July 08, 2009

Pildes: Citizens United and Disfavored Speakers

Rick Pildes sends along this guest post:

    There' s an essential, foundational question underlying campaign-finance regulation and the Citizens United case that I don't think has been adequately appreciated. I would like to generate some insight and discussion about it. The question is whether it is or should be permissible for government to decide that certain speakers can be disfavored in the context of regulating campaign contributions or spending. Note that this is a different kind of justification for regulation than either of the two most commonly debated: anti-corruption or Austin-like equality justifications. The paradigm for testing this question is foreign donors or spenders. Current federal law bans foreigners from both contributing to candidate and from making independent expenditures for election communications. I assume there is no issue about the first part of this provision. But is the spending ban constitutional? Should it be? If so, why?

    If we take the Bellotti view, then it would seem this ban is unconstitutional. Bellotti says that it's not the speaker whose First Amendment rights are being protected in that decision, so the question is not whether foreigners have First Amendment rights under the US Constitution. Bellotti says that more debate, whatever the source, is a First Amendment value because of the right of listeners (Americans) to hear the message. The more, the better. In addition, there's a strong view within the Court that independent spending can never be corrupting, by definition. So again, on that view, it would seem this ban on foreign spending would be problematic.

    On the other hand, if this ban is indeed constitutional, or if it seems it ought to be, then what follows? Assuming the above doctrinal points, on what principle could this ban be justified? It would have to be, it seems, because there are certain sources of information/spending that can legitimately be treated as "not properly part" of the American electoral process. This is not because of a corruption concern, or at least, not the kind the cases yet recognize. And it's not because of any general equality concern. It's because the Constitution would permit Congress to recognize that some speakers, some sources, can legitimately be disfavored in regulating election speech.

    If that's true, then the question is what principle defines the category of properly disfavored speakers? The initial, intuitive one would seem to be those outside the American democratic process, legitimately. Other than foreigners, how should that category be defined? Does it include corporations, which of course are not voters. If not, why not? I don't have any immediate answers to these questions, but they seem to me unavoidable and essential as the Court revisits the foundational issues in the relationship between the First Amendment and campaign-finance regulation.

Posted by Rick Hasen at July 8, 2009 08:25 AM