Chip Babcock Communiqué

Chip Babcock Communiqué Politics, Influence and The Right to Free Speech

Congress passed a law which made it a crime for certain speakers (corporations and unions) to publish information advocating the election or defeat of a candidate for federal office in the weeks immediately prior to the election. The law was "an outright ban [on speech] backed by criminal sanctions," as the U.S. Supreme Court said in finding the statute unconstitutional under the First Amendment. The case was Citizens United v. Federal Election Commission.

Last week, the editorial board of a prominent newspaper called for the decision to be overturned or "at the very least" limited, saying that the decision was "disastrous." Really? This is the same company that has been a champion of the First Amendment but now wants to overturn a case that turned back the government's efforts to limit political speech. Why?

It is said by the newspaper and other opponents of the Citizens United decision that it allows "huge sums of money" to be spent on political advertisements, which gives rise to "corruption or the appearance of corruption" in the words of Justice Ginsberg, who voted last week to stay a lower court ruling from Montana which refused to follow Citizens United. But government limits on speech have always been justified by labels, in this case, "corruption."

But the label masks what is a fundamental distrust of the electorate. Voters will be corrupted, it is said, by "the cash unleashed" by the decision, as the paper said. But why is it that the money spent by one speaker is any more corrupting than speech by the candidate himself or her political party?

Were the Iowa caucuses "corrupted" because the "Romney" Super PAC (purportedly made possible by Citizens United) publicized flaws in the candidacy of Newt Gingrich? Were South Carolina voters "corrupted" when the "Gingrich" Super PAC attacked Romney? While decrying "negative ads," no candidate has claimed the elections have been corrupted.

Here's a news flash: You can overturn Citizens United and there will still be massive amounts of money spent on elections. Surely that doesn't mean the contests will be corrupted.

The media, which one would expect to be celebrating Citizens United, is almost uniformly against it. Take this comment last week by Richard Hasen in Slate: "The greatest danger of super PACs is not that they will influence the outcome of elections, but that contributions to these groups will skew public policy away from the public interest and toward the interest of the new fat cats of campaign finance."

But the First Amendment does not allow the government to silence one group of speakers because they might "skew" an issue. My goodness, does anyone remember Citizen Kane? There was a "fat cat" who tried to skew issues, including an election. He was also a newspaper publisher. Would it be thinkable that the government could regulate the content of a newspaper just prior to an election EVEN IF the newspaper was published by a corporation and advocated the election of the publisher/candidate? Not likely.

The Citizens United case has other benefits for the media, aside from upholding the right to speak. Bloomberg reported earlier this month that "Swing-State Super-PAC Cash Spreads to Local Stations," noting that broadcasters are attracting record political advertising revenues.

Maybe that additional cash can fund some more investigative journalism. I, for one, continue to believe that more speech is good and that efforts to restrain it in the name of the "public good" are bad.

— Chip Babcock is a partner at Jackson Walker. He can be reached at cbabcock@jw.com.