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. Bennett, decided 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?