Academics and lawyers continue to parse Citizens United v. Federal Election Commission, which as topic de jour for the scholarly crowd may earn a title as this decade’s Bush v. Gore.
Kathleen Sullivan, former Stanford Law Dean, uber-litigator, and one of the smarter campaign finance scholars around, attempts in her recent Harvard Law Review piece (read full article here) to locate both the majority and dissent views in established strains of First Amendment scholarship:
Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands.
Sullivan then presents an argument for regulations that she believes should satisfy both sides.
But, well, I’m not convinced.
Sullivan places the Kennedy majority opinion into the Court’s First Amendment “libertarian” tradition. Fair enough. The dissent, she claims, belongs in another legitimate strain of First Amendment doctrine, the “egalitarian” one.
The dissent is thus congruent with Court doctrine allowing access to public fora for fringe groups. I can’t see how this is correct. I don’t see that public forum-type First Amendment cases are analogous to “affirmative action” for speech (the speaker still needs to come up with the resources to speak) in the way the now-defunct Fairness Doctrine was. And I don’t see how Stevens’ call for deference to all political regulation is either “egalitarian” or even an articulation of a theory of the First Amendment—just his position that there’s no constitutional barrier to regulation here. I don’t see him advocating a positive egalitarian campaign finance view, such as those activists who advocate “leveling” the playing field. This view really comes through in his 60 Minutes interview, by the way.
Sullivan takes her analysis further, by contending that in the wake of Citizens United, both egalitarians and libertarians should embrace rulings that abolish contribution limits (both amount limits and source restrictions) provided there is robust disclosure. In the abstract, that’s pretty cool. But she doesn’t seem to be sufficiently concerned, in my view, about the use of “disclosure” as an indirect means of hobbling speakers one doesn’t like. That, it would seem, would be a goal egalitarians could embrace.
The truly interesting post-Citizens United issue is how to identify that activity that is sufficiently contiguous to political speech to warrant disclosure. This wasn’t much of an issue before, because if a group was collecting money and making expenditures pre-Citizens United, it was probably a political committee (or should be) or one of those rarest of species, the MCFL-corporation.
What we now need is a tool to sort sources of funding into two piles, one that warrants disclosure and one that doesn’t. The “purpose” of the funding test seems nice until you think about it—how is purpose going to be ascertained? Maybe a better approach is to pick a big threshold amount, and ask groups making expenditures to report all sources of funding above that amount from the previous six months. In any case, supporting “disclosure” as Sullivan does begs the question—disclosure of what?
