Nexus: Chapman's Journal of Law and Public Policy

The recent decision in Citizens United v. Federal Election Commission (Citizens United) is hardly the huge blow to democracy that its naysayers purport it to be. Rather, it is an affirmation by our highest court of the fundamentals of what political free of speech means; namely, the ability by any person or association of persons to honestly express their views and opinions before an election. Recognizing that democracy is ultimately founded on the will of the people and not the money spent in financing political speech, the Court in Citizens United made the right decision in holding that limits on corporate financing of political speech before an election are inconsistent with the tenets of the first amendment.

Starting with the strongest and most evident argument against the decision in Citizens United, it is commonly argued that the Citizens United decision opens the door to the deep pockets of corporate special interests, enabling them to unduly influence public opinion before an election.

Throughout history, there have always been individuals or groups with the ability to exert a political influence far beyond their actual numbers, whether through the strength of their arguments, charisma, or pocketbooks. Therefore, the first question in addressing this argument is, should strict "majority rule" be an essential characteristic of democracy? Should voters be left in relative isolation to make decisions on who or what to vote for? Obviously, that would make little sense. Most people would find that free and open political discussion is a fundamental aspect of democracy. However, the ability to discuss also carries with it the ability to persuade and to influence, and there is a line that most people would agree should not be crossed when it comes to persuasion and influence if democracy is to be preserved. Clearly, threats, deceptions, outright bribery, and the like would cross that line, but does spending more money (among other resources) also qualify as crossing the line? In other words, when does the will of the people cease to truly be the will of the people?

Arguably, money in and of itself does not cross that line. However, money combined with deceit or any other such unscrupulous act can be quite detrimental to the democratic process. It is important that that distinction be made. Imagine rather, that money is an asset similar to charisma. A person with the right appearance, speaking ability, and charm might have quite an advantage over another person who lacks such graces. Would it be wrong of the former to take advantage of his gifts anymore than it would for an individual who has amassed his own wealth and decided to spend it in the pursuit of political office, or to act to influence the political decision making of his fellows? Truly, in order to embrace the concept of democracy it is necessary to assume that people are capable of making their own independent and informed decisions despite the influence of others. So long as those influences are merely informative in nature and not coercive, what is the harm in allowing those with strong financial resources to make use of those resources? To do any less would be to deny the protections of the first amendment to those persons based solely on their financial and organizational status.

The argument has also been made however, that money buys access. In order to level the playing field, every issue or candidate should be given equal access to the voting public so that a decision can be made mostly based on the issue or candidate itself. Imbalances of financial resources between opponents makes equal access difficult to achieve. While an admirable ideal, it's unrealistic to believe that there will ever be "equal access" for candidates and proponents among disinterested voters. However, among those who take a particular interest in any issue or candidate it can be said that the issue of equal access is moot. With easy access to a wealth of information today through the internet and other electronic media, an interested voter can quite easily find out all the information necessary to make an informed decision on practically any issue. The problem of access lies on the voter side, not the candidate side. The issue then is really that our system of democracy allows uninformed, disinterested voters to be persuaded by political advertising and to give those voters an equal voice in government, rather than the fact that some individuals or groups have deeper financial pockets and are able to reach a wider audience with their propaganda.

Lastly, what is the distinction between a corporation and an individual that warrants such a limitation on political speech before an election? Corporations themselves are entities entirely composed of and controlled by individuals. It makes more sense then, that they should enjoy the same privileges and rights as individuals than not. To restrict the speech of a corporation is to restrict the speech of individuals.

But perhaps, it is argued that while corporations may be composed of a vast pooling of resources and individuals, they are in fact controlled by a select few individuals who would then wield a vastly disproportionate amount of political influence. This argument is not without merit, as typically corporations are not democratic entities. However, while not being democratic entities in and of themselves, for profit corporations are still subject to the "democratic" forces of the marketplace. They may have their financial influence significantly reduced or cease to exist entirely should the market determine that their actions have "crossed the line." It would not be too difficult to envision a corporation suffering financially because it produced film or other speech in support of an unpopular candidate or issue.

The Court in Citizens United made the right decision because it is the one that is most consistent with the principles of political free speech and of democracy. It should be recognized that informative as opposed to coercive speech is a fundamental right of any entity or individual regardless of their organizational or financial status. To hold otherwise would lead down a slippery slope whereby other classifications of persons would be denied their right to participate in the democratic process.