Paths of Resistance to Our Imperial First Amendment

PATHS OF RESISTANCE TO OUR IMPERIAL FIRST AMENDMENTCitizens Divided: Campaign Finance Reform and the Constitution. By Robert C. Post. Cambridge, Massachusetts and London: Harvard University Press. 2014. Pp. viii, 165. $29.95.IntroductionIn 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.8Members 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.14In his new book, Citizens Divided: Campaign Finance Reform and the Constitution, Yale Law School Dean Robert Post15 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. …