Citizens United is bad law—the right to speak is not the right to be heard

I've read all the opinions in Citizens United but have never read any of the earlier law on campaign finance reform and no authorities in recent years on free speech.  So, although I think I sorta understand where we are, I don't know much about how we got here, which means I can't say if Citizens United added a little or a lot to the power of money in politics.  Ezra Klein says here that big corporations already have so much political power and so many ways to influence elections that Citizens United won't change much. 

Regardless of how we got here, it seems to me that policy-wise we're in a bad place and that a plain reading of the Constitution would allow much more regulation of elections and the political process.  Perhaps we got here by confusing the right to speak freely and the right to be heard. 

It seems to me the core of the free speech guarantee is that the government cannot censor what we wish to say or punish us for what we said, with some very limited exceptions.  When we're engaging in political speech, we are even entitled to speak recklessly without fear of punishment, and perhaps even with malice (not sure about that) about public officials and candidates.  That seems to me a very big deal, and a precious right, but it's not the same as the right to make oneself heard— heard at all, or especially heard endlessly, noisily, ubiquitously, and exclusively. 

The doctrine that there can be no limit on one's right to spend money to make oneself heard is, of course, not about speech but about being heard—a right not explicitly guaranteed in the Constitution (unless you own a media outlet) but one that can of course be implied.  If there is an unfettered right to spend to be heard, isn't it a Constitutional problem that no media outlet is required to take your money and lend you its megaphone.  Even the fairness doctrine that gave all but "fringe" opinions a right to equal time on the "public" airways has been abrogated, apparently with no Constitutional fuss.  There are other obvious Constitutional limitations on the right to make oneself heard, including protecting the right of others to conduct orderly meetings, to be free of breaches of the peace, and not to have electioneering close to voting booths.  Even public agencies, Congress, and the Supreme Court itself limit who will be permitted to address them and for how many minutes they may be heard.  If those limitations on the right to be heard in those parts of the political process are Constitutional, what's so wrong with similar orderly regulation of the right to be heard in other parts of the political process? 

How is it that we got to this place where, in political campaigns one is Constitutionally entitled to be heard everywhere to the maximum possible extent until one runs out of money?  We've been told this has something to do with the "marketplace of ideas," in which, theoretically, after full exposure to all ideas and vigorous debate, the people decide which ideas are good and useful and which are bad and are rejected.  But that Darwinian debate cannot occur if the useful ideas cannot actually get into the marketplace at all, or once there they are overwhelmed and drowned out by unlimited spending on behalf of other, perhaps terrible, ideas.  Making money the surrogate for ideas, debate, and consideration has gotten us too close to the original meaning of "marketplace," in my opinion.

The doctrine that one may be heard as much, and only as much, as he can afford and, if he chooses, can effectively drown out the chances of everybody else to be heard skews who and what will be heard toward the status quo of entrenched interests and away from new ideas, change, and "creative destruction" in the economy.  Whenever there is a proposal to change the law, the entrenched interests pop up to defend the status quo—they know whom to lobby and how, they are often already organized in groups, and most importantly they have the cash flow from existing enterprises to "make themselves heard."  It may well be that the proposed change would create new opportunities that others would seize to make the world a better place, but those "persons" aren't organized, have no cash flow, and may not even exist.  Similarly, 100 million citizens each of whose pockets will be picked to the extent of $100 per year can't effectively oppose legislation that would do that, but a banking, telecom, or other industry that would share the resulting $10 billion of annual revenue will surely be heard—and surely knows which candidates to support with "independent" TV ads.  I don't think it's any accident that the five most "conservative" justices were the majority in Citizens United. 

I assume all these arguments have been made, and made better, but were rejected by the Supremes.  Perhaps after several personnel changes, such arguments could find some favor and political money could be reasonably regulated.  Until then, my best idea is public financing of campaigns in such lavish amounts that nobody, or hardly anybody, will turn down the public money and spend his/her own.  That would be expensive, but not nearly so costly as letting entrenched interests buy and run our governments. 

Update on Tuesday, April 6, 2010 at 09:46PM by Skeptic

Stanley Fish reports that those who recently gathered at the Brennan Center for Justice similarly focused on the differences between speech and money.