Reconsidering Citizens United as a press clause case.

Author:McConnell, Michael W.

ESSAY CONTENTS INTRODUCTION I. THE FREEDOM OF THE PRESS PROTECTS THE RIGHT OF A GROUP LIKE CITIZENS UNITED TO PRODUCE AND DISTRIBUTE A DOCUMENTARY CRITICIZING A PUBLIC OFFICIAL A. The Citizens United Decision B. The Analogy to Mills v. Alabama C. Media Organizations 1. Precedent 2. History 3. Pragmatic Reasons II. THE FREEDOM OF THE PRESS DOES NOT PROTECT THE RIGHT OF ANYONE TO MAKE CONTRIBUTIONS TO CAMPAIGNS A. Contrasting the Press Clause Approach to the Majority's Prohibition on Speaker-Based Distinctions B. Contributions, Expenditures, and Publications C. Significance of the Press Clause D. Perverse Consequences of the Contribution-Expenditure Distinction CONCLUSION INTRODUCTION

Citizens United v. FEC (1) is one of the most reviled decisions of the Supreme Court in recent years. The President of the United States denounced the decision to the Justices' faces at his 2010 State of the Union address. (2) His 2008 opponent, John McCain, called it the "worst decision ever." (3) The Democratic Party is pledged to reverse it by constitutional amendment if necessary. (4) 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. (5) It has become shorthand for corporate domination of politics. (6) It has few defenders among legal scholars. (7)

Part of the criticism is well-deserved. The opinion is overly long and unfocused. It seems to stretch for unnecessarily broad interpretations of free speech law, beyond what the parties argued or what the facts demanded. On its own motion, the Court ordered reargument of the case on theories broader than those put forward by the plaintiffs, entailing the overruling of precedents that the plaintiffs had sought to distinguish. (8) The opinion itself was written with a broad brush, turning its back on several plausible narrower grounds for decision. At the first oral argument, counsel for Citizens United suggested the Court resolve the case on statutory grounds, namely that the ninety-minute documentary was not "express advocacy" under the Bipartisan Campaign Reform Act (BCRA). (9) At the reargument, Justice Stevens suggested that nonprofit corporations be allowed to broadcast electioneering publications, so long as they were funded only by individual contributions. (10) Perhaps most persuasively, it is likely that a pay-per-view offering is not a "broadcast" communication within the meaning of BCRA-although the advertisements for the movie presumably were. Instead, the Court embraced a theory with wider, and perhaps unforeseeable, implications-that speech restrictions treating some speakers differently from others are suspect. (11) Already the Court has been forced to cut back on one of the broader possible implications of that theory, holding that it does not extend to non-citizens. (12) But the most important flaw- a flaw to which the parties and the lower courts contributed--was to analyze the case under the wrong clause of the First Amendment.

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. (13) Whether the government may forbid publication of opinions about officials and candidates is at the very core of the Press Clause. To be sure, in recent decades, the Supreme Court has tended to collapse the various expressive freedoms of the First Amendment (apart from the Religion Clauses) into an undifferentiated "freedom of expression," or more often, simply "freedom of speech." (14) But there are historical and practical reasons why the freedoms of speech, press, assembly, and petition were separately enumerated.

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, (15) and no one, even in dissent, has ever suggested that corporate status mattered in those cases. (16) I take that as settled and correct law.

If the Court had analyzed the case under the Press Clause, it could have avoided muddying the waters of campaign finance law governing contributions, which presents different constitutional considerations, and it would have sidestepped the controversy over whether for-profit corporations, in general, have constitutional rights. Instead, the Court's analysis would have been confined to the less fraught question of whether the protections of the Press Clause apply to corporations that are not regularly engaged in the business of journalism. That is an entirely different question than the ones it spent so many pages discussing. If the case had been analyzed under the Press Clause, it should not have been so controversial, and would not have the far-reaching consequences for campaign finance law that so concern its critics. Properly analyzed, the decision in Citizens United-though not its reasoning--is almost incontrovertibly correct.

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. In the past I have proposed campaign finance reforms that would avoid these pitfalls, serve better to democratize elections, and pass constitutional muster. (17)

This Essay, however, is not about campaign finance reform. It is about the right to publish criticisms of public officials. It addresses how the facts of Citizens United would be analyzed under the Press Clause. The argument has two parts. In Part I, I will argue that long-established principles of freedom of the press strongly support the conclusion that the organization called Citizens United had the constitutional right to prepare and disseminate a documentary critical of a public official and candidate, even during the election season. There is no serious doubt that some corporations--media corporations--have a constitutional right under the Press Clause to editorialize about candidates while the voters are making up their minds. The Supreme Court so held, without dissent on the merits, in Mills v. Alabama, (18) and neither the Citizens United dissenters nor any critics of that decision dispute either the reasoning or the result of Mills. With that backdrop, the dispositive question becomes whether the protections of the Press Clause are confined to a certain set of actors, namely the institutional press (however defined), or whether it protects an activity: publishing information and opinions to the general public. Only if the former, narrower, interpretation is valid can Citizens United be wrongly decided. Although the narrow interpretation has received some support in recent years, (19) and Justice Stevens appears to embrace it in one sentence and a footnote in his Citizens United dissent, (20) it is in conflict with the great weight of precedent, (21) departs from the unequivocal historical meaning of the Clause both before and for more than a hundred years after its enactment, (22) and--perhaps most decisively--requires a legally enforceable line between "press" and others, which is inherently unworkable and probably would not even produce a different result in Citizens United itself. (23)

Part II briefly explores the implications of deciding the case this way for campaign finance reform more generally. The freedom of the press rationale for Citizens United would confine its effect to the right of groups to publish their own views about candidates and would not extend to contributions, which would continue to be governed by the somewhat illogical and counterproductive rules of Buckley v. Valeo. (24) The Press Clause rationale would provide no occasion for the majority's broader holding prohibiting all speaker-based distinctions, which would seem to portend invalidation of long-standing laws prohibiting corporate contributions to campaigns. Indeed, the freedom of the press rationale provides a more solid basis for the Buckley distinction than Buckley itself provided. Nonetheless, reformers might well wish to question whether the distinction between contributions and independent expenditures does more harm than good, and explore other avenues for improving the system.

  1. THE FREEDOM OF THE PRESS PROTECTS THE RIGHT OF A GROUP LIKE CITIZENS UNITED TO PRODUCE AND DISTRIBUTE A DOCUMENTARY CRITICIZING A PUBLIC OFFICIAL

    1. The Citizens United Decision

      Under the Bipartisan Campaign Reform Act of 2002 (BCRA), (25) it is illegal for...

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