anti-corruption interest by treating unions, corporations, and similar organizations differently from individuals NRWC, 459 U.S. at Id. at Id. at 210 n. 7 ( [T]he Court specifically pointed out that in elections of candidates to public office, unlike in referenda on issues of general public interest, there may well be a threat of real or apparent corruption. As discussed in text, the Government has relied on just this threat in enacting 441b. ). 97 Id. at Citizens United, 130 S.Ct. at 910; NRWC, 459 U.S. at Citizens United, 130 S.Ct. at NRWC, 459 U.S. at

20 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 19 This stands entirely in contrast to Kennedy s view of the First Amendment as broadly prohibiting these distinctions among speakers. 101 At its heart, NRWC is an opinion that views the government as a necessary regulator of the marketplace of ideas, a sentiment later echoed by Justice Stevens. It is deferential to Congress judgments; 102 it sees regulation as essential to protect[ing] the integrity of the electoral process. 103 The broad and summary language used by Justice Rehnquist illuminates how this view influences his understanding of the anticorruption interest, and how different this is from the way Justice Kennedy will later perceive it: that Congress has long been permitted to regulate to prevent corruption, the First Amendment must see the government as a regulatory force in the marketplace of ideas. 104 For Justice Kennedy, by contrast, Buckley drew the limits of the anti-corruption interest at direct contributions, and there it must remain; all questions of philosophical import have been laid to rest. 105 In MCFL, four years later, Justice Brennan wrote for a divided Court and directly approached the question later resolved by Citizens United, but ultimately deciding the matter narrowly, as an as-applied challenge. 106 In so doing, he sharply challenges the notion that Congress can restrict corporate independent expenditures by leaving open the PAC avenue. 107 Brennan makes clear that he values the integrity of the marketplace of ideas an integrity that is best served through free trade rather than through 101 See supra note 87 and accompanying text (discussing Justice Kennedy s formulation in Citizens United of the way in which the First Amendment affects the government s regulatory powers). 102 NRWC, 459 U.S. at 210 ( [W]e accept Congress's judgment that it is the potential for such influence that demands regulation. Nor will we second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. ). 103 Id. 104 Id. at Citizens United, 130 S.Ct. at 908 ( The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here. ). 106 MCFL, 479 U.S. at Id. at 255 ( The fact that the statute s practical effect may be to discourage protected speech is sufficient to characterize 441b as an infringement on First Amendment activities. ). 19

21 20 REGULATING MARKETPLACES OF IDEAS [15-Dec-15 regulation. 108 Though he recognizes that corporations may be subject to different regulation, Brennan conceives of the rationale for such regulation to rely not on the corporate form per se but rather on the unfair deployment of wealth for political purposes. 109 As such, a voluntary political association like MCFL that simply happens to be incorporated does not speak in a manner different from a private group of individuals; its speech therefore receives equally powerful First Amendment protection. 110 This careful approach, considering the nature of the speech, not the speaker, is an echo of the principle outlined in Bellotti. 111 Yet, as in Bellotti, the resulting analysis does not manage to hew to that bright line: Justice Brennan s opinion relies considerably on the particular nature of MCFL in determining what kind of protection its speech should enjoy. 112 This conflicting guidance is read in opposite ways by the two principle opinions in Citizens United. For Justice Kennedy, the rhetoric provides a grounding for the notion that corporations cannot be treated differently than individuals. For Justice Stevens, MCFL s analysis of the nature of the corporation makes clear that the Court endorsed distinctions grounded in the qualities of the speaker. 113 D. Austin and Bans on Corporate Independent Expenditures In 1990, the Court set down a principle that would be resoundingly rejected by Citizens United twenty years later: a State s ban on corporate independent expenditures in candidate elections except those made through special, segregated funds does not violate the First Amendment. 114 Austin relied heavily on the distinction between natural individuals and corporations in holding that the latter could be restricted from speaking in ways that would not be acceptable when applied to the 108 Id. at Id. at 259. But see NRWC, 459 U.S. at ( [T]he special characteristics of the corporate structure require particularly careful regulation.... ) (emphasis added). 110 MCFL, 479 U.S. at 263 ( [T]he concerns underlying the regulation of corporate political activity are simply absent with regard to MCFL. ). 111 See supra note 67 (discussing Bellotti s version of the correct First Amendment inquiry in that case). 112 See, e.g., MCFL, 479 U.S. at 259 ( MCFL was formed to disseminate political ideas, not to amass capital. ). 113 Citizens United, 130 S.Ct. at 955 (Stevens, J., dissenting). 114 Austin, 494 U.S. at

22 15-Dec-15] REGULATING MARKETPLACES OF IDEAS 21 former. 115 For the Austin Court, two interrelated, but distinct, features of the corporate form stood out as being substantive to the question of speech regulation: the fact that corporations are a unique state-conferred... structure that facilitates the amassing of large treasuries and that the money thus acquired has little or no correlation to the public s support for the corporation s political ideas. 116 The fact that the corporate form is a legal construct established by the States is noted by Stevens dissent in Citizens United, but Austin emphasizes it strongly. 117 For the Austin Court, the specific benefits given to corporate entities are what underlie the government s compelling anticorruption interest in regulating their speech. 118 Philosophically, this appears to be a step backwards from Buckley s re-conception of the act of spending as an instrumental component of speech in the modern era. 119 The Austin Court is careful to disavow any notion that it is attempting to level the playing field with its holding, but its aim remains in line with aggressive regulation of the marketplace of ideas. 120 Rather, the Court is worried about the decoupling of the actual political support for speech (measured by the number of individual citizens supporting the underlying idea) from the apparent political support for the speech (measured by the resources available for the dissemination of the idea). 121 To call this decoupling a corruption is taking the word far beyond its original understanding from Buckley: the Austin Court is effectively decrying the corruption of the monetized marketplace of ideas itself, not the corruption (by acquisition of undue influence) of political officials that concerned the Buckley Court Id. at Id. at Compare Citizens United, 130 S.Ct. at (Stevens, J., dissenting), with Austin, 494 U.S. at Id. (decrying the effect of immense aggregations of wealth that are accumulated with the help of the corporate form ). 119 See supra note 52 and accompanying text (noting Buckley s argument that reaching an audience in the modern era necessarily requires the expenditure of money). 120 Austin, 494 U.S. at Id. at Compare id. at 660 ( Michigan's regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth.... ), with Buckley, 424 U.S. at ( To the extent that large contributions are given to secure a political quid 21