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Tuesday, August 12, 2014
Citizens Divided: Campaign Finance Reform and the Constitution—A Book by Dean Robert C. Post ’77
The Nature of Public Opinion
In 2010, a sharply divided U.S. Supreme Court overturned a federal prohibition on independent corporate campaign expenditures—and ushered in a controversial new electoral era in which money has flooded political elections.
The landmark Supreme Court case Citizens United v. Federal Election Commission divided the country just as sharply as it did the court, which ruled 5-4 in favor of striking down a federal prohibition on independent corporate campaign spending. Reactions from both sides of the issue were equally vehement. Advocates of electoral reform railed against the idea of equating corporate spending with individual speech. Those who favored a broader interpretation of the First Amendment celebrated the ruling as a victory against government censorship.
In Citizens Divided: Campaign Finance Reform and the Constitution, Robert C. Post ’77 provides an insightful and innovative constitutional theory designed constructively to engage these two opposing perspectives.
Watch Post talk about his book here.
Based on his Tanner Lectures on Human Values delivered at Harvard University in 2013, Post’s analysis postulates that the fundamental argument is between two camps: those who believe self-government requires democratic participation in the formation of public opinion, and those who believe that self-government requires a functioning system of representation.
For those who insist on democratic participation in the formation of public opinion, free speech is paramount. And for those who focus on a functioning system of representation, the integrity of the electoral process is essential.
While acknowledging that each position has deep roots in American constitutional history, Post argues that both share a common aim: self-government. In contemporary life, all believe that self-government requires that elections be structured to sustain public confidence that elected officials are responsive to public opinion. Government therefore has a compelling constitutional interest in maintaining this kind of “electoral integrity.” In Citizens Divided, Post spells out the many constitutional implications of this simple but profound insight. Critiquing the First Amendment reasoning of the court in Citizens United, he also shows that the court did not understand the constitutional nature of corporate speech.
Post’s work is already becoming influential. In constructing his dissent in the recent case of McCutcheon v. FCC, U.S. Supreme Court Justice Stephen Breyer invoked and applied Post’s theory of “electoral integrity.”
Citizens Divided offers a unique blend of history, theory, and constitutional doctrine. It demonstrates how one of the most divisive and influential cases in the recent history of the Supreme Court might have come to a different conclusion had it understood the dependence of First Amendment rights on the value of electoral integrity.