I have identified two profound and perplexing problems that fall squarely within the substantive foci of this Forum. I offer here a few embryonic ideas to spur a conversation amongst us that may chart a path toward actual solutions.
“Money Doesn’t Talk, It Swears” (Bob Dylan)
Various members of this Forum, including its figurative progenitor Floyd Abrams, have succeeded in persuading the Supreme Court to recognize that capital expenditures—cold hard cash—in support of candidates and/or political messages, whether by individuals or corporations, is speech, as in “the freedom of Speech.” As a result, the government cannot regulate or restrict such spending/speech without complying with the First Amendment. In this short column, I will not take issue with that proposition (although others may disagree). Instead, I merely state what strikes me, personally, as rather obvious: both the presence of actual corruption and manipulation of election results, as well as the appearance/perception that such corruption and manipulation exists, seriously undermine the integrity of our self-governing democracy. By “corruption” I refer not only to explicit quid pro quo deals with elected officials, but also to more subtle but corrosive reality (or perception) that the government is working primarily, if not exclusively, to serve the interests of the super-wealthy.1 The widespread loss of faith in the workings of our electoral system undercuts the legitimacy of our elected representatives and their acts, and fosters apathetic disengagement from our political system. In my humble opinion, completely unlimited expenditures on political campaigns pose a genuine threat to the foundation of our democracy2 and warrant a legislative response. But can any restriction on campaign expenditures, by anyone at any time, ever survive constitutional scrutiny?
At our Annual Conference in February, retired Justice John Paul Stevens was asked whether a constitutional amendment is required to overturn or “correct” the Supreme Court’s ruling in Citizens United. In response, he quipped, “Either that, or one more vote.” I do not believe it is realistic to expect either of these contingencies will soon solve this problem. (Nevertheless, Justice Stevens has written a book advocating for the amendment solution.3)
Frankly, I’m not entirely convinced that this is a solvable problem. (And I know others do not see it as a problem at all). That money will continue to flow into political races, no matter what the legal regime, may very well be a fundamental and immutable truth. Nevertheless, I believe that those of us who have dedicated our professional careers to defending “the freedom of Speech” owe it to our fellow citizens to devote our energies to seeking a workable and constitutional solution to this threat facing our democracy. Perhaps we (and the Justices) could rethink whether, in the campaign arena, uniformly-applied restrictions on the sheer amount of expenditures (applicable equally to corporations, unions, non-profits, and individuals) could be subject to less rigorous scrutiny—as a category of historically regulated speech—and can be justified as a context-specific category of non-viewpoint-based “time, place, and manner” restrictions.4 Alternatively, perhaps an argument can successfully be advanced that the maintenance of public confidence in the legitimacy of elections, free from market-driven forces of “manipulation” and “distortion,” is, in fact, a compelling interest.5 Or perhaps some of us can articulate a cogent and easily-drawn bright line separating “media” corporations (the kind referred to in the independent constitutional clause “or of the Press”) from non-media corporations.
Now, I have no doubt that many of you can instantly poke holes in each of these “solutions,” and others of you firmly believe they are all ill-conceived solutions in search of an actual problem. I call upon those of you who, like me, believe that unlimited campaign expenditures is not a viable regime for the long term, to please devote your time and energies to formulate alternative solutions to this problem, while keeping faithful to our shared commitment to defending fundamental First Amendment rights.
We Need to Pay the Watchdogs
Okay, now let’s focus on the folks who have already attained public office. It is, to borrow a phrase, “self-evident” that an active and vibrant press, scrupulously monitoring the conduct of our public servants, is an essential prerequisite to a self-governing democracy. As Justice Byron White said, “Without the information provided by the press, most of us . . . would be unable to vote intelligently or to register opinions on the administration of government generally.”6
However, as all of you know all too well, the “traditional news media,” and in particular the newspaper industry, is struggling financially. Beyond the multiple bankruptcies (Tribune, Media News Group, Journal Publishing) and the demise or selling off of former national chains (Knight-Ridder, Freedom, etc.), the recent news that Digital First Media is shuttering its Thunderdome project and may seek to sell off its newspaper holdings7, all underscore that the newspaper industry is still in search of a new business model to replace its former print-advertising revenue stream. While foundations and nonprofit news organizations have sprung up in response to this crisis, their combined contributions fall far short of completely replacing the former newsroom staffs and, in particular, those devoted to covering local government.8
Okay, so here are two proposals; the first, an appeal to beneficent philanthropic citizens. Those of you who have close connections with the individuals who have benefitted greatly from the success of various online enterprises (e.g., Google, Yahoo!, Facebook, Amazon, Tumblr, and Twitter, to name only a few) should prevail upon these deservingly successful and enormously wealthy individuals to establish a new charitable endowment, which might humbly be called the “Foundation to Preserve Our Democracy.” The foundation—which can be funded by a commitment of, say, 0.1 percent of these companies’ annual revenues—will have no governmental involvement (because unlike Great Britain and other foreign countries where the government provides financial support for the press, our First Amendment raises thorny issues when the government writes the press’ paychecks, notwithstanding CPB). The foundation I envision will make grants exclusively to newspapers across the nation specifically to provide for ongoing day-to-day coverage of city councils, school boards, the state capitol, police, jails, and courts.
I realize that these corporations and the individuals who are at their helm have already donated huge sums and their own personal time to address a variety of global problems, for which these individuals rightly deserve to be thanked and honored. But now, more than ever, these corporations and individuals need to commit philanthropic resources, energy, and attention to saving local news coverage of state and municipal governments—to provide the wherewithal for professional full-time journalists to fulfill the press’ constitutional mandate to monitor and hold accountable our public servants. Without such financial underwriting, local newspapers simply cannot provide such coverage; and without such coverage, our democracy simply cannot function.9 Because the rise of the Internet has seriously challenged the economic viability of the newspaper industry while simultaneously creating hundreds of dot com billionaires, it is particularly appropriate that these individuals dedicate a small fraction of their financial resources to buoying and supporting a free press. This was the notion of civic duty embraced and championed by the Luces, Schulzbergers, and Grahams of yesteryear. It is incumbent on our Forum’s members to instill the same ethos of civic leadership in today’s generation of new media owners.
The second, though by no means mutually-exclusive solution, is partly “legal.” In my view, it is long past time to permanently retire the outdated and now illogical “cross-ownership” ban that prevents broadcasting companies from owning a newspaper in the same city or market as it owns a TV station.10 With so many varied “voices” in the “marketplace of ideas,” from cable TV, satellite providers (both TV and radio), the Internet, and mobile services, the decades-old restriction on newspaper ownership by broadcasters is, simply put, nonsensical. One way to pay for the intrepid “beat” reporters who will keep local officials accountable is to remove this antiquated barrier to financial investment in the local newspaper.11
As I said at the outset, I’m confident that the brighter and more capable among you will quickly identify multiple flaws with each of my proposed solutions above. And that is fine. But consider this an invitation, if not a calling, to do more than simply dismiss these ideas. Please, devote your time, energy, and creativity to help devise better answers to these perplexing questions. I invite you to continue this conversation in the pages of Communications Lawyer, and elsewhere. It is incumbent upon us—attorneys committed to the principles of freedom of speech and of the press—to lend our perspective and talents to addressing these profound challenges to the health of our democracy. After all, if we do not do so, who will?
1. I realize, of course, that only a couple months ago five Justices held that “the Government’s interest in preventing the appearance of corruption is . . . confined [exclusively] to the appearance of quid pro quo corruption [and therefore] the Government may not seek to limit the appearance of mere influence or access.” McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434, 1451 (2014). As will be obvious as you read on, I respectfully disagree.
2. The Supreme Court has previously recognized the need for Congress to take prophylactic steps to ensure that “confidence in the system of representative Government is not . . . eroded to a disastrous extent.” Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 556 (1973).
3. Justice Stevens proposes removing from the First Amendment’s protection, “reasonable limits” on campaign spending. See Richard Wolf, Former Justice Stevens Wants to Change Constitution, USA TODAY (Arp. 21, 2014), http://www. usatoday.com/story/news/politics/2014/ 04/21/justice-stevens-supreme-court- constitution-book/7872695/.
4. The government may, without violating the First Amendment, prohibit loud amplified speaker trucks (even to convey political messages) in residential neighborhoods after 11:00 p.m., because such restrictions, in contrast, are not “content based.” See Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949) (“That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open.”). The Supreme Court, however, has held that restrictions on campaign spending, even if applied equally to all donors (a/k/a speakers), are content-based and therefore not entitled to the lower scrutiny applied to ordinary “time, place or manner” restrictions. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 339 (2010).
5. See Burson v. Freeman, 504 U.S 191 (1992) (upholding, under strict scrutiny, a ban on electioneering activities within 100’ of a polling place, and recognizing that the government’s interest in protecting “the right to vote in an election conducted with integrity and reliability” is a compelling one).
6. Cox Broad. Co. v. Cohn, 420 U.S. 469, 491-92 (1975).
7. See Ken Doctor, The Newsonomics of Digital First Media’s Thunderdome Implosion (and Coming Sale), available at http://www.niemanlab.org/2014/04/the-newsonomics-of-digital-first-medias-thunderdome-implosion-and-coming-sale/.
8. See, e.g., Mary Walton, Investigative Shortfall, American Journalism Review (Sept. 2010), available at http://www.ajr.org/Article.asp?id=4904 (reporting that between 2006 and 2009, financial contributions to journalism nonprofits totaled $141 million, while during roughly the same period newspapers reduced their spending by $1.6 billion each year).
9. See, e.g., Sam Schulhofer-Whol & Miguel Garrido, Do Newspapers Matter? Short-Run And Long-Run Evidence from the Closure of the Cincinnati Post, National Bureau of Economic Research at 2 (Mar. 2009), available at http://www.nber.org/papers/w14817.pdf (demonstrating that even small newspapers “can have a substantial and measurable impact on public life”).
10. See Amendment of Sections 73.34, 73.240 and 73.636 of the Commission’s Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, 50 F.C.C.2d 1046, 1975 WL 30457 (1975).
11. Here, too, I am aware that this seemingly straightforward proposal may appropriately be characterized as “tilting at windmills.” See, e.g., Gautham Nagesh, “FCC Withdraws Proposal to Relax Media-Ownership Rules; Proposal Would Have Relaxed Ban on Owning Multiple Media Outlets in Same Market,” Wall St. J. (Dec. 16, 2013).