Ask the author: Robert Post – Citizens Divided

The following is a series of questions posed by Ronald Collins on the occasion of the publication of Citizens Divided: Campaign Finance Reform & the Constitution by Robert C. Post, with commentaries by Pamela Karlan, Lawrence Lessig, Frank Michelman, and Nadia Urbinati.

Welcome, Robert. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book, which comes on the heels of Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State.

Question: Your latest book was the outgrowth of two May 2013 lectures you gave at Harvard University.  These lectures, accompanied by commentaries, were delivered as the Tanner Lectures on Human Values (video of lectures available here).  Since 1976, notables such as Michel Foucault, Amy Gutman, Martha Nussbaum, Karl Popper, Richard Posner, John Rawls, Richard Rorty, Salmon Rushdie, Judith Shklar, Quentin Skinner, and Laurence Tribe, among others, have delivered these prestigious lectures. And I gather that Justices Ruth Bader Ginsburg and Elena Kagan will also be giving Tanner lectures in the coming months.

It must have been an incredible honor to be selected.  Tell us a little bit about that and your sense of these lectures since the time when you were a younger scholar.

RP:  An invitation to deliver the Tanner Lectures is among the highest honors a scholar can receive.  I can well remember pouring over Michael Walzer’s 1985 lectures on Interpretation and Social Criticism, and Justice Antonin Scalia’s 1994 lectures on Common Law Courts in a Civil-Law System.  These were important moments in my own intellectual development.  When I taught at Berkeley, I used to chair the university committee that invited Tanner Lecturers to campus. I was deeply pleased and moved to myself receive an invitation to deliver the Tanner Lectures at Harvard University.

Question:  You have an impressive list of four commentators who engaged you in heady dialogue.  How did that come about?  How were they selected?

RP:  Homi Bhabha, who is the chair of the Tanner Committee at Harvard, reached out to me to discuss possible commentators.  We had a good conversation, in which I suggested several names.  The ultimate selection was made by Harvard University.

Question:  In what may well be an unprecedented event in Supreme Court history, in his McCutcheon v. FEC dissent Justice Stephen Breyer cited to specific pages in your book, even before it came out in print.  The citation read:  “See generally R. Post, Citizens Divided: Campaign Finance Reform and the Constitution 7–16, 80–94 (forthcoming 2014).”  Do you know how he obtained an advance copy, if that is indeed what happened?  What light can you shed on this?

RP:  You might ask Justice Breyer this question. I can report that last fall I presented the substance of the Tanner Lectures in a number of venues, and that Justice Breyer was present on at least one occasion.  The text of the lectures was at the time available on-line.  Justice Breyer evidently liked the thesis of the lectures, and, knowing that the book was about to be published in late spring 2014 by Harvard University Press, must have requested (and received) an advance copy of the published version.  Cite checkers at the Court evidently determined the correct page numbers.

Question:  Speaking of Justice Breyer, just how closely aligned are your views on free speech and campaign finance regulations with his as expressed in Active Liberty: Interpreting our Democratic Constitution?  I am thinking of passages such as the following one from his book:  “[S]trong pro-speech protections risk imposing what is, from the perspective of active liberty, too severe a restriction upon the legislature – a restriction that would dramatically limit the size of the legislative arena that the Constitution opens for public deliberation and action. The presence of this . . . risk warns against use of special, strong pro-speech judicial presumptions or special regulation-skeptical of judicial review.”

Do you agree with all of that?  If so, where, if at all, do your views significantly differ from those advanced by Justice Breyer in his book and in opinions such as his McCutcheon dissent?

RP:  I am very attracted to Justice Breyer’s views in Active Liberty.  I remember being present in 2004 when he delivered at Harvard the Tanner Lectures on which the book is based.  Like Justice Breyer, I am drawn to the constitutional value of active citizenship.  Not surprisingly, however, Justice Breyer tends to explore this value from the perspective of a judge, whereas I adopt a somewhat more academic approach.

So, for example, in the firstlecture of my book I trace how judicially protected First Amendment rights were created in the twentieth century to compensate for the failure of American political parties during the Progressive Era to maintain the representative integrity of elections.  Historical questions of this kind are not at the center of Justice Breyer’s discussion.

The central thesis of my book is to distinguish between two forms of American constitutional self-government.  In the first and historically prior form of self-government, self-determination consists of a process of representation mediated by elections.  I call this view of self-government “representation.”  In the second form of self-government, which did not emerge until the twentieth century, self-determination consists of processes of ongoing communication constituted by First Amendment rights.  I call this view of self-government “discursive democracy.” It turns out that representation and discursive democracy possess entirely different constitutional structures and properties.  The tension between representation and discursive democracy is at the heart of the doctrinal confusion of cases like Citizens United.  My book emphasizes theoretical and academic distinctions of this kind, which differ in focus from Justice Breyer’s prior work.

Question: You write that the “Justices who joined the majority opinion in Citizens United did not seem aware that the constitutional value of electoral integrity is implicit in their own reliance on First Amendment rights.”  In this regard you add that your hope in this book is to “build a bridge between the majority and the dissent by illuminating the entailments of our own contemporary commitment to First Amendment ideals.”  Tell us about that “bridge” you hope to construct between the Court’s so-called conservative and liberal wings?

RP:  The Justices who joined the majority opinion in Citizens United genuinely believe in the First Amendment.  They believe that First Amendment rights are constitutionally fundamental because, as Justice Anthony Kennedy writes in his opinion for the Court in Citizens United, “speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”

Like the conservative Justices in Citizens United, I share a deep commitment to the First Amendment as a guarantor of American democracy.  The book invites those who share this belief to probe its underlying assumptions.  The book argues that First Amendment rights can underwrite democratic self-government only if people are free to participate in the formation of public opinion and only if people simultaneously believe that government is responsive to public opinion.  Both preconditions must be true if First Amendment rights are to sustain discursive democracy.

If we ask why people might believe that government is responsive to public opinion, the only plausible answer is that they trust elections to produce officials who are responsive to public opinion.  I use the term “electoral integrity” to refer to the property of elections of selecting officials who people believe are responsive to public opinion.

The First Amendment rights prized by the conservative wing of the Court require electoral integrity in order to fulfill their constitutional purpose.  This implies that the maintenance of electoral integrity must count as a compelling government interest within First Amendment doctrine.  The book reaches out to the conservative Justices to explain this important implication of their own constitutional commitments.  The difficulty is that both Citizens United and McCutcheon presently deny the existence of any compelling government interest in campaign finance reform cases other than that of eliminating corruption.

The liberal wing of the Court, by contrast, tends to place a higher constitutional value on representation than on discursive democracy.  For decades now the liberal wing of the Court has been defending campaign finance reform in terms of values like equality, anti-distortion, and anti-corruption.  The book argues that although these values are essential to representation, they are highly problematic within the context of discursive democracy.  The book offers the liberal wing of the Court a way to translate its commitment to representative integrity into terms that are compatible with the discursive democracy established by the First Amendment.  The value of electoral integrity captures much of what attracts liberal Justices to the importance of maintaining the integrity of our electoral system.

Because electoral integrity is essential to both the right and left wings of the Court, it holds the potential to generate a shared jurisprudence of campaign finance reform.

As a side benefit, the concept of electoral integrity also offers a useful constitutional framework for analyzing the constitutional issues involved in partisan gerrymandering cases, another set of decisions which has given the Court deep theoretical trouble.

Question:  You seem to actively support the idea of altering the way a majority of the Roberts Court currently applies the “strict scrutiny”/“compelling interest” test in First Amendment cases involving campaign finance laws.  That is, as I understand it, you favor relaxing the strict scrutiny test in this area as it is currently applied.  By the same measure, you seem to approve of the idea of making it easier for the government to demonstrate a compelling state interest.  Generally speaking, is that true?  Please explain.

RP:  I argue that sustaining electoral integrity is a compelling state interest.  Because electoral integrity turns on what people believe, electoral integrity is revealed in public opinion.  Discerning the state of electoral integrity is thus a little like making a political judgment.  Legislatures are rather better situated to make such judgments than are courts.  This does not imply, however, that courts should be read entirely out of the process.  This is because campaign finance reform legislation can serve constitutionally inappropriate purposes, like incumbent entrenchment, as well as constitutionally compelling purposes, like enhancing electoral integrity.

Question:  When it comes to campaign speech in the form of election expenditures, do you think “leveling the playing field” is an acceptable and even compelling government objective?

RP:  In the book I argue that “leveling the playing field” is an interest that makes sense within representation.  Systems of representation turn on decisions, some of which are effected by elections.  Everyone is entitled to exercise equal influence on the outcome of elections.  We call this the “one man one vote” principle.  This principle grounds the state’s interest in “leveling the playing field.”

Discursive democracy, by contrast, does not turn on decisions.  Discursive democracy instead postulates a continuous process of public opinion formation, in which people constantly participate.  Public opinion has no stopping point.  It makes no decisions.  As a consequence, there is no outcome with respect to which First Amendment rights can be made “equal.”

The core function of First Amendment rights is instead to encourage participation in public discourse so that persons may come to identify with the process of public opinion formation and consequently with the government itself.  The hope is that people may come to believe that government is potentially responsive to them, and so to identify with the government as “their” government.  This sort of ownership is the precondition of democracy.  I call it “democratic legitimation.”  First Amendment doctrine encourages democratic legitimation by protecting the right of individuals to speak in ways they regard as adequate to their own convictions.  To truncate participation in public opinion is pro tanto to circumscribe the potential for democratic legitimation.

Democratic legitimation would be undermined if the state were to limit participation in public discourse for the reason that all should speak “equally” (whatever that may mean). The Court was correct in Buckley to conclude that the equality interest is in tension with the purpose and function of discursive democracy.  Democratic legitimation requires a right of meaningful participation in the formation of public opinion, not an equal right to participate in the formation of public opinion.  If my participation in public discourse is so unequal to yours that I lose all hope of influencing public opinion, democratic legitimation fails for the lack of a meaningful right of participation, not for the lack of an equal right of participation.

Question:  You write that whether to “encase elections in . . . a managerial domain” permitting the government more discretion is “a difficult, fraught, empirically based calculus.”  Can you tell us more about that constitutional calculus?  Are you calling for some kind of empirical proof that the government must tender to meet its burden of proof?  If so, does that involve empirical proof of people’s subjective or objective intent?

RP:  The constitutional value of self-government inheres in the beliefs of people.  This is because people cannot experience the value of self-government unless they believe themselves to be self-governing.  In Citizens United, the Court fails to appreciate that one important purpose of elections is to sustain this belief in self-government.

In this regard, elections are institutions that have functions, in the same way as do other government institutions like courts or schools or bureaucracies.  All such government institutions create “managerial domains” in which they regulate speech as necessary to achieve their functions.  My book suggests that as a matter of last resort we might also consider classifying elections as managerial domains in which speech can be regulated as necessary to maintain electoral integrity.

We may be driven to considering this possibility because without electoral integrity all First Amendment rights lose their meaning.  Without electoral integrity persons no longer believe that government is responsive to their speech and as a consequence First Amendment rights can no longer produce democratic legitimacy.  Conceiving of elections as managerial domains would in effect suspend ordinary First Amendment rights within electoral domains in order to save the constitutional value of ordinary First Amendment rights outside of electoral domains.

I discuss in the book how we already treat many aspects of elections as managerial domains.  The state regulates speech within elections in ways that we would not permit the state to regulate speech outside of elections.  This is most obvious with respect to speech at local polling places. But it is also true with respect to the many disclosure requirements that we impose on election speech but that we could not impose on speech generally.  This is also true with regard to the regulations of association required by the direct primary system.

I deduce from these phenomena that the question of treating elections as a managerial domain is not a binary and totalizing one.  The transition to a managerial domain is a complex phenomenon.  Sometimes we make that transition without even knowing that we have crossed into a different form of First Amendment analysis.

Question:  As you see it, if the government must demonstrate a compelling interest rather than merely assert one, is a reviewing court bound by a trial court’s judgment of the proof tendered or can an appellate court consider the matter de novo?

RP:  The thrust of the book is to encourage courts (and commentators) to ask the right questions when analyzing the constitutionality of campaign finance reform legislation. That is a tremendous challenge, because (in part) it requires us to distinguish the constitutional value of representation from the constitutional value of discursive democracy.  A great intellectual change would need to take place before we could ever reach an issue as granular as the division of authority between trial and appellate courts.  I am confident that if courts can manage to get the big picture right, they will also be able to deal competently and effectively with the subsequent procedural details.

Question:  In his commentary, Professor Frank Michelman argues that if courts were to adopt your suggested approach to evaluating campaign finance laws, it “is not immediately clear what can remain of First Amendment strict scrutiny.”  Is he correct?

RP:  Strict scrutiny is not a singular well-defined concept.  It means one thing in the context of cases like Grutter v. Bollinger, and it means something else in the context of cases like McLaughlin v. Florida.  The framework I am proposing could live with the form of strict scrutiny that the Court employed in Grutter.  That having been said, courts that review the constitutionality of campaign finance reform legislation must be sensitive to both the freedom of individuals to participate in public discourse and the maintenance of electoral integrity.  “Strict scrutiny,” even in the style of Grutter, may not be the most useful tool for this task.

Question:  You quote, apparently approvingly, Cass Sunstein to the effect that Buckley v. Valeo is “the modern-day analogue of the infamous and discredited case of Lochner v. New York.” Assuming you agree with that statement, would it be fair to say that you likewise disagree with the original ACLU challenge of the law on behalf of Senators Eugene McCarthy and James L. Buckley?  In that respect, do you think that Justices William Brennan and his colleagues in Buckley got it wrong?

RP:  Buckley was a Promethean effort to compromise between self-government as representation (by allowing limits on campaign contributions) and self-government as participation in public opinion formation (by striking down limits on independent campaign expenditures).  The compromise was without coherent theoretical foundations.   It was instead advanced as a practical way to accommodate the tension between these two ideals of self-government.  Unfortunately, the lack of an intellectual foundation has now caught up with Buckley and has undermined whatever pragmatic justification may have originally recommended the decision.

Buckley’s compromise never satisfied either side, and the decision was divisive from the moment it was issued (which is the point for which I cite Professor Sunstein).  Given that Citizens United has exponentially inflamed the controversy that engulfs campaign finance reform legislation, the intellectual shambles of Buckley are no longer tolerable.  The need for a coherent constitutional approach has become critical.

Question:  Because you delivered these lectures in 2013, your book understandably does not discuss the Court’s 2014 decision in McCutcheon v. FEC.  That said, I take it you disagree with the majority opinion in McCutcheon.  If so, tell us why you think that giving to, say, nine candidates does not have a corrupting impact while giving to ten does.

RP:  I would not analyze the question posed by McCutcheon in terms of corruption. As I argue in the book, corruption is a constitutional principle that belongs to the ideal of representation.  It fits only awkwardly if at all with the discursive democracy that underwrites the majority’s First Amendment approach.  The book argues that we are deeply uncertain about the constitutional meaning of corruption even within the narrow context of representation.  My own belief is that the concept of “corruption” in judicial opinions has now become a bankrupt construct and that courts need to develop a new and theoretically defensible framework of analysis.

Question:  You quote, albeit approvingly, Justice Antonin Scalia’s dissent in Washington State Grange v. Washington State Republican Party to the effect that the “robust First Amendment freedom to associate belongs only to groups ‘engage[d] in expressive association’ . . . and ‘there is only minimal constitutional protection of the freedom of commercial association.’” Given that, do you disagree with Laurence Tribe, who in Nike v. Kasky argued that First Amendment protection should be extended to corporate speakers such as the one in that case?

RP:  When the Court first analyzed the question of corporate First Amendment rights in First National Bank of Boston v. Bellotti, it was quite careful to say: “The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question.” I agree with Bellotti.

Paradigmatic First Amendment rights protect speakers so that they can participate in the formation of public opinion and experience the subjective value of democratic legitimation.  Ordinary commercial corporations cannot experience the value of democratic legitimation, and so they cannot hold First Amendment rights in the same way as persons.  But the speech of commercial corporations can nevertheless serve First Amendment values by providing information to persons who wish to participate in public discourse.  This is how Bellotti analyzed the issue of corporate speech, and in the book I adopt the perspective of Bellotti.

So, to answer your question, ordinary commercial corporations can possess First Amendment rights, but their rights serve different purposes and so have different properties than the paradigmatic First Amendment rights enjoyed by individuals who participate in public discourse.  Were this not the case, a vast swath of commercial law regulating the internal procedures and rules of corporations would have to undergo radical constitutional revision.

Question:  You write that “Justices Scalia and Thomas jettison their originalism whenever it is inconsistent with their constitutional convictions, as for example in the area of affirmative action.”  Might you elaborate a bit more on that contention?

RP: I analyzed this question in some detail in an article I co-authored with Reva Siegel eight years ago:  Originalism as a Political Practice: The Right’s Living Constitution. One can see the point clearly in areas like affirmative action or regulatory takings, where originalists do not engage with eighteenth- or nineteenth-century sources.

In the context of Citizens United, the Framers of our Constitution manifestly privileged representation over discursive democracy.  It follows that an originalist who cares about original understandings should prioritize the efforts of Congress to purify our system of representation over the First Amendment rights necessary to sustain discursive democracy.  Judicially enforced First Amendment rights, and the discursive democracy they sustain, did not even emerge until the third decade of the twentieth century.  Both Justices Scalia and Thomas nevertheless voted with the majority to privilege discursive democracy over representation.  Neither questioned the originalist foundations for this choice.

Question:  Among other things, your book is much informed by political theory.  Do you think that the Justices (or at least those in the Citizens United and McCutcheon majorities) need to incorporate such theory into their First Amendment jurisprudence concerning campaign finance laws?

RP:  The Court has often affirmed that the First Amendment is the “guardian of our democracy.”  Insofar as one truly believes that the First Amendment embodies (in the words of Justice Samuel Alito) “our Nation’s commitment to self-government,” it is necessary to understand the nature of that commitment.  Political theory can be helpful, although not necessary, for this task.

In the last analysis, our historical constitutional understandings of self-government should determine our First Amendment commitments.  That is why the first lecture in the book concentrates on the history of the American constitutional concept of self-government.  I myself found that political theory was extraordinarily helpful in understanding the historical development of that concept.

Question:  Recently, there have been proposals to amend the First Amendment in light of the Court’s campaign finance cases.  For example, Justice John Paul Stevens suggested one, and more recently the Senate Judiciary Committee approved one by a ten-to-eight margin.  Do you favor or oppose either or both of these proposed amendments?  And why or why not?

RP:  In my view, the chances of amending the First Amendment are zero.  But if the campaign to amend the First Amendment focuses public discussion on the deficiencies of the Court’s current jurisprudence, so much the better.  First Amendment doctrine continuously evolves to reflect changing understandings of American democracy.  There is no reason not to expect this process to continue in the future.

Question:  Your book closes (in the endnotes, that is) with a quote from Angel Surrounded by Paysans, a poem by Wallace Stevens. Why?

RP:  The book closes by discussing Pam Karlan’s appeal to “the better angels of our nature.” These angels refer to the guiding ideals of the Republic.  Stevens’ magnificent poem yields profound insights about the nature of such angels.  They are necessary for meaningful human life, but, as the angel who narrates Stevens’ poem announces, they are only “half seen, or seen for a moment,” and “a turn of my shoulder and quickly, too quickly, I am gone.”

Self-government is a necessary, guiding ideal of our Republic.  But like all such ideals it is too easily and too quickly lost if we do not make the effort necessary to understand and protect it.  It would be a national tragedy if the angel of self-governance were to withdraw from our national life.  The book is my attempt to invite the kind of serious reflection that may entice the angel of self-governance to remain among us.

Question:  Do you have another book in the works? If so, what can you tell us about it?

RP:  I am still in the midst of finishing Volume X of the Oliver Wendell Holmes Devise History of the United States Supreme Court, which will cover the period 1921-30 when William Howard Taft was Chief Justice.  My volume is shamefully overdue.  When I became dean I took on a co-author, my magnificent colleague John Witt, and I hope that together we shall make good progress in the next few years.