Freedom of Speech and American Elections
by Robert Post
December 22, 2020
This interview with Robert Post, constitutional law scholar at Yale Law School and author of Citizens Divided: Campaign Finance Reform and the Constitution, was conducted and condensed by franknews.
Robert | I write on the first amendment and have published a book on the relationship between the first amendment and efforts to regulate campaign finance.
The United States has been limiting campaign contributions and expenditures for more than a hundred years. In the period since 1976 and its decision in Buckley v. Valeo, the Supreme Court has increasingly imposed stringent first amendment restrictions on any legislation seeking to regulate campaign contributions and expenditures, so that now many legislative limits are simply unconstitutional.
frank | Will you explain Buckley vs. Valeo?
The point of an election is to express the popular will. People distrust elections to the extent that they are experienced as expressing outcomes other than the popular will of the demos.
In particular, the legitimacy of elections diminishes as people come to believe that outcomes depend upon the contributions and expenditures of the wealthy.
In response to growing concerns that wealth was distorting the outcome of elections, Congress passed a law that put limits on independent expenditures and contributions. Congress limited both a person’s ability to spend money on her own campaign and a person’s ability to contribute to particular candidates.
Buckley vs. Valeo drew a sharp distinction between expenditures and contributions. It said that the First Amendment forbade capping independent expenditures, because independent expenditures were equivalent to political speech and hence could not be limited by Congress. But Buckley also held that Congress could limit contributions. This was because unrestricted contributions posed the danger of “corruption,” meaning that large contributors could in effect buy candidates who would respond by bestowing favorable government actions, like pardons, on favored contributors. The risk was of quid pro quo bribery and extortion. Buckley held that this risk justified strict limits on contributions
How do we move from Buckley vs. Valeo to Citizens United?
Citizens United is logically distinct from Buckley v. Valeo. Citizens United focuses on corporations. Since the progressive era, there has been a fear that wealthy corporations could buy candidates and elections.
Corporations are fabulously more wealthy than persons, because corporations do not die, and because they are organized to accumulate wealth.
They, therefore, tend to have a lot of money to spend. The views of corporations, however, are not necessarily those of the public. For this reason, there was fear that corporate spending could distort elections so that elections would no longer reflect public opinion. This country has for this reason limited corporate expenditures in elections since the early 20th Century. Citizens United struck down those limits as unconstitutional.
What does the new era litigation look like?
After Buckley, the question became the nature of limitations that the state can place on contributions to candidates. Are the contribution limitations too small? Independent expenditures were unregulatable, but when were expenditures “independent.” When were they actually coordinated with candidates and so merely disguised contributions, subject to legal limitations? There is also the question of disclosures. We now have a strict regime requiring that campaign contributions and expenditures be disclosed. We require those who pay for political advertisements to reveal their identity. A question looming on the horizon is whether these disclosure requirements are constitutional.
The basic issue is that the Court has characterized independent expenditures in political campaigns as public discourse, which is the kind of speech that lies at the heart of First Amendment protections. It is typically unconstitutional for the state to force you to reveal your identity in public discourse if you wish to remain anonymous. So why, then, can the state force you to disclose your identity with respect to political advertisements?
At present, the constitutional rules by which we govern campaign expenditures are totally different than the ordinary constitutional rules that govern speech.
As a general matter, the state cannot limit how much other people will support your speaking in public. Yet this structure of regulation is at the heart of current campaign finance regulations. Determining how to mesh ordinary first amendment doctrine with the kinds of regulations that most people think we need in campaigns has been a puzzle since the beginning.
That's where my work comes in. I try to think about the ways in which ordinary First Amendment doctrine can be rendered compatible with the kind of regulations on campaign finance that most people think we need.
How do you begin to do that?
To solve this puzzle, we need to understand why we have First Amendment rights in the first place. First Amendment rights flow from the fact that we live in a democracy, and that we consider it hugely important to govern ourselves. The question is how to create a government that's responsive to our wishes, so that we can enjoy the blessings of self-government. In our history, there have been two distinct models in which we imagine a government as being responsive to the demos.
The first model is that of representative government. We govern ourselves by electing representatives who decide what the government should do in our name. The Founders had in mind the model of representation when they wrote the Constitution. The Founders were fully aware that representative government works only if the people believe that their representatives speak for them. This means that there must be mechanisms that secure this ongoing act of identification. Foremost among these mechanisms are elections, which are designed so as to facilitate our identification with our representatives.
Three principles follow from the logic of representation. The first is the principle of equality. If in elections we decide who should represent us, each of us should have an equal right to contribute to that decision. The principle of equality is what underlies the maxim of “one person, one vote.” No person can vote twice. Everyone gets one and only one vote because each person has an equal right to influence the decision concerning who shall represent us.
The second principle that follows from the model of representation is that elections should be designed so as accurately express the public will. For this reason, we don’t allow entities to vote who are not part of the formation of the public will. For example, we do not let corporations or cities. The election should be structured accurately to reflect what the people who make up the demos think. This is the principle of non-distortion.
The third principle that follows from the model of representation is non-corruption.In a system of representation, we need to have an account of what it means for a representative to act ethically. We want representatives to think independently, but we also want them to be responsive to those who elect them. But how responsive should a representative be? It turns out that this question is exceedingly complicated. We don’t want representatives to do improper favors for constituents in return for contributions. We punish the quid pro quo bribe. There is some residual sense in which we expect representatives also to be acting with a mind to the public good as well as to the wishes of their constituents.
It turns out that the idea of corruption is very difficult to define. It is perfectly proper for representatives to be loyal to the political party that supported their campaign, for example. It is perfectly proper for representatives to be loyal to the views of the “base” that votes for them. But we tend to use the label “corruption” whenever we believe that representatives are being too responsive, or improperly responsive, or that certain constituents have an undue influence.
Drawing these lines is conceptually controversial because we don't have a very good idea about what corruption actually means. All we are sure about is that persons cannot engage in extortion or quid pro quo bribery.
In Buckley vs. Valeo, and in every case since, campaign finance regulation has been constitutionally defended according to the logic of the model representation. Advocates of campaign finance reform have invariably appealed to the principles of equality, anti-distortion, and anti-corruption.
There is, however, a second model of self-government that functions according to a logic that is quite different from that of representation. The model of representation works as self-government because we believe that our representatives speak for us. But why do we identify with our representatives? At the founding of the country, the United States was a “deference society.” The mass of people deferred to the leadership of a natural elite of the better sort — highly educated country squires, plantation owners, wealthy merchants, lawyers, and so on. Representatives spoke for the electorate because the electorate identified with these natural leaders and expected to follow them.
This structure of deference persisted until the 1820s, when the United States experienced the Jacksonian revolution. This is the period that de Tocqueville writes about, when the unwashed masses rebelled against the tutelage of the elite. It was the age of the common man. It was a time when our presidents all came from log cabins. Our leaders claimed to be just like us, to be ordinary people. So why, under this state of affairs, should the democratic masses believe that any particular representatives spoke for them?
The problem of identification was solved in the United States through the invention of the world's first system of mass democratic parties. The Jacksonian democratic party paved the way. People joined the party because they believed in the party’s platform. The party was then responsible for selecting candidates for office who would be loyal to the platform. The party thus became the guarantor that representatives spoke for the party faithful. It mediated between ordinary voters and candidates. The party thus solved the problem of self-governance by guaranteeing that representatives would speak for those who voted for them.
The two-party system created by the United States in the 1820s functioned throughout the 19th century. At the beginning of the Twentieth Century, however, with the coming of the progressive era, the party system fell apart. The public no longer believed that parties cared about their platforms, or about the people who were their members. The parties cared only about the patronage they could extract from the government. It was expensive to run a political party, and parties picked candidates who would hand out the goods, in the form of political appointments and contracts, rather than candidates who would loyally implement party platforms.
To the extent that the parties came to be viewed as corrupt, they could no longer perform their function of guaranteeing self-government by mediating between the electorate and their representatives. The progressive era is thus known as a time of direct democracy. The parties were systematically cut out of their middle-man role, and government was forced to deal directly with the public itself. This was the time of initiatives, referenda, and recalls. This was the time of the direct election of senators and the direct primary.
That was all to the good. But it drove to the fore once again the basic problem of self-government. If the party no longer guaranteed that representatives spoke for party members, how would members of the public come to believe that the representatives spoke for them? The solution that the country came up with in the early twentieth century is the concept of public opinion.
The idea of mass public opinion depends upon technical innovations that happened in the second half of the 19th Century. These include the widespread use of telegraphs and telephones. The creation of mass newspapers that instantaneously distributed the same news to everyone in the public. By the beginning of the twentieth century, persons marveled at how all members of the public were effectively participating in the same mass communicative system. John Q. Public was sitting at his breakfast table, reading his newspaper, and implicitly engage in a running conversation with other members of the public.
Persons began to understand themselves as participating in the common creation of an overarching public opinion. And this in turn inspired a second model of self-government. Persons could participate in the formation of public opinion, and representatives, in turn, could be held accountable to public opinion. Representatives thus became responsible to the public without the intermediating influence of the party. Once this thought began to take hold, it was only a short step to conclude that every person should have the right to participate in the formation of public opinion.
It may come as something of a surprise to you to learn that although we have had a First Amendment since 1791, there were no judicially enforceable first amendment rights until the 1930s. What we now call First Amendment rights were invented in the 1930s. The idea of a First Amendment right was first articulated in the Supreme Court in 1919, right after the first World War. At that time, the Wilson administration drastically censored and misinformed public opinion, and people began to say, "Well, if self-government depends upon government being responsive to public opinion, it ought to be a public opinion that actually reflects what people think. We ought to use the First Amendment constitutionally to protect the right of every person to form public opinion."
The important point to notice is that the idea of self-government at the heart of the First Amendment is not that of representation. My right to participate in public opinion bypasses representation altogether. The basic thought is that I can enjoy the good of self-government to the extent that I am free to participate in the formation of that public opinion which in a democracy directs the conduct of the state.
What is this idea of “public opinion” at the heart of the First Amendment? It is totally different than the idea of an election in the model of representation. An election is decisive — it decides questions. But within the framework of the First Amendment, public opinion is never decisive. Public opinion is instead a process. What the public is thinking at any given moment is always unknowable. It is constantly evolving as people change their minds, as they alter the intensity of their engagement, as they learn new facts, as new people begin to speak and others cease to speak. Public opinion changes as soon as someone new begins to speak and add a different voice. Public opinion is like a river that is ever-flowing, so that you can never enter the same river twice. Public opinion can't decide anything, it's just a process.
Public opinion, when viewed from the perspective of the First Amendment, is thus not at all like what a “public opinion” poll might reveal. The poll at most reveals a snapshot what people are thinking at a given moment in time, in response to a given question. But First Amendment rights protect the ability of people precisely to alter whatever may have been true at any given moment in times. First Amendment rights protect the right to participate in the processes by which an unknown and in principle unknowable public opinion is constantly being formed.
Let us call this second model of self-government the model of participatory democracy.
Within this understanding of public opinion, what happens to arguments about equality, distortion, and corruption?
The three principles that underlie the model of representation do not fare well when they are applied within the model of participatory democracy. Because public opinion doesn’t decide anything, the idea of equality that undergirds the model of representation makes no sense. With respect to what can we impose the value of equality within the model of participatory democracy? I cannot claim that my words ought to be equally influential as someone else’s (as I can claim that my vote ought to be equally influential). The speech of some might be persuasive and the speech of others might be unpersuasive. This is a feature of the model of participatory democracy, not a bug. I have no underlying right that others listen to me or take me seriously. My right is only to speak as I wish to speak. I cannot be silenced because my words are more popular or influential than the words of others. You can't go to a popular novelist and say, “you can't write another novel because you are too persuasive.”
The principle of non-distortion also has no application within the model of participatory democracy. This is because public opinion is a process, not an outcome. We can never know at any given time what public opinion actually is, and so a principle that prevents someone from speaking because they are distorting public opinion is inapplicable. It cannot be a ground for preventing someone from speaking in public discourse that their words distort public discourse, because public discourse is neither more nor less than the sum of what people say. Public opinion is whatever people make it.
Finally, the principle of non-corruption has no application to public discourse. Corruption is our way of defining the proper role of representatives. But representation has nothing to do with participating in public discourse.
What is interesting is that when arguing before courts, defenders of campaign finance regulation adduced all three principles — equality, non-distortion, non-corruption — as grounds for the constitutionality of regulations of campaign finance. Although all three principles make sense within the model of representation, none of them make sense within the model of participatory democracy. And, of course, our First Amendment doctrine is structured to advance the model of participatory democracy, not that of representation. And so the constitutional defense of campaign finance regulation has been problematic from the start.
To make matters worse, campaign finance regulation regulates speech that ordinary First Amendment doctrine places at the heart of constitutional protections. It regulates speech about self-government. But neither equality nor non-distortion even count as government interests within First Amendment doctrine; and corruption is at most an interest that needs to be weighed against the individual right to contribute to the formation of public discourse.
The best way to understand why campaign finance reform has endured such a checkered history within constitutional litigation is that it has been very hard to articulate appropriately compelling state interests that could outweigh the individual right to participate in public discourse.
At the moment, the only state interest that the court is committed to recognizing is that of preventing quid pro quo corruption. So while the campaign finance cases currently have a definite political bias — conservative judges have been hostile throughout — this is not, in my view, the fundamental constitutional problem. The problem is how to translate concerns that arise with a model of representation into terms that make sense within a model of participatory democracy, which is the model that underlies contemporary First Amendment doctrine.
How can you articulate it within the logic of the first amendment?
We can translate between models if we ask why the First Amendment protects the right to speak. It is so that persons can participate within public discourse and so experience the good of self-government. They can come to believe that the government is responsive to them. If I knew for a fact that even if I spoke no one would care, that I could never influence public opinion and so the government might become responsive to me, there would no longer be any constitutional reason to protect speech.
The question, then, is how our speaking to the public is connected to our sense of government responsiveness. I suspect that all would agree that elections are a major element in this causal connection. We speak because we hope to influence public opinion, which we expect will affect the outcome of elections, which in turn will make government decisions responsive to me. Elections thus constitute an important structural mechanism to maintaining the responsiveness of government officials to public opinion. What happens, however, if I come to believe that elections no longer serve that purpose, but instead that elections maintain the responsiveness of government officials to the views of the wealthy, who give large campaign contributions and support large independent expenditures? Then I can talk as much as I wish, but I am merely spitting into the wind. If I no longer believe that my speech affects the conduct of government officials, First Amendment rights no longer achieve their fundamental purpose, which is democratic legitimation. The failure of democratic legitimation is an argument that makes perfect sense, and indeed is highly compelling, within the model of democratic participation. My guess is that if constitutional arguments for campaign finance reform were framed in this way, it might make a significant difference in determining the kinds of reform that are constitutionally permissible.
Is there another way to look at this issue?
Another way of looking at this problem is to focus on the difference between politics and elections.
We protect first amendment rights so that persons can come to feel that the government is responsive to them, so that they can enjoy the goods of self-government. But let’s say that after much public debate we decide on a course of action; we decide to create a national health service. To do that the government must create an organization. An organization is an assembly of people and resources that is organized to achieve a task — in this case the provision of health services. Everything in an organization is instrumentally arranged so as to achieve the mission of the organization. Modern governments can barely accomplish anything except through the creation of institutions. If we wish to dispense justice, we create courts; if we wish to punish offenders, we build prisons; if we wish to educate young people, we establish universities; and so on. Each of these organizations is instrumentally arranged to achieve its purposes.
This is a very elaborate way of saying that we speak in public discourse in order to decide what our purposes should be. But once we decide on those purposes, we create organizations that are oriented to the fulfillment of these purposes. Everything in the organization is instrumentally arranged in this way, including the speech of persons who inhabit the organizations. So in a court, we do not permit lawyers or witnesses to speak except according to strict rules that are designed to achieve the purpose of justice, as a court understands justice. In universities, we allow students to speak in class in ways that advance the goal of education, as a teacher understands that goal. If the employees of the social securities organization could speak as they wished — if they could stand on their desks and sing instead of serving the public according to prescribed rules — the organization would never accomplish its mission.
Let’s call these organizational settings “managerial domains.” Within managerial domains, persons can speak only in ways that advance the managerial purpose of the domain. This is so pervasive, and so obvious, that it is mostly overlooked. Free speech rights are thus very different within managerial domains.
Now, what is an election? We can understand an election to be a way of organizing political decision-making. It is a discrete-process that has a definite mission. Aspects of an election are already highly managerially controlled. So, for example, you can’t campaign within a polling booth, because that kind of speech is incompatible with the mission of an election.
Most countries in the world sharply distinguish elections — which are bounded institutions — and politics. The election is a managerial structure designed to facilitate public choice. Because many speech restrictions are compatible with that logic, most countries restrict speech in elections far more strictly than they restrict speech in public discourse.
Right now, our courts imagine elections as public discourse — as ordinary politics. But we started from the premise that elections are confined managerial domains, we would regulate speech in electrons in all sorts of ways that are presently prohibited by the Constitution. In particular, we could justify all sorts of campaign finance reform. At the present moment, the courts see some forms of election speech as within a managerial domain — speech in a polling booth, for example, or the design of a ballot — but we do not generalize this insight, as do most other countries.
Has this sort of logic been argued?
In some very specific areas, but not in campaign finance.
Well, it is a very radical notion in the U.S. context that all of the election speech is not really freedom of speech, it's managed.
You mentioned other countries make that distinction. Why are we so reticent to make the same?
Because we are deeply libertarian in our attitude toward freedom of speech.
Have you seen any developments of people being more amenable to this idea?
Some scholars, but nothing in the real world.
How do you take it from a scholarly theory to the real world?
I'm not the person to talk to about that. My job is to try to think about what the right way to conceptualize First Amendment rights. It is somebody else's job to make that way actually happen.