PATHS OF RESISTANCE TO OUR IMPERIAL FIRST AMENDMENT
Citizens Divided: Campaign Finance Reform and the Constitution. By Robert C. Post. Cambridge, Massachusetts and London: Harvard University Press. 2014. Pp. viii, 165. $29.95.
In the campaign finance realm, we are in the age of the imperial First Amendment.1 Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court.2 A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment's empire expands, other values give way.
Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. FEC, the Court held that the state could regulate only the most obvious forms of express advocacy for a candidate, thus expanding the space in which First Amendment rights categorically trump other state interests.3 In Citizens United v. FEC, the Court held that corporations have the same First Amendment rights as individuals and limited dramatically the state's capacity to protect the integrity of the democratic process.4 Only the narrow interest in preventing quid pro quo corruption or the appearance of such corruption could justify independent corporate expenditure regulations.5 When the state of Montana in American Tradition Partnership v. Bullock offered evidence of such corruption to support its regulation of independent corporate expenditures, the Court simply presumed that the regulation did not in fact protect against this type of corruption.6 This decision raised the possibility that no state actor would be able to support a campaign finance restriction with evidence of a compelling purpose. Finally, in McCutcheon v. FEC, the Court expanded this First Amendment regime from campaign expenditures to campaign contributions, holding that only quid pro quo corruption and the appearance of such corruption could justify contribution limits.7 The Court then simply concluded as a matter of logic that the regulation did not protect against such corruption in the face of legislative evidence to the contrary.8
Members of the public, scholars, and dissenting justices have resisted this First Amendment imperialism. Some criticize the line the Court has drawn between the electoral domain, where speech can be regulated, and the political domain, where it cannot.9 These scholars advocate for a broader electoral domain and for applying a different form of First Amendment scrutiny for speech in this domain.10 Others lament the Court's narrow conception of the state's compelling interest in regulating speech. They point to the widespread public cynicism about politics, a cynicism arising from the sense that the rich and powerful have unfair political influence through campaign contributions and expenditures, even if they do not bribe candidates directly.11 The public has also directed anger at the Court's decision to treat corporations like people under the First Amendment.12 Many argue for lesser constitutional protections for corporations because the special legal protections they receive in the economic marketplace provide them with unique capacities to amass wealth and to use it to distort the democratic process.13 But all of this resistance thus far has been futile.14
In his new book, Citizens Divided: Campaign Finance Reform and the Constitution, Yale Law School Dean Robert Post15 proposes a new path for resisting the imperial First Amendment. Synthesizing history and doctrine, Post develops a First Amendment theory and proposes a framework to reconcile First Amendment values with the demands of self-government (pp. 5, 90-94). Post explains that public opinion has emerged as the principal means by which the people communicate with their representatives in our system of self-government.16 Speech is the primary input in the ongoing process of public-opinion formation. When elections produce representatives who are responsive to public opinion, people who can contribute to public-opinion formation through speech experience democratic legitimation (p. 60). The people develop a sense of ownership over their government. The First Amendment should therefore protect the right of every citizen to participate in democratic discourse.
After broadly defining the First Amendment right, Post departs from the imperialists. The Court has balanced away the state interest in democratic integrity, which Post reframes as electoral integrity, in favor of the superior right to freedom of speech (pp. 60-61). Post argues that this approach is misguided because electoral integrity is an essential precondition to First Amendment rights. Electoral integrity "presupposes . . . public trust in the responsiveness of representatives to public opinion" (p. 61). To the extent that the people do not perceive their representatives to be responsive to public opinion, speech as democratic legitimation is undermined. Courts should therefore evaluate campaign finance laws according to whether the laws protect against threats to electoral integrity.
In many respects, Post's theory and framework are quite persuasive. He fulfills his goal of providing "a constitutional framework of analysis in which First Amendment doctrine and campaign finance reform can be connected to each other in a coherent and theoretically satisfactory manner" (p. 5). He offers a basis for reconciling "our republican tradition . . . with our commitment to discursive democracy" (p. 6). And ultimately, he presents a compelling case for how the Court in Citizens United, which serves as the focal point of the book, deviated from First Amendment principles. Given that the liberal justices decided to adopt many of the elements of Post's theory and constitutional framework in their McCutcheon dissent, Post's work could represent the future of First Amendment doctrine in the campaign finance realm.17
But Post's constitutional framework is unlikely to convince the Court's current conservative majority. Insofar as Post's theory of the First Amendment is grounded in history, his stylized and synthetic account is unlikely to persuade those who demand greater rigor. But perhaps more importantly, Post's constitutional framework is flawed because it fails to account for a linchpin in the Court's recent campaign finance jurisprudence: the concern about chilling constitutional speech. A path of resistance to the imperial First Amendment will need to account for this concern. In this Review, then, I offer an alternative path forward that builds from Post's theory and constitutional framework but addresses concerns about chilling speech. This proposal shifts the responsibility for complex fact-based judgments from courts conducting case-by-case adjudications to agencies issuing advisory determinations.
This Review proceeds in three parts. In Part I, I explore Post's historical survey of self-government and anticipate critiques of this account. In Part II, I review Post's proposed First Amendment theory and constitutional framework for adjudicating challenges to campaign finance regulations. In Part III, I focus on the omission in Post's constitutional framework-his failure to address the Court's concern about chilling constitutional speech. I then offer another path forward that builds from Post's framework but accounts for the Court's concern about chilling effects.
A History of Self-Government
Dean Post's book is the product of the prestigious Tanner Lectures on Human Values, which he delivered at Harvard Law School in 2013. In addition to the lectures, the book includes commentaries from Stanford Law Professor Pamela Karlan, Harvard Law Professors Lawrence Lessig and Frank Michelman, Columbia Political Science Professor Nadia Urbinati, and a reply by Post. This Review focuses on the two lectures by Post that form the core of the book. In the first lecture, "A Short History of Representation and Discursive Democracy," Post provides a "quick and stylized survey of the history of self-government" (p. 6). He relies on this history to develop his First Amendment theory. In the second lecture, "Campaign Finance Reform and the First Amendment," he uses the theory to construct a constitutional framework for reviewing challenges to campaign finance regulation that reconciles freedom of speech and self-government.
Post begins his historical account at the founding of the American Republic. The founders, according to Post, believed that " 'representation' required a 'chain of communication between the people, and those, to whom they have committed the exercise of the powers of government.' "18 "The chain of communication needed to be 'sufficiently strong and discernible' to sustain the popular conviction that representatives spoke for the people whom they purported to represent." The chain proves central to what Post refers to as representative integrity (pp. 8, 15-16). Representative integrity is a core value of representative government and requires "trust and confidence between representatives and constituents, such that the latter believe that they are indeed 'represented' by the former" (p. 16; footnote omitted).
In the republic's early days, when the community entitled to participate in the political process was small and the relationship between representatives and constituents was closer, representative integrity was maintained through elections (pp. 7-10, 17). When the political community expanded in the Jacksonian era due to increasing population and a broadening of the franchise, personal connection with and knowledge of the representative could no longer sustain trust and confidence between representatives and constituents (p. 17). In this era, the party system emerged as the principal tool to maintain the chain of...