More is less: Ted Olson on Citizens United

I saw Ted Olson and David Boies talk about the Citizens United decision at the Aspen Ideas Festival a couple of months ago.  Olson likes the decision, and he was passionate and funny in its defense.  “The more speech we have, the better,” he said.  And who can disagree?  The antidote to bad speech is good speech, marketplace of ideas, etc.

It wasn’t until I was on my way home, esprit de l’airplane, that it occurred to me to think about the followup case, Arizona Free Enterprise Club vs. Bennettdecided a year after Citizens United with the same five justices in the majority.  In that case, the Court found unconstitutional an Arizona law that provided government funds to publicly funded candidates allowing them to match any spending by a self-funded candidate exceeding a specified cap.  Here the Court managed to reason that adding more speech, funded by the state, added up to less speech.  They argued that a wealthy candidate whose every ad was matched by an equally well-funded opposition ad would refrain from campaigning at all — the self-funded candidates so inconfident in the strength of their ideas, apparently, as to prefer silence to both camps getting equal time.

It’s pretty starkly different from Olson’s let-a-hundred-flowers-bloom philosophy.  The Court called the Arizona law a “burden” on free speech, though of course it in no way prevented self-funded candidates from spending and speaking.  Unless you take the view that free speech responded to is effectively cancelled or suppressed, precisely the opposite of Olson’s attitude.  I wonder what he thinks about this decision?  Is the right to free speech a right to be heard, or a right to drown out?

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5 thoughts on “More is less: Ted Olson on Citizens United

  1. Jon Awbrey says:

    If money is speech and speech is free then money is free.

    But it ain’t, so it ain’t.

    That’s logic.

  2. Tom Church says:

    “in the morning” = “in the majority”?

  3. Steve Reilly says:

    “They argued that a wealthy candidate whose every ad was matched by an equally well-funded opposition ad would refrain from campaigning at all — the self-funded candidates so inconfident in the strength of their ideas, apparently, as to prefer silence to both camps getting equal time.” Could you quote in the decision where it says that? At any rate, looking through the court’s reasoning, that’s just a really bad way of summarizing all their points. Here’s the decision for people who want to judge for themselves: http://www.supremecourt.gov/opinions/10pdf/10-238.pdf

    Anyway, the “burden” question was dealt with here, with a bit more nuance than you’re giving it credit for:

    “Once a privately financed candidate has raised or spent more than the State’s initial grant to a publicly financed candidate, each personal dollar the privately
    financed candidate spends results in an award of almost one additional dollar to his opponent. The privately financed candidate must “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on his own candidacy. 554 U. S., at 739. If the law at issue in Davis imposed a burden on candidate speech, the Arizona law unquestionably does so as well.”

  4. JSE says:

    Tom — fixed!
    Steve Reilly — sorry, should have linked directly to the opinion! And yes, the Court spends quite a bit of time saying that the law constitutes a burden to the exercise of the right, but I can’t say I find it really nuanced; they just say that the word “burden” should be used to describe this law, which, at least for me, doesn’t really match the plain meaning of the English word. But of course sometimes words have specialized legal meanings! And I should also say that I think a lot of the reasoning in this case rests on an earlier one, which is indeed similar in many ways, Davis v. FEC (2008), which characterizes as a “burden” the situation where you can spend as much as you want and say whatever you like, and if you spend above a certain amount, the state allows other candidates a looser spending cap. To my ear, this isn’t a burden in the sense of “preventing or making it harder to exercise a right,” the way a voter ID law is. But I recognize that precedent counts for a lot and maybe it’s Davis I really have a quarrel with.

  5. Jon Awbrey says:

    The answer to the problem of decibels is more decibels …

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