Under the broad heading of Living in a Citizens United World, the NY Times has a longer-than-usual editorial entitled “When Other Voices Are Drowned Out.” The key sentence is this: “But when outside spending is unlimited, and political speech depends heavily on access to costly technology and ads, the wealthy can distort this fundamental element of democracy by drowning out those who lack financial resources.”
The Times’s reasoning confirms a point I have made several times, including here and here, on this blog: those, like the Times, who are concerned that “the wealthy” can “distort” democracy by “drowning out” those with fewer resources need to understand that their complaint lies with the Court’s decision in Buckley v. Valeo, not the more recent Citizens United decision. The most famous and most cited passage in all of campaign-finance law, from Buckley, is the following:
But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” New York Times Co. v. Sullivan, supra at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. The First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors,365 U.S. 127, 13 (1961).
It is this reasoning from Buckley that directly holds unconstitutional precisely the position that the Times editorial today advocates. Those who hold the view the Times does need to understand that their real complaint is with Buckley. Put another way, if Citizens United were overruled tomorrow, the problem that concerns the Times would remain essentially the same. The Times editorial should really be titled Living in a Buckley v. Valeo World.