Citizens United v. Federal Election Commission will remain the subject of debate for a long time. Despite the fact that I recognize the need to control expenditure on campaigns and on the influence of entrenched corporate interests, I am sensitive to the dangers to free speech when regulation may subject corporations to criminal penalties for expressing political views. I live in a country that is about to have a general election, and much of what we know will come either from print media or from ‘party political’ advertisements that many will not watch. Public debate is damped down at the expense of the kind of deliberation that makes for good government.
With all that said, we should welcome the efforts of Senator Charles Schumer (N.Y.) and Representative Chris Van Hollen (Md.) to impose further requirements on corporate campaign expenditures. I oppose efforts to limit speech (except in carefully limited, necessary cases), but I wholeheartedly support disclosure requirements, including forcing CEOs to appear personally in advertisements that their companies pay for. Indeed, I have a difficult time imagining any disclosure requirement, however onerous, that would not be perfectly legitimate. And failure to disclose or inaccurate statements in the context of disclosure can be punished as a crime. Lawyers know that there’s always more than one way to skin a cat, and Congress is finding a better, more efficient and less dangerous way to regulate indirect campaign finance because of the decision by the Supreme Court in Citizens United.
This puts me in what Stanley Fish calls the principled camp of First Amendment jurisprudence, along with Justice Brandeis and perhaps Justice Holmes (as well as the Citizens United majority). I do not see my support for disclosure requirements as inconsistent with that view, however. With the power of speech comes responsibility. And disclosure insures that speakers can be held accountable for their statements. It seems reductionist to me to argue that freedom of speech necessarily implies that disclosure cannot be required, and even those of us who supported the majority decision in Citizens United (with reservations) should applaud a requirement that political speakers be honest about who they are.