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SYMPOSIUM
INTRODUCTION: BUILDING A FIRST
AMENDMENT–FRIENDLY DEMOCRACY
OR A DEMOCRACY-FRIENDLY FIRST
AMENDMENT
JOHANNA KALB† & BURT NEUBORNE‡
Last term’s 5–4 decision in McCutcheon v. FEC1 represents the
sixth consecutive decision of the Roberts Court invalidating a
campaign finance regulation on First Amendment grounds.2
McCutcheon struck down the federal cap on the total amount
($123,500) that any single donor could contribute to candidates and
parties during a federal election cycle,3 over and above the unlimited
amounts he could expend on his own.4 While the immediate impact of
† Jurisprudence Fellow, Brennan Center for Justice at NYU School of Law; Visiting
Associate Professor of Law, Yale Law School.
‡ Inez Milholland Professor of Civil Liberties, NYU School of Law, Founding Legal
Director, Brennan Center for Justice at NYU School of Law. Copyright © 2014 by
Johanna Kalb & Burt Neuborne.
1 134 S. Ct. 1434 (2014).
2 McCutcheon v. FEC, 134 S. Ct. 1434, 1442 (2014) (invalidating the aggregate
contribution limits); Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490, 2491 (2012)
(per curiam) (striking down a Montana ban on corporate political spending); Ariz. Free
Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2813 (2011) (invalidating the
triggered matching fund provisions of Arizona’s public finance system); Citizens United v.
FEC, 558 U.S. 310, 365–66 (2010) (permitting unions and corporations to make unlimited
independent election expenditures); Davis v. FEC, 554 U.S. 724, 729, 740 (2008)
(invalidating the “Millionaire’s Amendment” which had permitted candidates facing
wealthy self-funded opponents to raise larger contributions until they achieved parity with
their opponents); Randall v. Sorrell, 548 U.S. 230, 236 (2006) (striking down Vermont’s
mandatory campaign expenditure and contribution limits); see also Wisc. Right to Life,
Inc. v. FEC, 546 U.S. 410, 411–12 (2006) (per curiam) (vacating a district court’s ruling
that as-applied constitutional challenges were not permitted per McConnell v. FEC, 540
U.S. 93 (2003) in a challenge to federal law regulating electioneering communications).
3 David Earley, In McCutcheon, Justices Advance Troubling Vision of Democracy,
BRENNAN CENTER (Apr. 2, 2014), http://www.brennancenter.org/blog/mccutcheonjustices-advance-troubling-vision-democracy.
4 Since Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Court has drawn a
distinction between contribution limits, which are constitutionally permissible, and
independent expenditure limits, which are not. The Court reasoned that all campaign
finance limits implicate First Amendment interests, but that limits on independent
political spending (uncoordinated with any candidate or party) are the most troubling
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the decision is likely to be minimal in a campaign finance system
already awash in cash,5 McCutcheon’s enduring legacy may be its
vision of an entirely privatized political marketplace.6
The free market metaphor has a long lineage in the Court’s First
Amendment jurisprudence, dating back to Justice Holmes’ iconic
dissent in Abrams v. United States, where he argued that “the best test
of truth is the power of the thought to get itself accepted in the
competition of the market.”7 But just as the unregulated economic
marketplace does not always lead to the most competitive trade in
goods (hence the need for antitrust and securities regulation), an
unregulated political marketplace does not inevitably produce a
robust trade in ideas.8 Since Buckley v. Valeo, the Supreme Court has
repeatedly glorified the myth of the electoral free market, while
undervaluing the need for reasonable regulation to ensure a
genuinely open marketplace of ideas.9
because they “necessarily reduce[] the quantity of expression by restricting the number of
issues discussed, the depth of their exploration, and the size of the audience reached.” Id.
at 19. By contrast, contribution limits are a less significant restraint because a contribution
“serves as a general expression of support for the candidate and his views, but does not
communicate the underlying basis for the support.” Id. at 20–21. As a result, the Buckley
Court upheld the contribution limits in the challenged Federal Election Campaign Act,
but struck down the limits on independent expenditures. Id. at 25–26, 44–50.
5 The Roberts Court has already made it clear that no limits may be imposed on the
amounts a wealthy individual or corporation can spend independently to influence
campaigns. Buckley, 424 U.S. at 45; see Citizens United, 558 U.S. at 345–47 (extending
Buckley’s reasoning to strike down statutory restrictions on corporate independent
spending). Thus, McCutcheon’s immediate impact is to provide wealthy individuals with
the choice between buying influence indirectly by spending unlimited sums independently,
or buying influence directly by contributing virtually unlimited sums to party leaders.
6 As has been written, the Roberts Court’s view of the political marketplace has
striking parallels to the Lochner-era Court’s approach to the economic marketplace. See
Ellen D. Katz, Election Law’s Lochnerian Turn, 94 B.U. L. REV. 697, 698 (“[T]he present
[Roberts] Court confronts contemporary efforts to regulate the electoral process much
like the Lochner Court approached progressive wage and hour legislation a century
ago.”). During the Lochner years, the Court developed the constitutional right to freedom
of contract as a way of blocking efforts to regulate unfair employment contracts that
preyed on the poor. See Burt Neuborne, Ending Lochner Lite, 50 HARV. C.R.-C.L. L.
REV. __ (forthcoming 2014) (manuscript at 1) (on file with the New York University Law
Review) (describing the Lochner era as one “characterized by widespread judicial
invalidation of state and federal legislative efforts to set minimum terms of fairness in
employment contracts”). Similarly, the current Supreme Court majority is deploying a
rigid vision of freedom of speech to block efforts to regulate massive campaign spending
that distorts the free market in ideas. See Katz, supra, at 706–08 (comparing further the
Court’s campaign-financing holdings to its Lochner-era reasoning).
7 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
8 See David Cole, First Amendment Antitrust: The End of Laissez-Faire in Campaign
Finance, 9 YALE L. & POL’Y REV. 236, 242–43 (1991) (explaining how rising costs create
barriers to equal participation that undermine the integrity of elections).
9 See Buckley, 424 U.S. at 48–49 (finding “the concept that government may restrict
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Over the last decade, the conservative majority on the Roberts
Court has invoked free market metaphor to turn the First
Amendment into a deregulatory device. In so doing, as Ciara TorresSpelliscy explains in her contribution to this collection, the Court has
disavowed precedent that permitted government to correct
distortions in the political marketplace, particularly those caused by
accumulated wealth.10 As a result, after McCutcheon, the
government’s interest in regulating political spending is vanishingly
small—limited to preventing quid pro quo corruption (or the
transparent exchange of cash for votes) and requiring disclosure of
the source of campaign funds.11 If the deregulatory trend continues, as
Justice Thomas’s concurrence suggests it will, even the few remaining
limits on political spending are at risk.12
In its immediate aftermath, the McCutcheon Court was roundly
criticized for being divorced from reality13 and “incoherent.”14 More
the speech of some elements of our society in order to enhance the relative voice of others
is wholly foreign to the First Amendment,” the purpose of which is to encourage sharing
diverse ideas and create changes willed by the people). The notable exceptions were the
Court’s decisions in Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990),
and its precursor, FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). These cases
recognized that “[f]ree market capitalism threatens the free marketplace of ideas by giving
certain voices inordinate influence, not because of the power of their ideas, but because of
the volume they can generate for their voices with dollars earned through commercial
activities.” Cole, supra note 8, at 237.
10 Ciara Torres-Spelliscy, The Democracy We Left Behind in Greece and
McCutcheon, 89 N.Y.U. L. REV. ONLINE 112, 113–18 (2014).
11 See McCutcheon v. FEC, 134 S. Ct. 1434, 1450–51 (2014) (explaining distinction
between quid pro quo corruption and permissible influence); id. at 1459–60 (reiterating
the importance of disclosure in “minimiz[ing] the potential for abuse of the campaign
finance system”).
12 See Paul Blumenthal, The Roberts Court Tees Up the End of Campaign Finance
Reform in Its Latest Ruling, HUFFINGTON POST (Apr. 4, 2014, 7:36 AM),
http://www.huffingtonpost.com/2014/04/04/john-roberts-campaign-finance_n_5086235.html
(explaining how McCutcheon undermines the constitutionality of the “soft money” ban);
Richard L. Hasen, Die Another Day: The Supreme Court Takes a Big Step Closer to
Gutting the Last Bits of Campaign Finance Reform, SLATE (Apr. 2, 2014, 1:13 PM),
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulne
ss_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html (describing the threat
McCutcheon’s reasoning poses to base contribution limits); see also Devin Henry,
Campaign Finance Lawsuits in Minnesota and Other States Take Aim at Contribution
(Apr.
21,
2014),
http://www.minnpost.com/effectiveLimits,
MINNPOST
democracy/2014/04/campaign-finance-lawsuits-minnesota-and-other-states-take-aimcontributi (describing a suit filed challenging Minnesota limits on big-dollar donations
from “special sources”).
13 Dahlia Lithwick, Justice Roberts Hearts Billionaires, SLATE (Apr. 2, 2014, 5:28 PM),
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/mccutcheon_v_fec_
campaign_finance_decision_justice_roberts_doesn_t_believe.2.html.
14 Geoffrey R. Stone, The First Amendment Doesn’t Protect the Right to Buy the
BEAST
(Apr.
5,
2014),
American
Government,
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disturbing, though, is the likelihood that the Roberts Court’s vision of
politics is entirely coherent, with McCutcheon representing a new
beginning, rather than an end, to its deregulatory agenda.
In a notable passage in McCutcheon, Chief Justice Roberts
defined First Amendment rights of political participation to include
running for office, voting, urging others to vote, volunteering, and
contributing.15 As Yasmin Dawood notes, this account demotes
voting to a form of political participation under the First
Amendment, rather than what it was recognized in Yick Wo v.
Hopkins16 to be: the “fundamental political right . . . preservative of
all rights.”17 Reducing the status of voting rights makes sense in the
logic of the deregulated political marketplace. The McCutcheon
Court’s discussion of the aggregate contribution limits highlights its
concern that through this cap on political spending, the government
impermissibly privileged some forms of participation over others, and
thereby distorted the electoral debate.18 Put more plainly, the
wealthy, who would prefer to participate with cash, were the only
ones whose political activity was restricted.
View through such a lens, the primacy of voting rights could also
be challenged as unnecessarily redistributive. Voting is a form of
political participation in which each citizen’s influence is formally
equal. If the goal is to have a deregulated marketplace of ideas
shaped through individual interactions rather than government
intervention,19 the privileging of voting looks like a heavy finger on
http://www.thedailybeast.com/articles/2014/04/05/the-first-amendment-doesn-t-protectthe-right-to-buy-the-american-government.html.
15 If these words are more than rhetorical flourish, McCutcheon has the capacity to
revolutionize the law of democracy. Recognizing that the rights to vote and run for office
are protected by the First Amendment would subject laws inhibiting these rights to a far
more stringent level of scrutiny. See BURT NEUBORNE, MADISON’S MUSIC: ON READING
THE FIRST AMENDMENT (forthcoming 2014) (manuscript at 65) (on file with the New
York University Law Review) (describing the different levels of scrutiny employed in First
Amendment analyses).
16 118 U.S. 356, 370 (1886).
17 Yasmin Dawood, Democracy Divided: Campaign Finance Regulation and the Right
to Vote, 89 N.Y.U. L. REV. ONLINE 17, 18–19 (2014) (quoting Yick Wo, 118 U.S. at 370);
see also Deborah Hellman, Political Participation: A Hybrid Sphere, 89 N.Y.U. L. REV.
ONLINE 28 (2014) (expanding on Professor Dawood’s discussion on this point).
18 In striking down the aggregate-contribution limits, Chief Justice Roberts explained
that caps on financial contributions disadvantage those “who do not have ready access to
alternative mechanisms for supporting their preferred politicians and policies,” such as
volunteering time and energy on behalf of individual candidates. McCutcheon v. FEC, 134
S. Ct. 1434, 1449 (2014). The aggregate limits, he opined, prevented wealthy individuals
from full expression of their First Amendment rights by limiting their ability to engage in
this particular form of political participation. Id. at 1448–49.
19 See McCutcheon, 134 S. Ct. at 1448 (“The First Amendment ‘is designed and
intended to remove governmental restraints from the arena of public discussion, putting
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the scale. By choosing to represent voting as just one of many forms
of influence, the McCutcheon Court may reduce the relative value
and power of the most important egalitarian form of political activity,
in favor of permitting the most “engaged” citizens to increase their
control over the political process. What the McCutcheon Court fails
to acknowledge, perhaps quite intentionally, is that this move further
erodes the boundaries between economic and political power by
giving increased weight to the many forms of participation that are
facilitated by wealth.20 In the post-McCutcheon world, the most
engaged citizens are also the richest.
Recognizing the Court’s deregulatory mindset, many of the
voices in this collection explore ways to build a representative
democracy that works despite the First Amendment, not because of
it. McCutcheon’s silver lining, some have posited, is that it could
redirect the flow of financial contributions into the political parties.21
Samuel Issacharoff argues that this would be a positive development
because candidates and parties represent a more responsible and
accountable alternative to independent expenditure groups.22 The
essays by Professor Malbin and Professors Fishkin and Gerken both
extend and challenge this account. Malbin’s empirical evidence
undermines the assumption that the major political parties have been
weakened by campaign finance regulation and leads him to question
whether reinvigorating them with an influx of cash would lead to a
healthier democracy.23 Fishkin and Gerken reach a similar conclusion
but by a different path. In their view, the emergence of powerful
independent organizations (like Obama for America or the
Crossroads groups) represents a transfer of power within the parties,
but one that shifts authority away from the “party faithful” and
the decision as to what views shall be voiced largely into the hands of each of us . . . in the
belief that no other approach would comport with the premise of individual dignity and
choice upon which our political system rests.’”) (quoting Cohen v. California, 403 U.S. 15,
24 (1971)).
20 Hellman, supra note 17, at 28–29.
21 See, e.g., Jonathan S. Berkon & Marc E. Elias, After McCutcheon, 127 HARV. L.
REV. F. 373 (Jun. 20, 2014) (parties will be more likely than outside independent groups to
spend funds on “maintaining voter records, hiring field staff to work with grassroots
volunteers, and investing in technological infrastructure to make voter contact more
efficient”); Nathaniel Persily, Bringing Big Money Out of the Shadows, N.Y. TIMES (Apr.
2, 2014), http://nyti.ms/1gpjVgo (arguing that increasing fundraising capacity of parties will
decrease political polarization).
22 Samuel Issacharoff, Market Intermediaries in the Post-Buckley World, 89 N.Y.U. L.
REV. ONLINE 105, 109–110 (2014).
23 Michael J. Malbin, McCutcheon Could Lead to No Limits for Political Parties –
With What Implications for Parties and Interest Groups?, 89 N.Y.U. L. REV. ONLINE 92
(2014).
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towards a handful of small donors.24 In their framing, the problem is
not the weakening of the parties vis-a-vis other groups; it’s the
restructuring (or “hollowing out,” as Kate Andrias puts it) of the
parties in a way that diminishes their representative function. Thus,
they too question whether wealthier parties would improve
democratic outcomes. Andrias takes their line of analysis one step
further, moving beyond the party paradigm to advocate for rebuilding
other representative organizations that could provide a peoplecentered counterweight to big political spending.25
Another set of essays looks at restructuring the rules of the game
to reduce the importance of political spending in campaigns without
running into the limitations imposed by the Roberts Court’s
interpretation of the First Amendment. Ned Foley encourages
creative thinking about the ways that technology could help to
expand the importance of electoral spheres where the equality norm
reigns, like on the ballot and in public debates.26 But as Lisa
Manheim’s response reminds us, a technological fix comes with its
own new set of challenges, introducing new avenues for manipulation
and distortion. 27
The shift in focus from doctrine to structure evidenced in these
essays is a positive development in the field of election law. As Justin
Levitt observes, attempts to fashion an electoral system indirectly
through constitutional law often lead to results that are odd or even
perverse.28 Moreover, thinking through institutional solutions to our
electoral problems requires developing a much more serious and
realistic understanding of how we would like our politics of
representation to work.
Despite the participants’ innovative and praiseworthy efforts,
however, the notion that the Roberts Court’s First Amendment is an
obstacle rather than an aid in our exercise of self-government is a
tragedy. As Justice Breyer noted in his McCutcheon dissent, deciding
First Amendment cases without considering the quality of the
democracy they produce is to miss the point entirely.29 As the
exchange between Professors Levitt and Hasen over “electoral
24 Joseph Fishkin & Heather K. Gerken, The Two Trends that Matter for Party
Politics, 89 N.Y.U. L. REV. ONLINE 32 (2014).
25 Kate Andrias, Hollowed-Out Democracy, 89 N.Y.U. L. REV. ONLINE 48 (2014).
26 Edward B. Foley, The Speaking Ballot: A New Way to Foster Equality of Campaign
Discourse, 89 N.Y.U. L. REV. ONLINE 52 (2014).
27 Lisa Marshall Manheim, The Nudging Ballot? A Response to Professor Foley, 89
N.Y.U. L. REV. ONLINE 65 (2014).
28 Justin Levitt, Electoral Integrity: The Confidence Game, 89 N.Y.U. L. REV. ONLINE
70 (2014).
29 McCutcheon v. FEC, 134 S. Ct. 1434, 1466–68 (2014) (Breyer, J., dissenting).
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integrity” suggests, no consensus has emerged around an alternative
vision that could challenge the developing hegemony of the Roberts
Court’s First Amendment.30 Thus, while the participants’ thoughtful
essays have started us down the path, there is more work to be done
in developing a vision of a democracy-friendly First Amendment
(rather than a First-Amendment friendly democracy). We live now in
“an accidental democracy built by judges,”31 where the will of the
people has little influence on the behavior of government.32 If the
Roberts Court’s wholly deregulatory First Amendment triumphs, that
is not only our present, it is our future.
30 See Levitt, supra note 28; Richard L. Hasen, “Electoral Integrity,” “Dependence
Corruption,” and What’s New Under the Sun, 89 N.Y.U. L. REV. ONLINE 87 (2014).
31 Burt Neuborne, Felix Frankfurter’s Revenge: An Accidental Democracy Built by
Judges, 35 N.Y.U. REV. L & SOC. CHANGE 602, 662 (2011).
32 See generally Martin Gilens & Benjamin I. Page, Testing Theories of American
Politics: Elites, Interest Groups, and Average Citizens, PERSPECTIVES ON POLITICS
(forthcoming 2014), available at https://www.princeton.edu/~mgilens/Gilens homepage
materials/Gilens and Page/Gilens and Page 2014-Testing Theories 3-7-14.pdf (concluding
that “economic elites and organized groups representing business interests have
substantial independent impacts on U.S. government policy, while mass-based interest
groups and average citizens have little or no independent influence”).