Money, Politics & the Constitution – Panel Two Questions and Answers Transcript

Panel 2: Do Voters Have First Amendment Interests at Stake in the Financing of Political Campaigns?

Questions and Answers

 

Monica Youn:

I’m going to now open it up to the floor, but the panelists should also feel free to chime in if they want to respond to a floor comment.

Deborah Hellman:

So this I take it is a sort of friendly amendment to Roberts’ way of thinking of things and responds also a little bit to Geoff. Which is, instead of thinking of elections as serving a particular purpose—what’s the purpose of elections you said, and the other institutions, classrooms, courtrooms all have a purpose. That strikes me as misguided in the sense that I don’t think of elections or democracy of having a purpose but instead instantiating a value. That is, why the instrumental conception? Because if we think of it that way, I think we get very different rules, or very different conceptions of the rules, the speech rules that might apply if we think that democracy instantiated the value that everybody’s interests matter equally, or something along those lines, then we’re going to get a particular conception, and that’s going to make it very different from a courtroom.

All the examples you have of a courtroom, I mean, yes we don’t want to do all those things, but that’s because a courtroom aims at arriving at truth or something like that. And I don’t think of elections as doing that but instead instantiating the value that everybody matters equally. And if there is any institution that mirrors that, it’s going to be harder to find because most institutions actually are aimed at achieving a particular purpose. They are more instrumental, I think, than democracy is. The only thing that possibly comes close in my mind is something like kindergarten which, maybe yes, it has a purpose—to socialize children—but, in part, it instantiates the value that everybody matters equally, and that we do see something like equal time, everybody gets one speech and we’re going to go around the classroom.  I mean it does kind of look like that.

Floyd Abrams:

Two questions for Burt.

First, with respect to the knowing falsehood issue. We decide that everyday.  It is possible to prove knowing falsehood. Certainly Justice Brennan thought so, in New York Times v Sullivan. And libel lawyers do it all the time. My own reaction is that there is a serious First Amendment argument that we shouldn’t trust the government. There are the courts to make a decision about knowing falsehood with respect to a candidate for public office, and that is a First Amendment argument. I’m interested in your reaction.

The second, Burt, I’m sort of surprised what it is you say you want to look at over the next few years or whatever in terms of what you’re going to do with that information if you got it. You said, first, you want to know what our corporations are likely to do, and, second, you want to know the effects of spending under the new law. Suppose we were to find out that Sam is right, his suppositions or conclusions that corporations don’t do a whole lot. Maybe they spend a little more money. Maybe it’s more on one side then another. That doesn’t seem to affect the balance a whole lot. And suppose we find out that the effect of the new rule is you find out that it doesn’t have much of an impact in dealing with social problems, which as Sam said, seems to raise some big time First Amendment issues. But if you were satisfied that not a whole lot of new money was being spent, and it hasn’t seemed to have an awful lot of impact on dealing with social problems, would you conclude from that therefore you don’t much care, or that the result is not that important after all?

Burt Neuborne:

Let me answer the second question first. Because it’s the easiest one. Yes. If, in fact, Citizens United is much ado about nothing, and that this will not have a significantly deleterious effect on the functioning of American democracy, either because corporations do not choose to use the right that they are given, or when they do use the right they are given it does not distort. When I said distort, I don’t mean that they are putting in false views, I mean that what you have is an enormous overbalancing of one set of views over another, so you don’t get a real chance as a voter to be able to make a reasoned judgment.

If that doesn’t happen, then I think it’s no harm, no foul. I don’t care if they want to spend their money this way if it doesn’t adversely affect American democracy. I think that the major unanswered question is something that can’t be answered now because the game has been changed. Up until now, corporations were inhibited from doing this, first because it was illegal in many places. Second, because there was a major social sense that it was inappropriate to do. And now that that’s been lifted because there is the validating influence of a First Amendment decision saying: it’s the American way to spend your money this way. And, secondly, because they are now going to see that they can gain advantage. We don’t know what’s going to happen in the future.

I think we have to watch. I have no reason to say this other then my respect for Kennedy, but my sense is that if you made a showing to Kennedy that this was eroding significant aspects of American democracy, he would think his vote was wrong. His bet is Sam’s bet: They’re not going to spend all that much, and if they do it’s not going to have all that much influence. And if that’s right, then I don’t know that we have to get too excited.

Floyd Abrams:

I’m not going to make this a colloquy, but why wouldn’t you give Kennedy the credit for believing what he said, which is that he doesn’t know. He didn’t make a prediction. His view is that political speech, which is generally protected under the First Amendment, particularly during an election season, and that the fact that it’s a corporation didn’t matter. That’s what he said.

Burt Neuborne:

I think a little parenthesis at the end of his opinion: In the absence of a showing that it does matter. I think his adjudication is classic First Amendment adjudication, you don’t regulate unless there’s an overwhelming showing of need. He would stand here and say, where’s the overwhelming showing of need? There are all of these predictions and fears that something might take place in the future. Let’s see if it takes place in the future. If it takes place in the future, I think he rethinks.

Your first one about falsehood. The application of libel since Times v. Sullivan, it seems to me to prove that we can’t distinguish truth from falsity. It is a morass, it is a swamp. It costs vast amounts of money, those cases are sometimes decided one way, sometimes decided another way. The fact that they are settled all the time indicates that the litigants themselves know that it’s a crapshoot and that it’s impossible to do this. I would be much more radical, I think, than you. I would have eliminated the cause of action in civil law, because you can’t adjudicate it well. But I’m not ready to import it across into politics. Given the history of how badly it has fared in ordinary civil libel, it’s just something that we don’t know how to do well.

Geoffrey Stone:

I want to make one additional comment about the libel point, the false statement point.  Which is that the reason I threw that out is because its designed to test the concept of exceptionality because, clearly, in general public discourse, the government is not allowed to punish false statements of fact that are not libelous.

But in a trial you are liable for perjury, and the question is: What do we mean by exceptionalism? There are courts, of course, who upheld the laws that make it a crime to make false statement of facts in political campaigns even though nobody is libeled.  And the question, then, is: does that now take on greater force given the fact that we’re saying that elections are separate and special and maybe more like trials than public discourse.

Robert Post:

I think the answer to the question you raise is: We mean by exceptionalism that the regulations of speech are decided by reference to what we regard as the purpose or, in Deborah’s terms, the value of the particular institution.

And so you wouldn’t ordinarily analogize it to a trial, you would analogize it to what it is, and that in turns would provoke a debate about what the purpose is of elections. And so forth and so on.

Geoffrey Stone:

The problem is, there are two purposes for elections that we’ve been very comfortable with. And they point in different directions. One purpose is to aggregate the preferences of the voters, and that’s a mechanical task on Election Day. And those countries that have gone over to this notion of an election period, recognize that this aggregation of the preferences—the snapshot—is what elections are for, and they regulate accordingly and that would yield one set of principles.

The other is that it is the most focused heightened moment of public engagement with the values of our democracy. It is citizen self-government in its purest form because it’s the only time that you can address people and get their attention on the issues of the day, except in truly exceptional moments, like healthcare or that sort of thing. But other than that, this is it. And they yield different conclusions because the purposes are different. One if about self-governance, and the other is about figuring out who is going to be the secretary of whatever after election day.

Robert Post:

What about a third purpose, which is to say: You imagine elections as a recurring institution that connects the electorate to the government to have certain legitimating effects. So it’s neither the be-all or the end-all of democracy, which is public formation generally, nor is it merely preference aggregation, but it’s a repeat player game in which you establish a relationship, and if the rules of the game are such that it’s failing at that purpose, then you have a problem.

Monica Youn:

I am staging an intervention on behalf of Marty Redish, who has been very patient with his question.

Martin Redish:

I do want to make a comment and then ask a question. The comment is that this concept of electoral exceptionalism creates an interesting sort of personal irony for me, because many, many years ago when I first started arguing that commercial speech deserved First Amendment protection, I was met with a barrage of responses: that’s not what the First Amendment is about; the First Amendment is about making us more informed voters. That’s the essence of the First Amendment. Harry Calvin, Alexander Meiklejohn… and now I’m hearing that the period of the election is so exceptional that it’s even shot past the First Amendment, that it’s no longer controlled by it, though, as for the cases Rick cited, there are pretty much an equal number of cases going the other way.

My question is this: even if we accept for purposes of argument the notion of this electoral exceptionalism, I’m concerned that it doesn’t come in a neat, separable unit, that there’s going to be an enormous spillover into general debate. Sam’s account of what goes on in England, he didn’t seem to find as frightening as I did. I’d like to ask Sam and Robert and Rick whether they think that the British system that Sam described is an acceptable, logical outgrowth of the concept of electoral exceptionalism, or at some point does the First Amendment play any limiting role?

Sam Issacharoff:

I have the New Yorker view, which is: there will always be an England, it will be there, it’s been relatively stable, they had to execute a few kings and stuff, but basically, they worked it out. And one of the reasons this works there is that they have a parliamentary system, they have a prime minister, not a president, they have nobody elected to the national office independent of the party slates, it has a logic to it. I find it extraordinarily difficult to import that logic to the U.S., where you have candidate-centered elections, where you have a strong First Amendment tradition. England didn’t have a Bill of Rights until only very recently.

My view, Marty, is not that this is horrifying because I go to London and I’m not scared. You have to look the right way at intersections. This is just a different political structure, and my only point was if we want to start pushing the idea of an election period, understand that it’s going to run up against a lot of our First Amendment values, which viewed this election process from these two guises of aggregation and also as heightened speech arena. And I’m not sure that our First Amendment could tolerate that.

Michael Waldman:

I wanted to ask the panelists what they saw potentially as the rights or interests of the voters in an electoral exceptionalism model. It seems to me, for example, even using some of the factors Geoff Stone talked about, that there is a time period; and it’s the time period by which voters must make up their minds. And there is a zero-sum game if the communication with voters—as it has been until perhaps recently—is through 30-second ads on broadcast television, which again is a limited good. And a number of other ways in which the interests of voters may be best enhanced by thinking in electoral exeptionalism terms. We’ve been talking very much, again, about the speakers – either the independent speakers or the candidates – but do the voters have a distinct First Amendment value, and how does that play into this idea?

Burt Neuborne:

I think the definition would be making sure the voter has tolerably adequate raw material to make an autonomous choice about who to vote for, which is why I worry about huge amounts of corporate spending. I know that it’s subject to a viewpoint criticism, but, interestingly enough, it’s designed to try to allow the voter to make a viewpoint choice as between viewpoints without being subjected to one viewpoint massively just before the election under a setting in which the rules are always going to be skewed to that one viewpoint getting a maximum exposure just before the election without the voter having a chance to hear something else.

I don’t want to exaggerate that model. We don’t live in a world in which people are let out of their houses and hear only one thing. And it may well be that my fears are going to be unfounded because this is not likely to occur. But I think it will occur undoubtedly in certain local and state elections. We will see zoning, environmental protection where a local company has a vast economic stake in the outcome of a particular setting. It’s inevitable that they’re going to spend a lot of money and lay it in the election to try to sway it one way or the other.

How to get the balance, I don’t know—maybe public financing. Public financing would be better if you wound up with both sides being able to have a tolerable shot at getting their message across. But if we don’t have public financing, and only one side has a tolerable shot at getting the message across, then I don’t see how democracy has any integrity left anymore. It’s not the result of an autonomous voter voice. It’s the result of an ideological barrage. And I don’t know how democracy survives in that kind of setting without people just giving up and not bothering to vote.

Monica Youn:

I’m going to let Rick have the last word.

Richard Pildes:

I’m sorry to take the last word. But two points I wanted to make. One very small one in response to Marty’s concern. Many First Amendment theorists rush to the slippery-slope kind of concern: Where will this all go? I will just point out that we have had regulation of corporate and union participation on both contributions and spending for 100 years, and there’s been no effort to extend that into the general sphere of public debate in the U.S. It’s not even proposed anywhere legislatively as far as I know. So the American cultural and legal traditions are very very deep here, and I’m not particularly worried about the spillover concern.

But I think the deeper point I want to make is in response to Sam. Sam said that elections have two different purposes, and that makes the problem of thinking about a distinct electoral debate complex. First of all, I would say that there are probably at least three of these purposes and maybe more for elections. It’s not just the aggregation or deliberation kinds of purposes, but, fundamentally, elections are designed to empower the government that people are able to accept and believe in. And that entails in part, I think, believing that the people you’re putting into office are there making their best good-faith judgments about what policy ought to be, not that they’re bribed or, having their judgment distorted.

Also, on top of that, any interesting social institution is complex and has multiple purposes. I mean we talk about schools, are schools socialization institutions? Are they creating autonomous critical thinkers? What’s the balance between those purposes? So the fact that there may be multiple purposes for complex social institutions like elections doesn’t seem to me to begin to be a reason to not have public debate about what those purposes ought to be, which ones ought to be given priority.

I would think if anything the answer to the complexities of these purposes is that we have a political debate and resolve this in one way, say through legislation in Congress. It ought to take a very powerful, dominating single purpose of the institution to be strong enough for the courts to step in and say that, because that purpose has been violated, there’s a constitutional violation. It seems to me the very complexity of the purposes of elections means that this is what we debate as part of our self-understanding of what the point of elections is, and that courts ought to play less of a role, not more of a role.

Monica Youn:

I want to thank everybody for just a fascinating debate.