Nexus: Chapman's Journal of Law and Public Policy

The landmark Citizens United v. Federal Election Commission case decided in January this year can been seen as a testament to free speech. The people of the United States have a fundamental belief in the right to free speech. However, it is also a fundamental principle that free speech is to be limited. A quote from Justice Holmes which has often been paraphrased as “Shouting fire in a movie theatre” is the famous example of speech that is limited. (Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249 (1919).) The idea that speech is limited is as fundamental as free speech itself. In Citizens United, the court partially overruled the McCain-Feingold Act which intended to limit “electioneering communications”. As far as free speech goes, no one enjoys having it limited, but I think the court ruled incorrectly in Citizens United. The general public is increasingly unhappy with their elected officials, and in the upcoming election the focus should be on candidate policy and not advertisements. Citizens United places the focus back on advertisement when the country was trying to move away from it.

The current advertising in the California gubernatorial election is an example of free speech that in my opinion should be limited. It seems to me that, more and more, every election and campaign is focusing on advertising, particularly negative advertisements on opposing candidates. The recent decision in Citizens United, seems to mirror my observation. Advertisement costs are very expensive to candidates. One of the primary reasons why a concerned citizen, who wishes to run for a political office in order to change his community for the better, does not run for political office is that they are unable to compete with the superior fundraising skills career politicians possess.

Since the trend in todays elections is to focus on advertising, there is little debate and discussion on the current issues between candidates. As an example, in the current California gubernatorial election, I have a clear dislike of both the primary candidates stand because advertisements are short, and there is an incredible amount of negative advertisements countering candidates. In order to learn about where candidates stand on issues and policy, I must research the candidates myself on the internet. Most people do not have the time or ability to perform the research I did in order to understand the positions of the candidates. Instead, they rely on the advertisements they see and that is affecting their perceptions of the candidates. David Sider of the Sacramento Bee writes, “After months and millions of dollars spent berating each other on radio and TV, Whitman and Brown are less likable than ever. Both of them are viewed more unfavorably than favorably by the electorate. . .” (http://www.sacbee.com/2010/09/28/3061175/with-race-dead-even-stakes-are.html)

If political advertisements were regulated to the point where they are nonexistent, it will force candidates to participate in town hall meetings, debates, and other discussion forums in order to establish themselves to the voters. This is much better for candidates in that they will not have to allocate so much time to election fundraising, and it will enable the voters to gain a clearer picture of their candidates without negative advertisement. Additionally, as a side effect, while in office, elected officials will not have to spend as much of their time fundraising and will instead be able to perform the job which they were elected to do the entire time.

Coming back to the current California gubernatorial election, there are only 3 debates scheduled, the first one having taken place Tuesday, the next on Saturday, and the last one on October 12. In such an important and close election there will only be three debates. This is a serious problem. The candidates have spent months advertising on television and other media, but will spend a few hours over 3 days debating the issues. The debates should be the key to an election and not advertisements. Before Citizens United, under the McCain-Feingold Act, campaign reform was headed away from advertisements and large and expensive campaigns. Limits were being placed on amounts to be raised, and outside advertising sources were also being limited. Now, because of the Citizens United ruling the country is headed back into advertising as the primary method of delivering a candidates message.

The Supreme Court ruling shows the importance advertisements have on our elections. Many voters are affected by it, and draw their opinions on the candidates from them. The Supreme Court recognized this and ruled that limiting these advertisements goes against the free speech the First Amendment grants. I think the Supreme Court ruled wrongly. By opening the door to more advertisements and taking the limitations off advertisement, the Supreme Court is supporting the current advertising campaigns. I think the Supreme Court should have taken the more logical approach and attempt to shift campaigns away from advertisements. Yes, limiting free speech is not favored by the American people, but there is the fundamental understanding that it can be limited for the benefit of the public. I think this is one of the cases where limited free speech will help the public.

The other major impact of the Citizens United ruling is that it now makes it even more difficult for non-career politicians to compete for office. Recent history in California shows us the people are unhappy with their elected officials remaining in office for long periods of time. California prop 93, that was voted on in the 2008 election, proposed allowing an elected State legislative official to remain in the same office, up to a maximum of 12 years. California voters rejected this proposition. (http://www.lao.ca.gov/ballot/2008/93_02_2008.aspx) I ask you, how will new potential legislators compete against career politicians who fill vacancies using their superior election campaign fundraising skills in order to dominate the advertising? The answer is: they can’t. Political elections have blossomed into huge money and time sinks. The fact of the matter is, career politicians won a huge victory in Citizens United and the general voting population suffers as a result. In order to run for office you must be able to raise large quantities of money simply to compete for the position. Most people who are qualified for public office lack the ability to fundraise and gather so much money. As a result, they will not bother running for election and the career politicians will remain in power. Sadly, the Supreme Court does not see it this way, but popular opinion opposes the holding in Citizens United. Roughly 80% of people polled opposed the Citizens United holding. (http://www.washingtonpost.com/wp-srv/politics/polls/postpoll_021010.html)