Citizens United: A Freedom of Speech or Freedom of the Press Case?

Michael McConnell, in his Yale Law Journal article “Reconsidering Citizens United as a Press Clause Case,” notes both leading politicians and the press strongly opposed the Supreme Court decision:

The President of the United States denounced the decision to the Justices’ faces at his 2010 State of the Union address. His 2008 opponent, John McCain, called it the “worst decision ever.” The Democratic Party is pledged to reverse it by constitutional amendment if necessary. Prominent newspapers attribute to it virtually every excess of the campaign finance system, whether or not the practices were authorized by the decision or would have been lawful even without it. 

But these aren’t the only reasons to support the Citizens United decision. Michael McConnell argues that both the Supreme Court and its critics looked at the case the wrong way:

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. 

I encourage students debating the federal election law topic to read this law review article and to research the broad issues of federal regulations that limit political discussion for and against politicians and political positions. McConnell notes:

It is important to underscore that Citizens United was about the production and dissemination of a documentary film critical of a candidate for office, and not about contributions to a candidate, party, political organization, or political action committee (PAC). As Justice Stevens commented in his dissenting opinion, the “natural textual home” for the right to produce and disseminate a documentary is the freedom of the press. Whether the government may forbid publication of opinions about officials and candidates is at the very core of the Press Clause. 

McConnell continues:

In the particular context of Citizens United, a focus on freedom of the press—rather than “speech” more generally—would foster analytical clarity in two ways. First, it would help to differentiate the act of publishing one’s opinions about a public official or candidate from the act of contributing money to a candidate or political party. The former is an exercise of freedom of the press; the latter is not. Second, focusing on freedom of the press would simplify the analysis as to whether for-profit businesses should be understood as within the scope of the freedom. Whatever doubts there may be about a business corporation’s right to speak, assemble, petition, exercise religion, or object to an establishment of religion, there can be little doubt that a business corporation can operate a newspaper or produce and distribute a film. The vast majority of the Court’s press cases involve for-profit corporations, such as the New York Times Company or the Cleveland Plain Dealer, and no one, even in dissent, has ever suggested that corporate status mattered in those cases. 

McConnell argues that campaign finance issues would not have played a role in the Citizens United decision if the Supreme Court had focused on press freedoms rather that speech issues. Campaign finance reform is an important issue, just not the issue of Citizens United. McConnell provides his views on complex federal election regulations:

Unlike some defenders of Citizens United, I am not hostile to efforts to reform our system of campaign finance, which is a disgrace. I believe the current system favors incumbents and breeds an unhealthy collaboration between government and powerful entrenched economic interests, both labor and corporate, at the expense of small business, ordinary citizens, free enterprise, and the forces of economic change. I find the majority’s sunny dismissal of the corrupting influence of independent expenditures wholly unpersuasive.

McConnell’s earlier proposals for campaign finance reform are spelled out in an 1997 WSJ oped, “A Constitutional Campaign Finance Plan.”

Giving state and federal agencies power to enforce complex campaign finance legislation opens the door to all sorts of search and seizure efforts to investigate firms, organizations, and individuals who write, speak, and discuss politics and political reform issues. State and federal campaign regulations are often opaque and most individuals and small groups choose not to hire lawyers to advise them on what kinds of political discussion and activities are supposed to be reported to state and federal agencies.

The recent campaign finance news from Wisconsin seems to be a politicized hunt for anyone and everyone who might have influenced the last or may influence the next Wisconsin election. See “Wisconsin Political Speech Raid” in the WSJ, or this report on the WSJ story.

Eric O’ Keefe, director of Wisconsin’s Club For Growth and one of the groups being targeted, said that he knows of at least three of the targets who have had their homes raided. During the raids, law enforcement officers confiscated computers and files.

If Wisconsin debaters choose to discuss these issues as part of their affirmative case for federal campaign finance reform, they may have their computers seized as well.