Citizens Divided: Campaign Finance Reform and the Constitution.

Author:Schauer, Frederick
Position:Book review
 
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Citizens Divided: Campaign Finance Reform and the Constitution

BY ROBERT C. POST

CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2014

PP. 264, $29.95

BOOK REVIEW CONTENTS INTRODUCTION I. POST VS. MILL II. POST'S FIRST AMENDMENT III. CITIZENS UNITED AND THE DISTRACTION OF THE CORPORATE SPEECH CONTROVERSY IV. THE QUESTION OF DEFERENCE V. POST'S CONSTITUTION OF HOPE CONCLUSION: DEMOCRACY AND TRUST INTRODUCTION

Winston Churchill was on to something. His 1947 quip that "[d]emocracy is the worst form of Government except all those other forms that have been tried from time to time" (1) plainly evinced skepticism about democratic governance, yet it also hinted at democracy's greatest advantage. And although anyone who was alleged to have observed that "[t]he biggest argument against democracy is a five minute discussion with the average voter" (2) may simply have been no democrat at all, Churchill's views were more complex than that. For in insisting that democracy, warts and all, was still the best system yet devised, he recognized its decided advantages over more concentrated and less checked official power.

Democracy as the least flawed among flawed alternatives--and as more of a constraint on wicked governments than an instrument of wise ones--is usefully contrasted with the more enduring romantic pictures of democratic governance. Such pictures, as ubiquitous now as when Rousseau celebrated them two and a half centuries ago, (3) envisage informed and engaged citizens playing a central role in the determination of the policies that will affect them. When the public plays such an important role in the process of making laws and policy, so it is said, citizens become willing to accept the legitimacy of even those laws and policies with which they disagree.

But a Churchillian vision of democracy is skeptical. It is skeptical of popular wisdom and even more skeptical of the likelihood that citizens will understand and accept the second-order legitimacy of those decisions they believe mistaken as a matter of first-order substance. Yet for all this, the Churchillians remain committed to the ability of democratic governance to guard against the worst excesses of concentrated power, excesses that Churchill had observed and fought against only shortly before uttering his tepid endorsement of democracy. Democracy, for Churchill among others, is to be valued not for its ability to produce good outcomes, but for its power to prevent bad ones.

Constitutions create the mechanisms of democracy, and so we find versions of constitutionalism that track the contrasting romantic and Churchillian visions of democracy. Moreover, there are conceptions of the freedoms of speech and press--and in the United States, conceptions of the First Amendment-- that coincide as well with these fundamentally opposed understandings of democracy and of the role of a constitution in creating and supporting it. This should come as little surprise, given that these freedoms are so often and properly thought to be central to democratic governance.

Robert Post's Citizens Divided, (4) based on his 2013 Tanner Lectures and published with a series of illuminating but largely sympathetic comments, (5) is a valuable articulation of an emphatically anti-Churchillian vision of democracy. Although Post recognizes those excesses of direct popular rule often described as "populism," (6) he nevertheless offers a picture of democracy premised on a belief in the genuinely beneficial consequences of a form of government that recognizes, celebrates, and builds on the citizenry's capacity for self-governance. The version of democratic self-governance that Post ungrudgingly embraces in this book is a positive and optimistic one, accompanied here by the understandings of the United States Constitution and of the First Amendment that he believes to follow from it.

Post's constitution is so positive in its outlook and so aspirational in its vision (7) that we can label it the constitution of hope. But Churchill reminds us that there is an alternative vision, the constitution of fear. (8) The constitution of fear embodies Churchill's idea that democracy--and the constitutions that constitute it--should be designed as a check against governmental excesses and consequently more as a barrier to bad outcomes than a pathway to good ones. My goal here is to contrast this "negative" way of understanding democracy, the Constitution, and the First Amendment with Post's more positive one. I do not propose to argue that the negative constitution of fear is superior to Post's positive constitution of hope, or vice versa, but rather to highlight the contrast and to suggest that adopting Post's vision implies rejecting an approach that Churchill and many others have found so important.

  1. POST VS. MILL

    Citizens Divided consists of Post's two Tanner Lectures, followed by commentary and Post's response. The two lectures have distinct but connected goals. The first sets out Post's understanding of (or vision for) American democracy, and the second uses that understanding as the platform for criticizing the Supreme Court's 2010 decision in Citizens United v. Federal Election Commission. (9)

    Post's vision of democracy is complex and sophisticated. No populist, Post draws heavily on statements from the founding generation (10) to support his skepticism about unalloyed majoritarianism and about what is commonly called "direct democracy." (11) Although direct democracy might be a plausible governmental structure for a small polity, he acknowledges, (12) it is neither feasible nor desirable in a large and complex modern state. Moreover, Post shares the view of James Madison, as well as of Edmund Randolph, Gouverneur Morris, and Alexander Hamilton--all of whom he quotes (13)--that truly popular policymaking is dangerously susceptible to the short-term passions and biases of the moment. Democracy, for Post, is something deeper and better than simple majority rule.

    The traditional alternative to direct democracy is representative democracy, the latter often described as a republic. (14) And representative democracy is a form of government with which Post generally sympathizes; he recognizes both its necessity in a large, complex state and its desirability in tempering the worst excesses of populism. (15) But whereas the standard defenses of representative democracy rely heavily on elections as the mechanism by which popular preferences will be manifested, Post believes that elections are far too episodic to constitute by themselves the primary basis for popular control. (16) If the people's right to self-governance is to be respected, he argues, then their representatives must be responsive to their wishes on a more regular basis. This responsiveness does not require taking instructions on every policy as that issue arises, (17) for the representative is a vital partner in a discursive process in which representatives both respond to and help to shape public opinion. Rather, for Post, the essence of self-governance resides in representatives who respond to public opinion, (18) as well as in citizens who trust that their representatives will do so. This is discursive democracy, and it lies at the heart of what Post believes, and what Post believes the Founders believed, is democracy in its highest and best form.

    In highlighting continuous rather than election-focused dialogue between the people and their representatives, and in seeing representatives as more than mere transmitters of popular preferences, Post presents an important variation on what in the classic formulation is the delegate model of representative democracy. (19) Under the delegate model, the representative is the logistically necessary delegate of the public, tasked to effectuate public preferences, but it is still those preferences that control. By theorizing these preferences in terms of a discursive relationship between the people and their delegates, and by using the idea of continuous public opinion as a way of understanding the act of delegation as not merely episodically focused on elections, Post's variation is both original and valuable. Indeed, Post's version of the delegate model may be more empirically plausible in our complex and fluid world than alternative versions that see elections as the principal or even only way in which the public may inform its delegates. Issues that are salient at election time may be displaced by others that could not even have been imagined during the election, and the speed with which new issues rise, and old ones fall, can make the subjects of electoral campaign debates poor proxies for the issues with which the winning candidate must deal during her term of office. By recognizing this problem, and by imposing on representatives an obligation of fidelity to continuous public opinion rather than only to preferences expressed at the ballot box, Post's version of the basic delegate idea fits far better the realities and speed of the modern world than do the more traditional and more election-focused variations.

    Even in Post's version, however, the delegate model of democracy and representation is not the only one on offer, and it is traditionally contrasted with the trustee model. (20) Under this model, the people elect trustees to serve their interests, but, like the trustee of a trust or an investment account, the charge of the trustee is to serve the beneficiary or principal's interests, and not necessarily to function as the implementer of her short- or even intermediate-term preferences. Between elections, representatives operating as trustees are expected to pursue the electorate's interest, but they need not respond to the electorate's overt desires. It is sufficient that those desires can be embodied at election time when the electorate, as principal, can choose to replace the trustee.

    Among history's most interesting examples of the trustee model is John Stuart Mill. Although...

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