UC Santa Cruz UC Santa Cruz Electronic Theses and Dissertations Title Voice v. Vote: The Supreme Court's Paradox of Political Participation in American Liberalism Permalink https://escholarship.org/uc/item/0gn799zf Author Snickars, Eric Stephen Publication Date 2015 License https://creativecommons.org/licenses/by/4.0/ 4.0 Peer reviewed|Thesis/dissertation eScholarship.org Powered by the California Digital Library University of California UNIVERSITY OF CALIFORNIA SANTA CRUZ VOICE V. VOTE: THE SUPREME COURT'S PARADOX OF POLITICAL PARTICIPATION IN AMERICAN LIBERALISM A dissertation submitted in partial satisfaction of the requirements for the degree of DOCTOR OF PHILOSOPHY in POLITICS by Eric Stephen Snickars September 2015 The dissertation of Eric Stephen Snickars is approved: __________________________________ Professor Daniel Wirls, chair __________________________________ Professor Eva C. Bertram __________________________________ Professor Mark Fathi Massoud ____________________________ Tyrus Miller Vice Provost and Dean of Graduate Studies Copyright © by Eric Stephen Snickars 2015 TABLE OF CONTENTS CHAPTER ONE – Liberalism, The Supreme Court, And The Paradox Of Political Participation In U.S. Election Law ..............................................................1 CHAPTER TWO – Liberty vs. Equality On The Supreme Court: The Conundrum Of Election Law Jurisprudence ..........................................................30 CHAPTER THREE – From Good Governance To Corporate Expression: The Road To Citizens United v. FEC ................................................................................69 CHAPTER FOUR – The Corporate Voice vs. The Individual Vote: Citizens United v. FEC ............................................................................................................112 CHAPTER FIVE – Canada's Egalitarian Election Law And The Liberal Conundrum Of Campaign Finance ........................................................................163 CONCLUSION ........................................................................................................198 iii ABSTRACT Voice v. Vote: The Supreme Court's Paradox of Political Participation in American Liberalism Eric Stephen Snickars What is the relationship between the voice of political expression and the vote that expresses this voice at the ballot box? How did a political philosophy develop under U.S. Supreme Court jurisprudence that put voice and vote values into conflict, ultimately favoring the corporate voice over that of the individual vote? I argue that the voice-vote dilemma is a case of the larger tension between liberty and equality in U.S. liberalism, as expressed by disagreements on the Supreme Court. Although the relationship between liberty and equality in U.S. liberalism throughout history has been multifaceted, the Court's decision in Citizens United v. FEC reflects a swing towards the dominance of libertarian values over egalitarian values on the Court, a built-in bias towards a uniquely exceptional notion of liberty that overwhelms egalitarian values to such an extent that meaningful campaign finance reform has stood little chance of success. iv Chapter One Liberalism, the Supreme Court, and the Paradox of Political Participation in U.S. Election Law Financing elections creates problems inherent to liberalism and democracy. Campaigns require resources not merely to succeed, but to operate in the first place. These resources come from supporters of candidates and policies and, when a donor provides resources in the form of money, conventional political wisdom dictates they would like something in return; therefore, potential conflicts of interest may arise between elected officials and their donor-benefactors. Take this scenario out of the theoretical, and we can add that we know that more spending means more access to lawmakers.1 Thus, this conflict – between those with and those without resources – creates an inherent problem of volume and weight: the voices of the moneyed donors are louder than those with fewer resources. Because less moneyed interests are "heard" less, their individual votes – one person one vote, according to the United States Supreme Court2 – lose power as popular sovereignty transmutes into legislative decision-making. Individual, less moneyed voices and votes become drowned out by corporate voices, voices that in turn influence the legislative vote, shaping policy. The U.S. Supreme Court approved this system – as a constitutional matter – in Citizens United v. FEC.3 1 Dan Clawson, Alan Neustadtl, and Mark Weller, Dollars and Votes: How Business Campaign Contributions Subvert Democracy (Philadelphia, Penn: Temple University Press, 1998). 2 Reynolds v. Sims, 377 U.S. 533 (1964). 3 558 U.S. 310 (2010). 1 This dissertation uses the history of election law reform and policy, legal and liberal theory, and comparative constitutionalism to explain the tension between vote and voice values in U.S. liberalism. What is the relationship between the vote and the voice in American liberal democracy and politics? How did U.S. notions of liberalism arrive at the collision between vote and voice values that the U.S. Supreme Court’s recent policies represent? Outside of changes in membership that shifted the balance of power on the Court, I argue that the tension between the vote and the voice is best understood as a consequence of (1) the ideological tension between liberty and equality in American liberalism as ultimately constructed in Supreme Court decisions and (2) the culture of legalism that privileges an exceptional form of liberty over other liberal values of equality, fairness, dignity, and justice. Therefore, the Court's ruling in Citizens United does not merely reflect a neo-liberal shift on the Court, but elevates the power of the voice – the corporate voice – over that of the individual vote. Statement of the Problem The Court's decision in 2010's Citizens United v. FEC drastically changed the law of campaign finance. In Citizens United, the Court stuck a federal law that had banned corporate spending during election cycles. As a result of this decision, corporations gained the power to spend unlimited amounts of money supporting and opposing candidates. Additionally, this decision changed a long-standing constitutional rule that corporations could only participate in elections in limited ways. This rule had stood for 34 years, and had even survived a constitutional challenge 2 seven years earlier. Citizens United therefore serves as a bookend, ending a U.S. campaign finance policy that had firmly and clearly limited corporate participation in elections, and opening a new chapter that furthers the principle that "money is speech."4 This decision is part of a new order in election law, one guided more by a Court valuing libertarian over egalitarian principles. Within few years of each other, the early 21st-century Court weakened the Voting Rights Act,5 upheld voter identification laws,6 and removed caps on individual campaign contributions.7 These new rules replaced an election law jurisprudence that had already indicated hostility towards reform since the inception of federal campaign finance rules. Although the Court had shown support for the right to vote though its malapportionment and voting rights decisions in the 1960s, a much different Court later used the First Amendment to strike much of Congress's first comprehensive campaign finance law under the reasoning that they stifled the voices of individuals.8 Between this 1976 libertarian decision and the 1960s egalitarian decisions, the Court had placed the individual vote against the individual voice. Although the Court's entrance into campaign finance law in 1976 greatly modified Congress's bipartisan agreement, there remained one clear understanding with regard to the participation of corporations in elections – a natural person had a 4 More specifically, the use of money during political campaigns is the "functional equivalent" of speech. Buckley v. Valeo, 424 U.S. 1 (1976). 5 Shelby County v. Holder, 570 U.S. ___ (2013). 6 Crawford v. Marion County Election Board, 553 U.S. 181 (2008). 7 McCutcheon v. FEC, 572 U.S. ___ (2014). 8 Buckley v. Valeo, 424 U.S. 1 (1976). 3 higher level of constitutional protection than did these non-natural persons. In other words, the government could clearly limit corporate participation in stricter ways that they could with natural persons. In Citizens United, the Court shattered this reasoning, holding that the form of the speaker – corporate or natural – should not matter. This led to the famous sound bite that "corporations are people." To understand how the Court pit the voice against the vote, we must first understand how the Court arrived at its Citizens United moment: I argue that (1) the Court's 50+ year history of election law decision-making briefly elevated the power of the vote, before raising the power of the voice above it in two stages, stages represented by Buckley v. Valeo and Citizens United v. FEC; (2) the Court's debates on campaign finance reflect the 100+ year history of national legislative attempts; (3) the Court's moves on campaign finance reform reflect its decisions regarding civil rights and liberties overall. To explain how the Court arrived at the point where it was willing to elevate the corporate voice over that of the individual vote in Citizens United, I explain that: (1) the culture of legalism that governs U.S. legal institutions indoctrinates law students into classical liberalism