Money, Politics, and the Constitution: Beyond Citizens United
Top Constitutional scholars launch a new jurisprudence to curb the rise of unfettered money in politics post-Citizens United. What is next for the First Amendment? And how can we advance a vision of the Constitution as a charter for a vibrant, participatory democracy?
About the book: Erwin Chemerinsky, Dean of UC Irvine School of Law and author of The Conservative Assault on the Constitution:
“A brilliant collection of essays on one of the most important contemporary constitutional issues: when can and should the government be able to regulate campaign spending? … If there is to be a new jurisprudence in this area, this book is likely its foundation.”
About the conference that sparked the book: Stanley Fish, The New York Times:
“A-list First Amendment scholars … As a result of what had been said and proposed, something in the world might actually change.”
The volume’s contributors include some of today’s most renowned constitutional scholars: Professor Mark Alexander, Professor Richard Briffault, Professor Deborah Hellman, Professor Frances Hill, Professor Samuel Issacharoff, Professor Burt Neuborne, Professor Richard Pildes, Dean Robert Post, Professor Geoffrey Stone, Professor Zephyr Teachout, and Brennan Center Senior Counsel Monica Youn.
In the late 1990s, The Century Foundation and the Brennan Center for Justice at New York University School of Law collaborated to develop two publications focusing on the landmark Buckley v. Valeo campaign finance case. At the time, that 1976 decision, which prohibited caps on electoral spending, was viewed as the central obstacle to legislative reforms that could help to reduce the deleterious effects of money on democracy. One of those reports, titled Buckley Stops Here, conveyed the recommendations of a group of legal scholars for a strategic campaign to overrule or limit that decision. The follow-up edited volume, titled If Buckley Fell, was a collection of essays describing an alternative vision of a First Amendment that tolerates greater regulation of the flow of money into elections, without sacrificing any of the critical First Amendment moorings that are so critical to a free society.
Last year, the Supreme Court reached an even more monumental decision in Citizens United v. Federal Election Commission, further inhibiting what Congress can do to regulate campaigns. That unwelcome development prompted the Brennan Center to join forces once again with The Century Foundation to publish a new collection of essays, this time focused on Citizens United. Although we are clearly fighting an uphill battle, to say the least, we remain convinced that the influence of money on American democracy denigrates the integrity of the republic. Rather than acquiesce to the ongoing judicial assault against campaign finance laws enacted by elected officials, both the Brennan Center and The Century Foundation remain deeply committed to finding ways to diminish the outsized clout of money in elections and governing.
We thank Michael Waldman, executive director of the Brennan Center, and his colleagues for working with us on this project. Perhaps one day down the road our efforts will lead to a campaign finance decision that we can celebrate together.
Richard C. Leone, President
The Century Foundation
The struggle for democracy is at the heart of our history. American politics has long been convulsed by scandal and reform. Results rarely are pretty. The line dividing private economic power and the public realm shifts and slides with the felt necessity of the times.
Then, in Citizens United v. Federal Election Commission, the U.S. Supreme Court abruptly erased and redrew that line again. Overturning decades of precedent and dozens of laws, five justices ruled that corporations and unions had a constitutional right to spend unlimited sums in elections. The ruling earned banner headlines, a sharp State of the Union rebuke, and public disapproval hovering near 80 percent in the polls. In the 2010 election, independent spending spiked, much of it secret, with more to come. The decision ranks among the Court’s most controversial and consequential.
Yet Citizens United was no bolt out of the blue. It was the product of a decades-long legal drive to rethink doctrine and, ultimately, strike down the edifice of campaign law. This jurisprudential movement drew inspiration from the 1971 memo drafted by soon-to-be Justice Lewis Powell that urged corporate leaders to fund scholars and public interest legal groups to promote a “free market” approach in the courts. Former Federal Election Commission chair Bradley Smith bragged to the New York Times that Citizens United was the fruit of “long-term ideological warfare.” This effort was bold, strategic, and willing to rethink basic premises. It has been markedly effective.
Above all, it sought to advance a powerful but narrow notion of the First Amendment, focused on the rights of the speaker, especially corporate speakers. Until 1976, courts rarely if ever applied the First Amendment to campaign finance laws. By 2010, claims of “free speech” were wielded to overturn campaign laws dating back decades at least. Nearly forgotten in the emerging jurisprudence were the interests of voters, of a workable government, or of democracy itself.
Even as the Court’s conception of democracy has continued to narrow, new strategies and technologies are shaking and remaking the world of politics. New media create the possibility for positive change, from the role of low-cost social media, to the small donor phenomenon, to the possibility of real-time transparency in campaign spending. These trends can be magnified by reforms such as multiple matching funds for small contributions. But these shoots of reform could be washed away by the tide of big money in the wake of Citizens United.
We cannot ask courts to craft the institutional mechanisms for an effective democracy, but we can insist that courts allow those mechanisms to be created. In short, we must build a new jurisprudential movement, one that advances a vision of the Constitution as a charter for a vibrant democracy. This effort will call on the talents of the most powerful minds in law and the academy. The fight for democracy cannot be waged from an ivory tower: instead, such a movement can draw strength from a true dialogue between scholars and an active citizenry.
The Brennan Center for Justice at NYU School of Law is proud to play a leading role in launching such a movement. This volume and the symposium that produced it are among the first steps. We expect this thinking to play out in law reviews, briefs, and ultimately court decisions. For example, already many of these scholars have put their ideas into effect in amicus briefs in ongoing litigation, including the defense of public financing. These ideas do not advance in lockstep. Participants here disagree on many things (indeed, including the basic question of whether Citizens United was rightly decided). But all agree that constitutional interests are not hostile to our democratic values—instead, strengthening democracy is the very core of our constitutional enterprise.
As Justice Robert Jackson once wrote, the Constitution is not “a suicide pact.” Similarly, the First Amendment is not a hostage note. Fealty to a narrow ideology of free speech ought not threaten democracy or workable governance. It is time to craft a constitutional vision that allows “we the people,” directly and through elected representatives, to create our own democracy.
We are thrilled to publish this important volume with The Century Foundation. The newly created Brennan Center forged an important partnership with the Foundation nearly fifteen years ago, and we are glad to renew this collaboration now. We want to thank all of the contributors for pushing forward an ambitious jurisprudential movement, and all at The Century Foundation who helped make this volume happen, including Richard Leone for his leadership, and Greg Anrig, Jason Renker, Carol Starmack, Christy Hicks, and Laurie Ahlrich for their excellent work on this project.
Michael Waldman, Executive Director
The Brennan Center for Justice at NYU School of Law
About the book
Money, Politics, and the Constitution: Beyond Citizens United
Edited by Monica Youn
Published by The Century Foundation Press & Brennan Center for Justice
Publication Date: April 28, 2011
For more information on Money, Politics, and the Constitution, please visit www.brennancenter.org, or call Jeanine Plant-Chirlin at 646-292-8322.
The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Our work ranges from voting rights to campaign finance reform, from racial justice in criminal law to presidential power in the fight against terrorism. A singular institution— part think tank, part public interest law firm, part advocacy group—the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector.
The Century Foundation conducts public policy research and analyses of economic, social, and foreign policy issues, including inequality, retirement security, election reform, media studies, homeland security, and international affairs. The foundation produces books, reports, and other publications, and convenes task forces and working groups. With offices in New York City and Washington, D.C., The Century Foundation is nonprofit and nonpartisan and was founded in 1919 by Edward A. Filene.