The Supreme Court's 5-4 decision in Citizens United v. Federal Election Commission, which struck down a federal prohibition on independent corporate campaign expenditures, is one of the most controversial opinions in recent memory. Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.
Post interprets constitutional conflict over campaign finance reform as an argument between 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. The former emphasize the value of free speech, while the latter emphasize the integrity of the electoral process. Each position has deep roots in American constitutional history. Post argues that both positions aim to nurture self-government, which in contemporary life can flourish only if elections are structured to create public confidence that elected officials are attentive to public opinion. Post spells out the many 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 clearly grasp the constitutional dimensions of corporate speech.
Blending history, constitutional law, and political theory, Citizens Divided explains how a Supreme Court case of far-reaching consequence might have been decided differently, in a manner that would have preserved both First Amendment rights and electoral integrity.
About the Author
Nadia Urbinati is the Kyriakos Tsakopoulos Professor of Political Theory in the Department of Political Science at Columbia University. She is the author of several books, including Democracy Disfigured: Opinion, Truth, and the People (Harvard); The Tyranny of the Moderns; Representative Democracy: Principles and Genealogy; and Mill on Democracy: From the Athenian Polis to Representative Government, which won the David and Elaine Spitz Prize for the best book in democratic theory.
Table of Contents
I The Lectures
1 First Lecture: A Short History of Representation and Discursive Democracy 3
2 Second Lecture: Campaign Finance Reform and the First Amendment 44
3 Out-Posting Post Lawrence Lessig 97
4 Legitimacy, Strict Scrutiny, and the Case Against the Supreme Court Frank Michelman 106
5 Free Speech as the Citizen's Right Nadia Urbinati 125
6 Citizens Deflected: Electoral Integrity and Political Reform Pamela S. Karlan 141
7 Representative Democracy Robert C. Post 155