Citizens Divided: Campaign Finance Reform and the by Robert C. Post, Pamela S. Karlan, Lawrence Lessig, Frank I.

By Robert C. Post, Pamela S. Karlan, Lawrence Lessig, Frank I. Michelman, Nadia Urbinati

The preferrred Court's 5-4 determination in Citizens United v. Federal Election Commission, which struck down a federal prohibition on self sustaining company crusade costs, is without doubt one of the such a lot debatable reviews in contemporary reminiscence. Defenders of the 1st modification greeted the ruling with enthusiasm, whereas advocates of electoral reform recoiled in disbelief. Robert submit deals a brand new constitutional concept that seeks to reconcile those sharply divided camps.

submit translates constitutional clash over crusade finance reform as an issue among those that think self-government calls for democratic participation within the formation of public opinion and people who think that self-government calls for a functioning process of illustration. the previous emphasize the price of loose speech, whereas the latter emphasize the integrity of the electoral technique. each one place has deep roots in American constitutional background. put up argues that either positions goal to nurture self-government, which in modern existence can flourish provided that elections are based to create public self assurance that elected officers are aware of public opinion. submit spells out the numerous implications of this easy yet profound perception. Critiquing the 1st modification reasoning of the courtroom in Citizens United, he additionally exhibits that the courtroom didn't in actual fact clutch the constitutional dimensions of company speech.

mixing historical past, constitutional legislations, and political concept, Citizens Divided explains how a ideal courtroom case of far-reaching end result could have been determined in a different way, in a way that will have preserved either First modification rights and electoral integrity.

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272 It was on the foundation of Brandeis’s conception of the First Amendment that the Court in the 1930s began to erect the structure of First Amendment doctrine. In the spare and muscular prose of Chief Justice Hughes’s pioneering 1931 opinion in Stromberg v. ”273 For the last eighty years, First Amendment jurisprudence has been founded on the premise that “speech concerning public affairs is . . ”280 The precise nature and scope of First Amendment rights are of course controversial. We debate endlessly about how the First Amendment ought to apply to particular circumstances.

283 This is now all so obvious that we never pause to ask why First Amendment doctrine did not emerge until the aftermath of World War I. By the time the Court came to decide Citizens United in 2010, the foundational status of First Amendment rights was simply assumed. The Court did not ask why First Amendment rights should trump the interests of representative integrity that were advanced to justify the campaign 41 42 THE LECTURES finance reform measures at issue in Citizens United. If the Court were pressed, however, it would have had to explain that the discursive democracy established by First Amendment rights takes precedence over representation as a pathway for American self-government.

211 The pathos of Progressive reforms, however, is that they were advanced within a structure of government that would inevitably remain representative. Every official nominated directly by the people in a primary would remain, after election, a representative. Every senator directly elected by the people would remain, after election, a representative. 212 Although they sought to connect government more directly with the people, Progressives could not escape the challenge of representation. They could not avoid the problem of how representatives might preserve the trust and confidence of their constituents.

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