“Citizens Divided: Campaign Finance Reform and the Constitution”

This book from Robert Post and others looks like it will be great:

ROBERT POST, CITIZENS DIVIDED: CAMPAIGN FINANCE REFORM AND THE CONSTITUTION (Harvard University Press 2014).


Abstract:

This volume contains the Tanner Lectures delivered by Robert Post at Harvard University in 2013, with commentary by Pamela S. Karlan, Lawrence Lessig, Frank Michelman, and Nadia Urbinati. There is a response to the commentary by Post. The volume will be published in Spring 2014.

The Lectures interpret the Court’s decision in Citizens United as turning on a disagreement about the nature of self-government in the United States. Justice Kennedy’s opinion for the majority understands self-government to depend on the freedom of individual citizens to participate in the formation of public opinion. By contrast, Justice Stevens’ opinion for the dissent understands self-government to inhere in forms of electoral representation. In his first Tanner lecture, Post traces the intellectual history of each of these distinct ideals of self-government.

At the founding, the Framers conceived self-government in terms of a representative republic. Their debate with Great Britain about the “virtual” representation of the colonies in the British parliament led the Framers to a strong commitment to what Post calls “representative integrity,” which is the need for a relationship of trust and confidence between representatives and constituents such that the latter believe that they are “represented” by the former. The Framers believed that representative integrity was necessary for a republic to achieve the value of self-government, and they agreed that representative integrity was a contingent empirical question that depended upon the institutional design of elections.

The representative integrity of the American Republic was threatened when the hierarchical system of deference inhabited by the Framers collapsed during the Jacksonian Era. With every candidate claiming to be a man of the people, it became difficult for the electorate to know whom to trust and believe. The difficulty was surmounted by the development of the second American party system. Political parties set forth principles and endorsed candidates, and in this way mediated between constituents and representatives. The voter, Robert La Follette would later say, “gives support to that party which promises to do the specific things that he regards of the highest importance to the state and to the welfare of every citizen. . . . Upon its promise and his support the party has become the custodian of his political rights. . . . [T]he party is bound to keep its pledged word. . . . This measures its value as a power for good in representative government.” Since the Jacksonian Era, political parties have been the custodians of representative integrity.

This equilibrium abruptly disintegrated during the Progressive Era. At the beginning of the 20th century, Americans came to regard political parties as “machines” that served their own interests rather than those of the electorate. They condemned political parties as selling government favors to corporations. As Lincoln Steffens put it, “Political corruption, then, is a force by which a representative democracy is transformed into an oligarchy, representative of special interests, and the medium of the revolution is the party.” Progressives accordingly sought to bypass representative institutions and to create forms of direct democracy in which the people could govern without the mediation of political parties.

In the late 19th century James Bryce had characterized the United States as a “government by public opinion,” in which “the will of the people acts directly and constantly upon its executive and legislative agents.” Progressives built on this insight and theorized public opinion as an institution that could connect the people to their government. All persons could help form public opinion, and in that way imagine that government might be responsive to their own views. Participation in public opinion formation could thus underwrite a democratic form of self-government.

Two distinct forms of democratic self-government emerged during the Progressive Era. In direct democracy, the beliefs of the people were transparently represented and enacted through institutions like the initiative and the referendum. But direct democracy was at best episodic, because the quotidian conduct of government affairs would always remain in the hands of elected officials. In discursive democracy, by contrast, public opinion was conceived as constantly but indirectly influencing government, in Bryce’s words, “as a pervading and impalpable power, like the ether which . . . passes through all things. It binds all the parts of the complicated system together and gives them whatever unity of aim and action they possess.” In discursive democracy, public opinion could not be represented, because it was always in motion and always evolving.

Judicially enforceable First Amendment rights, of the kind deployed by the majority in Citizens United, were created at the conclusion of the Progressive Era as a means of protecting the integrity of public opinion. First Amendment rights were designed to police the processes by which public opinion was formed. First Amendment jurisprudence developed to preserve the possibility of self-government at a time when faith in representative government, and in political parties, was collapsing. A decision like Citizens United stands for the proposition that discursive democracy is a constitutionally more fundamental path to self-government than are the representative institutions whose integrity campaign finance legislation seeks to preserve.

In his second lecture, Post applies the implications of this history to the Court’s decision in Citizens United. He notes that three interests have traditionally been advanced to justify campaign finance reform: equality, antidistortion, and the elimination of corruption. Each of these three interests is fundamental within a system of representative government. Each constituent is entitled to equal influence in the selection of her representative; election results should transparently represent, without distortion, the views of the people; and elected representatives should perform their appropriate roles, without corruption.

None of these three interests, however, makes sense within the discursive democracy established and protected by First Amendment rights. In discursive democracy, as distinct from direct democracy, public opinion is always evolving; it does not make decisions with respect to which citizens can exercise an equal influence. In discursive democracy, public opinion is never represented, so that there is no baseline from which distortions can be measured. And the state’s interest in preserving the role morality of representatives from corruption can at most count as a constitutional interest to be weighed against First Amendment interests in preserving the integrity of self-government through discursive democracy. It is no wonder that the constitutional jurisprudence of campaign finance reform has been a muddle since the days of Buckley v. Valeo.

Citizens United concludes that neither equality, nor distortion, nor eliminating corruption, can count as constitutionally compelling interests capable of justifying legislation prohibiting corporations from making independent campaign expenditures directly from their corporate treasuries. But in leaping to this conclusion, Citizens United fails to engage in a sufficiently deep analysis of relevant First Amendment rights. First Amendment rights protect freedom of speech in order to preserve the possibility of self-government. The First Amendment assumes that persons should be free to influence the content of public opinion and that the government will be responsive to public opinion. We assume that elections will ensure that government is responsive to public opinion. If elections do not select for representatives who are attentive to public opinion, however, the link between First Amendment rights and the value of self-government will disappear. If we denominate the capacity of elections to select representatives who are responsive to public opinion as electoral integrity, legislation aiming to preserve electoral integrity serve a compelling constitutional interest for purposes of First Amendment analysis. Citizens United failed to ask whether the campaign finance legislation it was considering served the purpose of maintaining electoral integrity.

Citizens United also misunderstood the relationship between ordinary commercial corporations and First Amendment rights. Ordinary commercial corporations are legal entities that cannot experience the value of self-government. That is why they cannot vote or hold office. But in First National Bank of Boston v. Bellotti, the Court held that the speech of ordinary commercial corporations is valuable because of the information it provides to persons who wish to participate in public discourse. The relevant constitutional question for Citizens United, therefore, which the Court neither asked nor answered, is whether prohibiting direct corporate speech, but allowing the speech of corporate PACs, promotes or undermines informed public decision making. Instead the Court in Citizens United applied forms of constitutional analysis, like rules against speaker discrimination and chilling effects, that ought to have no constitutional relevance to the speech of commercial corporations.

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