The Utter Morass of the Citizens United Decision

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Does this decision support a level playing field in the marketplace of ideas?

The whole point of the constitutional founders was to keep the marketplace of ideas open to all. Had the Supreme Court drawn a parallel with what actually happens in the marketplace of products and the corresponding promotional budgets among the competing products, they may have reconsidered.

A marketplace of products in terms of promotion is not dissimilar to a marketplace of ideas. Imagine a situation in which corporation X dominates a market with a product A, the sales of which are far ahead of its closest competitors, products B and C. A Corporation Y intends to enter this market with a new product D, which is only marginally different from product A. The marketing manager of corporation Y has to make a decision on the size of a promotional budget to raise the awareness of product D.  Every marketing manager knows that the cost of market entry for D will vary immensely depending on whether he/she positions D against either A, B, or C. (In this marketing sense, positioning means investing promotional money to show the difference between D from either A, B, or C). In a large market, the amount of money to position D against A can be so great as to make corporation Y not even try to enter the market, regardless of the validity of product D. (It could, of course, position D against B or C with a reduced budget, but that is not under discussion here.)

The marketplace of ideas, or more specifically, the promotion of ideas in a market, follows the same basic communications logic. Ideas can be ingrained in a population due to culture, history, or political circumstance. To dislodge a commonly held idea among a population requires the promotion of another idea. In today’s world that means money— a lot of it. The point of the above example is to show that an imbalance in the amount of money available can stifle the introduction of another idea. In other words, an imbalance— for whatever reason— in the resources to promote one prevailing idea as opposed to another can be so great as to prevent the dissemination of that idea. Worse, it can discourage even trying, as shown in the marketing instance above. That was never the objective of the First Amendment.

The Supreme Court’s Citizens United v. Federal Election Commission decision actually implied that it was in a conundrum: how to respect the First Amendment while encouraging more political speech and not less. In a certain sense, they sidestepped the inability of the law to disentangle the highly complex situation of the marketplace of ideas today.

Consider, according to the Supreme Court:

“The remedies enacted by law must comply with the First Amendment; and it is our law and tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy.” (Emphasis added).

This indirectly implies that the law, in this case the First Amendment, cannot “remedy” campaign financing. The Court simply decided for more speech, regardless of imbalance.

In Montana v. Western Tradition, which upheld the Citizens United Supreme Court decision, Justice Beth Baker opined that it was not in the government’s interest to equalize “the relative ability of individuals and groups to influence the outcome of elections.” In other words, the courts have no interest in taking sides in terms of the amount of money available to promote one idea over another. But these imbalances exist and can exist for decades and thus prevent the openness of the marketplace of ideas. It is our contention— and that of many others— that the Citizens United decision has made such imbalances potentially worse than ever before. Indeed, time has shown that large corporations have enormous resources to stifle, or even tamper with, competing ideas. Cigarette corporations have supplanted legitimate health concerns for decades; chemical companies have postponed the banning of ozone-producing refrigerants; oil conglomerates may be deliberately postponing awareness of the potential gravity of climate change.

Yes, the Supreme Court is consistent with the First Amendment. But in this instance the Court sidestepped the fact that more speech can also mean less speech when opposing sides are grossly imbalanced in terms of their financing. Restrictions like source disclosure of campaign financing, or the lack of coordination between campaigns supporting a candidate and so-called PACs supporting the positions of the same candidate, do nothing to redress this imbalance when it occurs. Therefore, the Supreme Court’s decision in the case of Citizens United v. Federal Election Commission has failed to safeguard a level playing field in the marketplace of ideas. In fact, one could argue that it has exacerbated the already dominant position of corporations in the marketplace of ideas today.

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