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.