Former Justice Stevens Suggests the Government Should Be the Nation's Debate Moderator

Speaking in Little Rock, Arkansas, last night, retired Supreme Court Justice John Paul Stevens predicted that his former colleagues will soon be compelled to reconsider their decision in Citizens United v. FEC, the 2010 decision in which they lifted restrictions on political speech by corporations. Stevens' criticism of Citizens United—from which he vociferously dissented, warning that it would "undermine the integrity of elected institutions across the Nation"—is not surprising. But his reasoning is:

[Stevens] pointed to televised debates when moderators try to allow candidates equal time to express their views. He said candidates and viewers wouldn't like it if there were an auction giving the most time to the highest bidder.

"Yet that is essentially what happens during actual campaigns in which rules equalizing campaign expenditures are forbidden," he said.

One problem with this comparison is that debate moderators may (or may not) strive to give candidates equal time, but they are not legally required to do so. Another important difference: A single televised debate is just one part of a broader public discussion about the merits of electing one candidate vs. another; the debate's sponsors do not try to regulate what candidates, their supporters, or their critics say outside this particular forum. In Stevens' analogy, by contrast, the government is the moderator, trying to make sure that every speaker has a fair opportunity to be heard and that no one gets to talk more than anyone else. For reasons that should be obvious, the Supreme Court has long held that the First Amendment does not allow the government to perform this function, which requires subjective judgments that would invite favoritism. As Justice Elena Kagan noted in a 1996 law review article, it is well established that "the government may not restrict the speech of some to enhance the speech of others." She called this "the Buckley principle," after Buckley v. Valeo, the 1976 case in which the Court rejected limits aimed at "equalizing campaign expenditures" by putting a ceiling on them. (Last year, in Arizona Free Enterprise Club v. Bennett, it overturned a state system that was designed to achieve the same result through taxpayer subsidies.) In her article, Kagan, who joined the Court after unsuccessfully defending the speech restrictions at issue in Citizens United as the Obama administration's solicitor general, explained the rejection of "equalization" this way:

All the laws directed at equalization that the Court has considered, whether classified as facially content based or content neutral, raise questions as to the motives of the enacting legislatures. Campaign finance laws like those in Buckley easily can serve as incumbent-protection devices, insulating current officeholders from challenge and criticism. When such laws apply only to certain speakers or subjects, the danger of illicit motive becomes even greater; for example, the law in First National Bank v Bellotti, which barred corporations from spending money in referendum campaigns, almost surely arose from the historic role of corporate expenditures in defeating referenda on taxation. Similarly, a right-of-reply law like the one in Tornillo—applicable only to political candidates, albeit to all of them—may have stemmed not from the desire of officials to enhance the quality of public debate, but from their wish to get the last word whenever criticized. If this law did not quite prohibit seditious libel, it came close. And the must-carry rules in Turner may have emerged more from the yen of politicians for local publicity than from their wish either to preserve free television or to enhance public discourse. All these examples suggest the same point: there may be good reason to distrust the motives of politicians when they apply themselves to reconstructing the realm of expression.

Allowing the government to serve as the nation's debate moderator would mean rejecting the Buckley principle as well as Citizens United and entrusting Congress with powers the Framers wisely denied it.

Previous coverage of Citizens United here. More on Stevens and freedom of speech here.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Lost_In_Translation||

    He said candidates and viewers wouldn't like it if there were an auction giving the most time to the highest bidder.

    Ron Paul viewers might have loved the chance to bid for time, since the moderators seemed determined to give it to the other candidates for free.

  • Aresen||

    If you can't trust the government to be fair, who can you trust?

    /snark

  • JW||

    Wise and Respected Elder believes that political activity without the guidance of his sage counsel is irresponsible and thus, should be prohibited.

    News at 11.

  • Almanian's Evil Twin||

    What a useless fuck. I'll cheer the day he dies. Yeah, I said it.

    Fuck You, "Justice" Stevens, you dried up old fuckstick authoritarian prick.

  • mustard||

    Thanks for showing what the level of discourse has become without bipartisan government management.

    I don't know about you, but I'd prefer an ounce of Blue Stilton in the campaign season to a gallon of Cheeze Whiz.

  • Brandon||

    Oh goody, the idiot concern troll is back.

  • Bill Turner||

    @mustard - "In his "Crime Against Kansas" speech, Sumner identified two Democratic senators as the principal culprits in this crime—Stephen Douglas of Illinois and Andrew Butler of South Carolina. He characterized Douglas to his face as a "noise-some, squat, and nameless animal . . . not a proper model for an American senator."

    Butler beat the shit out of him with a cane.

    You're right, I miss the discourse of old.

  • Brandon||

    Can't really say it any better than that. You're much better than that goody two-shoes Almanian.

  • R C Dean||

    Thank God he is no longer on the bench.

    Yet that is essentially what happens during actual campaigns in which rules equalizing campaign expenditures are forbidden.

    Among other things, there were never (AFAIK) any rules equalizing campaign expenditures. There were rules capping contributions and limiting speech in various ways, but I defy Mr. Stevens to produce a single law that limited exependitures by campaigns.

  • plu1959||

    This.

    Whatever happened to the days when old men just sat in rockers on the front porch?

  • Invisible Finger||

    That was before the Federal Reserve inflated away significant portions of their retirement savings. Now they have to continue to shill for dollars.

  • Randian||

    Thank God he is no longer on the bench.

    Not like it would make a difference, though.

    Anyway, Justice Stevens is 5000 years old and was dismantled by Scalia in CU. The fact that Stevens' doesn't think it fundamentally silly to let a person publish a critical book, magazine, newspaper article, CD, movie, et. al. around election time means he failed fucking civics.

  • Tulpa the White||

    You're missing a not somewhere. I hope.

  • Adam330||

    If everyone's voice has to be equalized, then I want to get as much air time as Anderson Cooper. And as much print space as the NYtimes.

    Oh wait, you say, equal time is only for legitimate serious candidates. Well who decides that...at that point, how is our system any different from Russia's or Iran's, which technically have elections, but only government approved candidates can get on the ballot or get access to tv and newspapers (in truth, I'm not sure that we're that far from them right now in that regard).

  • Anonymous Coward||

    at that point, how is our system any different from Russia's or Iran's, which technically have elections, but only government approved candidates can get on the ballot or get access to tv and newspapers.

    For people like John Paul Stevens, that's the entire point. To have the appearance of contention, but to make certain the outcome is determined well in advance by TOP MEN.

  • wareagle||

    wow, where would we be if not for people with lifetime appointments to jobs where they are accountable to no one telling us how to live...

  • R C Dean||

    Sadly, wareagle, probably worse off.

  • Sharon Stone||

    Agreed, without a Judical branch who the fuck knows what the Executive and Legislative branches would have become by this point. Though that does not excuse the Judical branch's shit job at trying to interpret the constitution over the last 100 years.

  • Tulpa the White||

    In several cases the exec and leg branches passed blatantly unconstitutional laws only because they thought the judiciary would strike them down.

    Bush II claimed that's why he signed McCain Feingold, for instance.

  • RPR2||

    stfu Stevens

  • Paul.||

    [Stevens] pointed to televised debates when moderators try to allow candidates equal time to express their views. He said candidates and viewers wouldn't like it if there were an auction giving the most time to the highest bidder.

    Jeebus this is weapons grade stupid.

    Is the FEC also going to choose the debating points, format the questions and control the camera angles?

    The televised political debate is not a good forum to vet out your candidate. Letting your candidate speak on his own is usually enough rope to let him hang himself.

  • Paul.||

    I award Justice Stevens no points, and may God have mercy on his soul.

  • mybarber||

    I recall the American revolution was in part , funded by rich men and political outsiders.Ben Franklin's newspapers carried the Patriot cause with no equal time to George III

  • Sharon Stone||

    Why the hell does the focus have to be on televised debates? Rarely does the conversation/debate even leave premeditated talking points and right now our problems can't be fixed with talking points.

    The candidate's resumé, current platform and past voting records as a legislator are clearly much better indicators of how much stock they put into what they actually say on the campaign trail.

  • wareagle||

    but that would force the media to, you know, report and that means work which is icky. Far better to toss puffball questions at your favorite and gotchas at the other guy, then spend the next two days navel-gazing about the "performance" of each.

    If elections were about resumes and voting records, Obama would never made it to IA, much less to the Oval. And Hillary might not have won in his absence, either.

  • ||

    Forget about the media, think of how the general public would react if they had to READ something. It would be madness.

  • Mickey Rat||

    "[Stevens] pointed to televised debates when moderators try to allow candidates equal time to express their views. He said candidates and viewers wouldn't like it if there were an auction giving the most time to the highest bidder."

    Even assuming that the government is capable of being perfectly impartial (a who watches the watchers problem). Practically, scarcity of resources says this is impossible. After all, those debates he seems so fond of often exclude minor but legitimate candidates. There is no way the government can enforce a utilitarian equality, it will choose favorites.

  • lightning||

    For those who hate Stevens. Bravo. Biggest piece of human waste on the planet. Honestly, I dislike this guy more than any other government figure (and considering our level of corruption that's saying something). Why? I was forced to read his opinions in college. Enough said.

  • ChrisO||

    Stevens is a great argument against lifetime tenure on the bench.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement