Money, Politics & the Constitution: Building A New Jurisprudence

March 27, 2010

March 27, 2010 - NYU Law School

Download pdf of program

The Supreme Court’s recent decision in Citizens United v. FEC marked a turning point within the already-unsettled law governing the regulation of money in politics. Even before Citizens United, however, a series of the Roberts Courts’ decisions had cast a cloud of constitutional uncertainty over at least some of the goals and methods of campaign finance regulation. And the constitutional debate surrounding the issue had become polarized between those who sought to limit the influence of money in politics and those who viewed the exercise of monetary influence as a constitutional right. There is an urgent need to rethink the relationship of money, politics and the Constitution. 

This symposium marked the beginning of a new progressive jurisprudence on these critical issues.  Our efforts will continue.  In the short term, we are coordinating with several of the symposium participants to: 

  1. participate in the many active legal challenges to campaign finance law by filing friend-of-the-court briefs;
  2. edit and publish academic papers in a Brennan Center book on the symposium and in a special issue of NYU School of Law's Review of Law and Social Change which will be dedicated to the symposium;
  3. explore establishing a working group of scholars who are furthering these ideas; and
  4. plan potential follow-up events such as debates and panels.

The longer-term strategy to promote a new jurisprudence is a component of the overall Brennan Center's campaign finance work, which includes emergency legal response to the armada of challenges working their way through the courts now and working to promote legislative reforms, such as small donor public financing, at the state and national level.

Conference Program

Opening Remarks: Michael Waldman (Brennan Center for Justice) (transcript)

Keynote: Congresswoman Donna Edwards (transcript)

Panel 1: Does the First Amendment Limit Reform of Money in Politics? Can Reform Enhance First Amendment Values? (transcript)

Questions Addressed:

  • Debates around campaign finance reform have often coalesced around two polar positions: a “civil libertarian” position arguing that the First Amendment mandates the state to absent itself from the political arena, and an “aspirational” position which holds that the state can enact laws regulating money in politics that “enhance” First Amendment values rather than burdening them. Are these two articulations mutually contradictory?
  • Does the First Amendment permit the state to draw any distinction between political speech used to express an opinion and political speech used to favorably influence elected officials?
  • In general, what limits does the First Amendment impose on the goals and methods of regulating money in politics?

Moderator: Susan Liss (Brennan Center for Justice)

Panelists:

Floyd Abrams (Cahill Gordon & Reindel)
Erwin Chemerinsky (UC Irvine School of Law)
Deborah Hellman (University of Maryland School of Law)
Vicki Jackson (Georgetown University Law Center)
Kendall Thomas (Columbia Law School)
 

Panel 2: Do Voters Have First Amendment Interests at Stake in the Financing of Political Campaigns? (transcript)

Questions Addressed:

  • Do voters have First Amendment interests in the context of elections? If so, how do these interests interact with the First Amendment interests of campaigners (i.e., candidates, parties, associations, and corporations)?
  • Is the purpose of an election to facilitate decision-making by the electorate? If so, what does this mean for the First Amendment treatment of money in politics?
  • Does the First Amendment function differently in the context of an election than it does in the commercial marketplace?
  • Does the Constitution permit state efforts to limit the influence of entities other than voters on elections? If so, what is the scope of those limits?

Moderator: Monica Youn (Brennan Center for Justice)

Panelists:

Samuel Issacharoff (New York University School of Law)
Burt Neuborne (New York University School of Law)
Richard Pildes (New York University School of Law)
Robert Post (Yale Law School)
Geoffrey Stone (University of Chicago Law School)

Panel 3: Should We Look Beyond the First Amendment to Other Constitutional Principles? (transcript)

Questions Addressed:

  • Is the Constitution a charter of democratic self-governance?
  • Should combating corruption and ensuring accountability be viewed as countervailing state interests or as structural constitutional principles, similar to principles like checks and balances or separation of powers?
  • Is the Constitution concerned with concentration of power?

Moderator: Ciara Torres-Spelliscy (Brennan Center for Justice)

Panelists:

Mark Alexander (Seton Hall University School of Law)
Richard Briffault (Columbia Law School)
Frances Hill (University of Miami School of Law)
Martin Redish (Northwestern University School of Law)
Zephyr Teachout (Harvard Kennedy School)
Daniel Tokaji (Moritz College of Law at Ohio State University)

Closing Remarks: Lani Guinier (transcript)