“The decision in Buckley is somewhat schizophrenic,” Thai said. The decision in Citizens United v. FEC (2010) comes from a century-old argument made by writers like John Milton who said a free marketplace of ideas, including negative speech, brings forth the best ideas.
In Schwarzenegger v. Entertainment Merchants Association, the First Amendment was found to be blind to various types of free speech. Thai said Citizens United evolved from free speech cases like Entertainment Merchants to apply the same free speech principles to campaign financing.
Quoting the Supreme Court, Thai read the Citizens United opinion and said, “The First Amendment does not allow political speech restrictions based on a speaker’s ... identity.”
This ruling makes the free speech of spending money on campaigns: content agnostic, medium agnostic and speaker agnostic. However, Thai said the Citizens United ruling is not as broad as people think.
“It does not green light outside spending of Super Pacs,” he said. “What it does do is enable corporations to contribute.”
Criticisms of the Citizens United case abound. Thai said if campaign finance spending borrows its principles from an economic philosophy of a marketplace of ideas, then problems of those economic principles may permeate campaign finances, as well.
“Just like over concentration problems in the economic market, if you have a lot of money to spend, you can saturate the media market and buy a pretty big megaphone,” Thai said. “He who has the biggest megaphone may not have the best ideas, and the market may become distorted.”
To end his lecture, Thai turned to Bluman v. FEC (2012) to point out further Supreme Court inconsistencies.
“The majority actually believes that the identity of a speaker can’t be ignored,” he said. “In Bluman, the court upheld a lower court decision that bans foreign campaign contributions. The decision was unanimous with no explanation.”