Representative Democracy: The Constitutional Theory of Campaign Finance Reform ROBERT POST The Tanner Lectures on Human Values Delivered at Harvard University May 1–3, 2013 Robert Post is Dean and Sol and Lillian Goldman Professor of Law at Yale Law School. Before coming to Yale, he taught at the University of California, Berkeley, School of Law (Boalt Hall). Dean Post’s subject areas are constitutional law, First Amendment, legal history, and equal protec- tion. He has written and edited numerous books, including Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (2012); For the Common Good: Principles of American Aca- demic Freedom (with Matthew M. Finkin, 2009); Prejudicial Appearances: The Logic of American Antidiscrimination Law (with K. Anthony Appiah, Judith Butler, Thomas C. Grey, and Reva Siegel, 2001); andConstitutional Domains: Democracy, Community, Management (1995). He publishes regularly in legal journals and other publications; recent articles and chapters include “Theorizing Disagreement: Reconceiving the Relationship between Law and Politics” (2010); “Constructing the European Polity: ERTA and the Open Skies Judgments,” in The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anni- versary of the Rome Treaty, edited by Miguel Poiares Maduro and Loïc Azuolai (2010); “Roe Rage: Democratic Constitutionalism and Backlash” (with Reva Siegel, 2007); “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era” (2006); “Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law” (2003); and “Subsidized Speech” (1996). He is a member of the American Philosophical Society and the Ameri- can Law Institute and a fellow of the American Academy of Arts and Sci- ences. He has an AB and PhD in history of American civilization from Harvard and a JD from Yale Law School. LECTURE I. A SHORT HISTORY OF REPRESENTATION AND DISCURSIVE DEMOCRACY Campaign finance reform is among the most vexing constitutional issues of our time. All sides agree that the stakes are momentous. For reformers, regulation is necessary to preserve the integrity of the Republic; for oppo- nents, regulation threatens the freedom of speech necessary for democratic self- governance. The constitutional arguments slide past each other with scarcely a moment of mutual engagement. If constitutional law is meant to affirm common principles of agreement, the debate over campaign finance reform could not be more disheartening. The decisions of the Supreme Court exemplify the problem. From the beginning the Court has been nothing but confused on the issue. Its first major opinion on the topic, Buckley v. Valeo,1 attempted a grand strategic compromise. Lacking a coherent intellectual foundation, the compromise quickly foundered,2 leaving the Court bitterly divided, sometimes leaning in favor of reform, sometimes against. In recent years, the Court has tilted decidedly against efforts to control campaign spending. Its recent decision in Citizens United v. Federal Elec- tion Commission3 can fairly be described as expressing profound distrust and suspicion at efforts to control campaign expenditures.4 For many, “it has practically supplanted Dred Scott as the worst Supreme Court decision of all time.”5 Although the decision in Citizens United was instantly controversial and unpopular,6 the majority of the Court plainly believed that it was reaffirming self-evident and fundamental principles of freedom of speech. “Under our law and our tradition,” Justice Anthony Kennedy wrote for the Court, “it seems stranger than fiction for our Government to make . political speech a crime. Yet this is the statute’s purpose and design.”7 Authoring a dissent for four members of the Court, Justice John Paul Ste- vens avowed with equal conviction that “the Court’s ruling threatens to undermine the integrity of elected institutions across the Nation.”8 Despite the intensity and eloquence, there was precious little common ground between the majority and the dissent. It is as if the two sides inhab- ited entirely different constitutional universes.9 There are many reasons for this horrifying disjunction, but in this lecture I shall concentrate on two.10 First, the Court has never been able to offer a disciplined and coher- ent explanation of its own First Amendment jurisprudence, which means [199] 200 The Tanner Lectures on Human Values that its opinions about freedom of speech tend to lean heavily on abstract doctrinal tests and overreaching rhetoric. The Court is ill equipped to think carefully about how campaign finance reform can be reconciled with fundamental First Amendment principles. Second, proponents of campaign finance reform have not tended to articulate justifications for regulation that are capable of inosculating with basic First Amendment principles.11 Justifications have instead tended to turn on concepts such as “distortion”12 or “equality,”13 ideas that are in ten- sion with essential premises of First Amendment doctrine. It is surprisingly difficult to articulate the fundamental republican value of “the integrity of elected institutions” in a manner that can be reconciled with received First Amendment principles. My hope, and it is a modest hope, is to use these Tanner Lectures to propose a solution to these two difficulties. By constructing a careful, dis- ciplined account of the structure of our First Amendment jurisprudence, I hope to illuminate how state interests in campaign finance reform may be reconciled with traditional constitutional commitments. I shall argue, in brief, that the purpose of First Amendment rights is to make possible the value of self- government, and that this purpose requires public trust that elections select officials who are responsive to public opinion. Government regulations that maintain this trust advance the constitutional purpose of the First Amendment. I shall not in these lectures propose a particular agenda of practical reform. I shall leave that project to those better versed than I in the actual dynamics of American politics.14 Nor shall I address how change can be mobilized and realized. I shall leave that to those more capable in these mat- ters.15 Instead, I shall seek to elaborate a constitutional framework of analysis in which First Amendment doctrine and campaign finance reform can be connected to each other in a coherent and theoretically satisfactory manner. My hope is that in the future this framework may serve as a basis for an actual dialogue between the parties to this vital but acrimonious controversy. I From its inception, the government of the United States has been built on the premise of self-government. We were founded upon a belief in the value of self- determination. But in our history this value has taken two distinct forms: republican representation and democratic deliberation. In repub- lican representation, the value of self- determination is realized when the people elect representatives who govern. In democratic deliberation, the [Post] A History of Representation and Discursive Democracy 201 value of self-determination is realized when the people actively participate in the formation of public opinion. Although a republic and a democracy each seek to embody the value of self- government, they do so in different ways. Republican principles can sometimes reinforce democratic principles, and they can sometimes contra- dict democratic principles. The Court inCitizens United builds on demo- cratic principles, which in contemporary constitutional law are embedded in First Amendment doctrine. The Court explains that “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.”16 The Court infers from these principles that “laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove that the restriction ‘fur- thers a compelling interest and is narrowly tailored to achieve that interest.’ ”17 The dissent in Citizens United also rests its analysis on the principle of self- government. But whereas the Court imagines self- government as a process of citizens communicating among themselves, the dissent instead envisions self- government as a process of representation. It imagines that self-government happens when people select representatives who will engage in the actual practice of lawmaking. It is of crucial importance for the dis- sent, therefore, “to assure that elections are indeed free and representative,”18 “because in a functioning democracy the public must have faith that its rep- resentatives owe their positions to the people, not to the corporations with the deepest pockets.”19 The dissent associates this faith with “compelling governmental interests in ‘preserving the integrity of the electoral process.’ ”20 The crux of the constitutional issue for the dissent is the relationship between the people and their representatives, a relationship that is medi- ated by the institution of elections. The crux of the constitutional issue for the Court is the capacity of the people freely to participate in public discussion, a capacity that is not mediated by elections. The Court and the dissent agree that constitutional analysis must turn on the value of self- government, but they differ about how this