While the supporters of the Citizens United decision claim greater spending can energize the public to participate in the political process, First Amendment attorney David Kendall maintains the result has actually been less-thoughtful political speech and an influx of Congressional members who are more concerned with fundraising than setting policy.
“The flood of money in the electoral campaign has resulted in a lot more speech,” Kendall said, “but I think it is not reasoned and meaningful in large part because it allows the rich to drown out the not-so-rich and to help set the public agenda.”
Kendall talked about free speech and the current gridlock in government Thursday at Wabash College. He gave the inaugural keynote address for the college’s Public Discourse Summit which launched the Wabash Democracy and Public Discourse initiative.
A 1966 alumnus of Wabash College, the Sheridan, Indiana native has built a legal practice which has ranged from constitutional law and First Amendment freedoms to intellectual property and copyright in cyberspace. He is probably best known for representing President Bill Clinton during his impeachment trial in 1999.
Kendall’s address, “The First Amendment and the Internet: Was Mark Twain Right?”, first examined the technological and legal doctrine that is giving Americans more ways to exercise their right to free speech. Then he reviewed what he called the “puzzling results” of these technological and legal evolutions.
Among the free speech protections, Kendall included the Supreme Court of the United States ruling in Citizens United v. Federal Election Commission, 558 U.S. __ (2010). Here, the court concluded that limiting political contributions will limit the right to free speech.
Kendall said the court took no notice of the “abundance of evidence” that corporate spending should be curbed because money is a corruptive influence.
“…people in both parties have a common sense view that money is both a corruptor and an apparent corruptor of the political process,” he said.
Money, political speech that is often hyper-partisan and the media focusing on the trivial instead of the substantive have all contributed to the dysfunction in Congress, he said.
“There is in Washington, where I’ve lived for many years, a kind of poisonous political deadlock, the kind we really haven’t seen since the 1850s and it took a civil war to resolve that,” Kendall said.
To remedy the situation, Kendall recommended Citizens United, and the subsequent Supreme Court decisions equating spending with speech, be overruled.
He also asserted politicians and voters need to act like grownups and to use “grownup language” in a conversation that is realistic and forthright. As an example, he pointed to the national debt and said to really address that problem the country has to talk honestly about entitlement programs.
Kendall concluded by describing his recent walk to the Lincoln Monument in Washington where he re-read Lincoln’s second inaugural address. He was surprised by the speech’s empathy as well as its lack of triumphalism and partisan which is now missing from the public discourse.
“I hope the country never needs the services of an Abraham Lincoln,” Kendall said. “But I do wish the politicians of today would more often consult not only Lincoln’s language but also his style of government.”