Skip Navigation
Report

Money, Politics, and the Constitution: Beyond Citizens United

Published: April 28, 2011

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 Bren­nan Center and Acknow­ledge­ments (PDF)

Table of Contents (PDF)

Fore­word by Richard Leone

Preface by Michael Wald­man

Intro­duc­tion by Monica Youn (PDF)

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.


Fore­word

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


Preface

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
ISBN: 978–0–87078–521–4
266 pages

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.