It will be tough reversing Citizens United
Here the court held that Citizens United, a group which had produced an anti-Hilary Clinton documentary, had the right to run ads promoting their documentary and its anti-Clinton message. It had been held at the lower court that because the documentary and thus the ads advocated against a candidate, they were restricted under campaign finance rules. Earlier, however, the court had held earlier that it was OK for Michael Moore to run ads for Fahrenheit 9/11, his movie which strongly advocated against re-electing George W. Bush. The court could not find the fine line between these that the lower court had held, but the result was a decision that has people very scared because it strips most restrictions on campaigning by groups and in particular corporations. Corporations have most of the money, and money equals influence in elections.
Most attempts at campaign finance reform and control have run into a constitutional wall. That's because when people talk about freedom of speech, it's hard to deny that political speech is the most sacred, most protected of the forms of speech being safeguarded by the 1st amendment. Rules that try to say, "You can't use your money to get out the message that you like or hate a candidate" are hard to reconcile with the 1st amendment. The court has made that more clear and so the only answer is an amendment, many feel.
It seems like that should not be hard. After all, the court only ruled 5-4, and partisan lines were involved. Yet in the dissent, it seems clear to me that the dissenters don't so much claim that political speech is not being abridged by the campaign finance rules, but rather that the consequences of allowing big money interests to dominate the political debate are so grave that it would be folly to allow it, almost regardless of what the bill of rights says. The courts have kept saying that campaign finance reform efforts don't survive first amendment tests, and the conclusion many have come to is that CFR is so vital that we must weaken the 1st amendment to get it.
With all the power of an amendment to play with, I have found most of the proposed amendments disappointing and disturbing. Amendments should be crystal clear, but I find many of the proposals to be muddy when viewed in the context of the 1st amendment, even though as later amendments they have the right to supersede it.
The problem is this: When they wrote that the freedom of the press should not be abridged, they were talking about the big press. They really meant organizations like the New York Times and Fox News. If those don't have freedom of the press, nobody does. And these are corporations. Until very recently it wasn't really possible to put out your political views to the masses on your terms unless you were a media corporation, or paid a media corporation to do it for you. The internet is changing that but the change is not yet complete.
Many of the amendments state that they do not abridge freedom of the press. But what does that mean? If the New York Times or Fox News wish to use their corporate money to endorse or condemn a candidate -- as they usually do -- is that something we could dare let the government restrict? Would we allow the NYT to do it in their newspaper, but not in other means, such as buying ads in another newspaper, should they wish to do so? Is the Fox News to be defined as something different from Citizens United?
I'm hard pressed to reconcile freedom of the press and the removal of the ability of corporations (including media ones) from using money to put out a political message. What I fear as that to do so requires that the law -- nay, the constitution -- try to define what is being "press" and what is not. This is something we've been afraid to do in every other context, and something I and my associates have fought to prevent, as lawsuits have tried to declare that bloggers, for example, were not mainstream press and thus did not have the same freedom of the press as the big boys. There will be efforts to say that we won't define who is press and who isn't, but rather will control how you spend your money. That indeed the NYT can say whatever it wants in its megabuck newspaper, but it can't buy ads to say the same thing in another newspaper. I'm certain that the corporate money will quickly find loopholes in such distinctions, creating shell corporations which meet whatever definition of media corporation is used, and promoting their messages. Unlike the old world, today creating a media business is much easier. Even traditional media, eager to get campaign dollars, will find loopholes. They will sell shares which include the right to write today's editorial message, if that is what is allowed. They will find loopholes that neither you, nor I can think of, because they have billions of dollars at stake that depends on finding them. And to stop them, we will try even harder to define what is press, and what is political speech. When the law tried to stop the rich from donating to campaigns they found other ways to make it happen, and they will continue to.
Consider as well what some of the amendments say on their face. They give congress the power to control how money is raised and spent on campaigns. On the campaigns of the people trying to replace them. Many of these amendments don't try the hard task of defining fairness in the rules. They would technically make it constitutional to pass a law saying "No member of a party starting with D may spend more than $100 on their campaign." Ridiculous, but legal. If it does happen it won't be anything so unsubtle. But people have passed huge numbers of laws which give the appearance of fairness but in fact benefit their party over opponents. Redistricting is a great example, along with poll taxes, reading requirements and many other examples that litter history. Do we really want to give congress the power to regulate the rules of elections? They will change the rules to protect incumbency, and their party, I can assure you. And forget about minor candidates.
Is there an answer to the corruption of politics by all this money? It's not easy. My current best hope lies in a plan I am working on to exploit the fact that the media world is in the process of being turned upside-down by internet media technologies. In 2008, the presidential campaigns spent, it is estimated, some $500 million on broadcast ads -- the majority of what they raised, and only $50 million on internet campaigns. This will change in the decade to come. Today, candidates become beholden to special interests primarily for one purpose -- to buy broadcast ads. As that changes, I hold out hope for the prospect of making it no longer necessary to raise huge sums to run a workable campaign. We can't do this yet, but in the future we might. It may be, that if this happens, that the river of money will find somewhere else to flow and buy influence. But perhaps this can be reduced. It would be a shame if we revolutionized the economics of media and advertising and didn't manage to change their role in politics for the better. More on this later.