Paths of Resistance to Our Imperial First Amendment

Bertrall L. Ross II*

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 Post[15] 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.

*      Assistant Professor of Law, University of California, Berkeley, School of Law. For their helpful suggestions for improvement, I would like to thank Roxanna Altholz, Andrew Bradt, Catherine Crump, Saira Mohamed, Andrea Roth, and Rachel Stern. I would also like to express my greatest appreciation to Joy Milligan for talking through the ideas with me and reviewing multiple drafts.

[1].     Paul Carrington was the first scholar to refer to the First Amendment in imperial terms. See Paul D. Carrington, Our Imperial First Amendment, 34 U. Rich. L. Rev. 1167 (2001). While Carrington criticized the Supreme Court’s expansion of First Amendment protection to commercial advertising, id. at 1188–92, my focus is on the Court’s expansion of virtually categorical First Amendment protection to more forms of campaign finance. “Imperial” as used here refers to the current Supreme Court’s tendency to expand the reach of First Amendment protection to speech previously subject to governmental regulation.

[2].     See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1462 (2014) (striking down the Federal Election Campaign Act’s aggregate limits on campaign contributions to candidates); Am. Tradition P’ship v. Bullock, 132 S. Ct. 2490, 2491 (2012) (per curiam) (striking down a Montana statute banning independent expenditures by corporations “in connection with a candidate or a political committee that supports or opposes a candidate or a political party” (quoting Mont. Code Ann. § 13-35-227(1) (2011)) (internal quotation marks omitted)); Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2813 (2011) (invalidating Arizona campaign finance law providing matching funds for publicly funded candidates facing privately funded opposition); Citizens United v. FEC, 558 U.S. 310, 339–41, 365 (2010) (striking down the federal Bipartisan Campaign Reform Act bar on independent corporate expenditures for electioneering communications); Davis v. FEC, 554 U.S. 724, 743–44 (2008) (striking down the “Millionaires’ Amendment” to the Bipartisan Campaign Reform Act, which relaxed fundraising limits for opponents of self-financed candidates); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457 (2007) (striking down the Bipartisan Campaign Reform Act’s prohibition on electioneering communications as applied to the respondent’s campaign advertisements); Randall v. Sorrell, 548 U.S. 230, 236 (2006) (invalidating Vermont’s campaign-contribution limits to candidates as too low). The state has succeeded only in sustaining disclosure requirements. See Citizens United, 558 U.S. at 366–71 (upholding the Bipartisan Campaign Reform Act’s disclosure requirement).

[3].     551 U.S. at 469–70 (“[A]n ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”).

[4].     558 U.S. at 349–51, 359–60 (rejecting the state interest in preventing distortion and unfair influence in the political process).

[5].     Id. at 359.

[6].     132 S. Ct. at 2491 (holding, without reasoning in a per curiam opinion, that the arguments in favor of the Montana campaign finance law “were already rejected in Citizens United”). But see id. at 2491–92 (Breyer, J., dissenting) (“Montana’s experience . . . casts grave doubts on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”).

[7].     134 S. Ct. at 1441 (“Any regulation must . . . target what we have called ‘quid pro quo’ corruption or its appearance.”).

[8].     See id. at 1452 (“If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801 . . . .”); id. at 1470 (Breyer, J., dissenting) (pointing to legislative evidence that the regulation would protect against corruption).

[9].     See Richard Briffault, Issue Advocacy: Redrawing the Elections/‌Politics Line, 77 Tex. L. Rev. 1751, 1778–79 (1999) (arguing for the necessity of drawing a line between the election and politics spaces and suggesting one that Congress partially adopted when it enacted the Bipartisan Campaign Reform Act); Frederick Schauer & Richard H. Pildes, Electoral Exceptionalism and the First Amendment, 77 Tex. L. Rev. 1803, 1828 (1999) (suggesting that a doctrinal line between election-related speech and non–election related speech is just as feasible as any other doctrinal line the Court has to draw and proposing such a line). But see Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. Davis L. Rev. 663, 674–75 (1997) (contending that any effort to draw the line would be impossible because elections are “seamlessly connected to the informal political debates that continue in the periods between them”).

[10].     See, e.g., Schauer & Pildes, supra note 9, at 1805 (“If electoral exceptionalism prevails, courts evaluating restrictions on speech that is part of the process of nominating and electing candidates would employ a different standard from what we might characterize as the normal, or baseline, degree of First Amendment scrutiny.”).

[11].     See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 507 (2007) (Souter, J., dissenting) (pointing to public opinion polls suggesting “pervasive public cynicism” about the political process arising from the effects of money in politics).

[12].     This is captured in the popular slogan that “corporations are not people.” See generally Jeffrey D. Clements, Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (2012).

[13].     This is the basis for the antidistortion argument that served as a compelling justification for campaign finance regulations before Citizens United. See, e.g., McConnell v. FEC, 540 U.S. 93, 205 (2003); Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 658–60 (1990).

[14].     After McCutcheon, major news media outlets resignedly pronounced that the remaining contribution limits could no longer prevent the “few people with the most money [from being] the loudest voice in politics.” Editorial, The Court Follows the Money, N.Y. Times, Apr. 3, 2014, at A26, available at http:/‌/‌‌2014/‌04/‌03/‌opinion/‌the-court-follows-the-money.html.

[15].     Dean and Sol & Lillian Goldman Professor of Law, Yale Law School.

[16].     See pp. 31–43.

[17].     See McCutcheon v. FEC, 134 S. Ct. 1434, 1467–68 (2014) (Breyer, J., dissenting) (citing Citizens Divided 7–16, 80–94).

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