That we are underlings: the real problems in disciplining political spending and the First Amendment.

• Author: Purdy, Jedediah
• Position: Symposium: Money, Politics, Corporations and the Constitution

We're gathered at the intersection of professional reason and popular passion. The roughly two-thirds of Americans who have said they strongly oppose Citizens United (1) don't have a theory of the First Amendment; (2) they have a felt sense that the decision is an emblem of the political condition that unites Tea Partiers, Occupiers, and the Warren wing of the Democratic Party in shared disgust: the superior political influence and access of big business and great fortunes. This is the condition, or a subset of the condition, that Larry Lessig and Zephyr Teachout call corruption rightly understood: structural corruption that tethers the attention and loyalty of officials to the concerns of their financial patrons. (3)

We're being asked to apply our special tools and questions--conceptual coherence, doctrinal workability, alertness to unintended consequences, and clashing values--to a problem that popular passion has put on the agenda: we are discussing how, and how far, this popular sentiment can take constitutional form. On these questions I have little to add to what others have said on this panel and throughout the day. I think there is room in a sensible constitutional scheme to limit money's role in politics. I have no strong opinion about whether our doctrinal route should be an expanded conception of corruption, which starts from the Supreme Court's holding that preventing corruption or the appearance of corruption is the only government purpose that can justify restrictions on campaign spending; (4) a revived idea of political equality, the notion that equal citizenship should put a limit on the disparity among different persons' political efficacy; or the idea that electoral integrity, maintaining the link between public opinion and political outcomes, is a value internal to the First Amendment and can justify limits on campaign expenditure. To my mind, these are all paths to the same goal, which is loosening the grip that private wealth now has on every stage of the political process.

I should stress, I am not sanguine about writing Congress a blank check to shape future elections, but I think the Buckley (5) line of cases, as elaborated in Citizens United and McConnell, (6) shows that if we apply the First Amendment's intense skepticism toward regulation too readily to campaign spending and donations, we write a blank check to those who write the checks. For them, unlike elected officials, there is no accountability to the public.

It is tempting, on the doctrinal level, to assert that First Amendment law has arrived at an antimony--that because the "money is not speech" slogan is superficial and unconvincing, and discrimination among speakers is severely disfavored, there just is no way to get hold of the problem of money in politics generally (nor in the subset of corporate political spending). I have advanced this argument myself in a popular essay, and I am afraid it is true that it tracks the drift of First Amendment law since Buckley v. Valeo. (7) It is also true that it tracks the deep connection between wealth and the power to exercise a potentially boundless right like speech, the same connection that leads the radical-left stance on campaign spending to be "no socialism, no democracy!"--that is, as long as wealth is highly unequal, political influence will be as well. (8) In these respects, it has the charisma of a double-headed realism: it is hard-nosed about what the law really is, on the one hand, and, on the other, about how the world really works. Between these two, it exercises a considerable attraction.

But there is considerable space between these poles of pessimistic realism for the modest optimism of a meliorative liberalism. I am not convinced that there is anything in the logic of the social practices that the First Amendment regulates, or in the concept of speech, that requires the particular variety of monomaniacal rigor that Supreme Court majorities have been pursuing.

It seems to me that several concepts could do the doctrinal work that is needed here. We need not worry too much about whether it is structural corruption, a robust conception of citizenship, or a division between the sphere of opinion formation and that of self-governance (or at least popular feedback, on the more restrictive intepretation). Any of these terms might serve well enough to stand for a congeries of rules permitting regulation of electoral spending. If the will is there to pursue the aim, the doctrinal way will follow.

I'd like to step back from the technical questions to consider their connection to the broader political moment. The advocates for constitutional reform in this area have something in common with the activists who helped spur the arguments for the individual right to keep and bear arms, which the Supreme Court identified in 2008, or the Commerce Clause arguments against the Obamacare individual mandate that won five votes in 2012. Their energy has to do with the special symbolic status of the Constitution, the way that Americans identify with almost axiomatically, so that (A) if the Constitution says it, it must be right; and (B) if it's right, the Constitution must say it. This politics works at the level of identity as well as interest and strategy: it speaks to the meaning people find in being Americans, and whether they feel the country has a place for them, and (closely related) whether they feel it is working or in crisis.

What is different about this constitutional ferment is that, unlike fights about Obamacare, gun control, abortion, affirmative action, marriage equality, and religious expression, it does not simply rework the country's partisan divides and identity politics into constitutional language. Activists are arguing for trans-partisan, partisan, trans-community, specifically civic constitutional value. Maybe more specifically, they are expressing their sense that Citizens United offends such a value. Because arguing about the Constitution is, in part, a way that we constitute ourselves as Americans, we should understand this ferment as an attempt to define, elevate, even...