Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas

Many in the campaign finance community suggest there is no room for further debate over the constitutionality of statutory limits upon independent political expenditures and contributions. Pro-reform groups "perceive democracy as vulnerable to systemic corruption from plutocratic influences and thus endorse regulatory oversight of campaign spending." Pro-speech groups "assert that the pillar of democracy is free participation in the marketplace of information, and subsequently reject restriction of campaign financing even when advanced in the name of anti-corruption." Since Citizens United, the latter view has largely carried the day in court.But what if the pro-reform and pro-speech views are not at odds after all? Since Buckley v. Valeo, reformers have sought to limit "contributions" or "expenditures" in the name of "preventing corruption" or "political equality." These blunt paradigms have failed. But there is another way forward. For forty years, Congress and the Court have unnecessarily examined all expenditures of money as an undifferentiated class subject to the same restrictions. It is time to abandon this framework and pursue a new approach tailored to a new interest."The Court has long viewed the First Amendment as protecting a marketplace for the clash of different views and conflicting ideas." This marketplace of ideas (or, "ideational marketplace") rests upon two principles: "more speech" and "free trade." The "more speech" principle recognizes that "more speech, not less, is the governing rule" of the First Amendment. This protects free entry into the market and ensures a diversity and multiplicity of ideas. The "free trade" principle recognizes that "the ultimate good desired is better reached by free trade in ideas" and "that the best test of truth is the power of the thought to get itself accepted in the competition of the market." This protects free competition within the market and ensures that the best ideas "win" through competition on the merits. But if the "marketplace of ideas" is more than just a catchy slogan, then what does "winning" provide? What limited resource does the market allocate based on this "free trade in ideas"? The answer is time. "In a fleeting existence we have but little time to find truth through discourse." When content freely competes in the marketplace of ideas and wins on its merits, the best ideas rise to the top, gain greater acceptance, and earn a larger market share of audience time and attention. And just as some contracts in the economic marketplace enhance competition while others restrain competition, so too do some expenditures in the ideational marketplace enhance competition while others do not. By distinguishing between these expenditures, we can raise unexplored questions and craft a campaign finance system that aligns with the First Amendment.Part I briefly surveys the history of the campaign finance debate. After examining the problems posed by existing approaches and the weaknesses of the "anticorruption" and "political equality" interests, the theory abandons the faulty premises underlying those paradigms. Rather than assuming that the government's interest must cut against free speech, the theory proposes aligning the government's interest with free speech. And, rather than assuming all expenditures serve First Amendment purposes and asking how much protection should be afforded to these expenditures, the theory asks which expenditures advance the purposes of the First Amendment and which expenditures undermine the purposes of the First Amendment.Part II proposes a new approach to reform based on the differences between competitive and anticompetitive expenditures in the ideational marketplace. By revealing Buckley and its progeny to be an inevitable judicial response to a clumsy legislative framework, the theory makes room for a more tailored statute rooted in constitutional principles. Here, the theory distinguishes between expenditures for the creation of content (all of which help content enter the market and are protected by the "more speech" principle) and expenditures for the dissemination of content (some of which allow content to compete for market share on the merits — and thus are protected by the "free trade" principle — and some of which bypass the competitive process for earning market share — and thus violate the "free trade" principle).Part III proposes a new government interest: preserving free competition in the marketplace of ideas. By passing legislation that curbs anticompetitive restraints upon free trade, Congress could protect the ideational market's natural role in safeguarding free speech and self-rule. And, just as our antitrust laws curb restraints to protect economic competition (without regard to particular businesses or products), so too would a political antitrust law curb restraints to protect ideational competition (without regard to particular speakers or ideas). Such a law would not "favor particular speakers" or "equalize speech" any more than the antitrust laws "favor particular businesses" or "equalize market share."Part IV discusses the elements and application of a legislative proposal, forecasts the standard of review to be applied, addresses the likely objections to such a scheme, and evaluates the various advantages of employing such an approach. In short, this Article sets out a constitutional theory and legal framework for understanding what so many Americans already know: that they are not heard in the halls of Congress, that the political process has shut them out, and that their compelling concerns cannot compete in a system where money matters more than merits.