by Kelsey Spector
While most of us are already familiar with Citizens United, my thesis aimed to cast a new light on some of the basic arguments which have driven the Court’s decisions in cases governing the use of money in politics. Advancing the thesis that a concern for procedural equality is integral to the institutional health of our republic and the proper treatment of citizens, I make the case that the Court was misguided in its categorical rejection of a government interest in equality.
I begin by presenting an empirical record, which focuses on the rise of super PACs and their coordination with campaigns, to challenge the notion that independent expenditures are really independent and don’t give rise to the reality or appearance of corruption. Given the inadequacy of these arguments, I then move to reexamine the Court’s logic in the cases which determined the constitutional status of campaign finance regulations. Highlighting key features of precedent, I make the case that the Court has been increasingly trending towards an absolute interpretation of the First Amendment, one in which the right to free speech is not properly subject to regulation. Though the majority justified these decisions in terms of self- government and the importance of the diverse and vibrant public discourse therein, I argue that this conception of the First Amendment right to free speech is not capable of realizing the democratic goals for which it was intended.
Rather, given contemporary inequalities, I argue that this conception of the political arena systematically excludes many, if not most, citizens from meaningful access. While it is a common refrain of those opposed to regulations that their position represents neutrality, I argue that it in fact endorses a “laissez-faire marketplace of ideas,” one which is incompatible with the democratic ideals embedded in our constitutional tradition. In stark contrast to the alternative model for self-government, which often goes under the title “deliberative democracy,” I argue that the marketplace of ideas is incapable of creating fair political procedures which maintain the ability of our representatives to be responsive to the needs of their constituents.
Beyond measures of institutional health, I further argue that the Court’s conception of the First Amendment right is in tension with the growing understanding that meaningful commitments to liberty, and the political liberties in particular, require attention to the opportunities with which citizens are presented to exercise them. Framing this interest in terms of “procedural equality,” or as Rawls coined, “the fair value of the political liberties,” I make the case that a government interest in equality absolutely merits attention when considering political participation in democratic processes. If the Court does not begin to take these arguments seriously, our commitment to liberty and our identity as a democratic nation are themselves implicated.
In light of my skepticism as to whether the Court will actually grant the proper attention to arguments deriving from commitments to fair political procedures and procedural equality, I conclude with a brief overview of policy solutions to the systemic corruption of our democratic institutions and our waning commitment to the public discourse. Reviewing new models for public finance, I highlight one in particular which can help provide access to the political arena and free representatives from the pressures of fundraising while still avoiding problems deriving from the bureaucratic control of money in elections.