Citizens United and Equality Forgotten


Since the landmark Buckley v. Valeo decision in 1976, the U.S. SupremeCourt has analyzed campaign finance reform efforts through the lens of the FirstAmendment. Because spending in the political realm has been equated with speech, the right to spend money has enjoyed the utmost constitutional protection. In 2010, the Court reaffirmed its commitment to this longstanding tradition when it handed down Citizens United v. FEC. The Court is correct to exalt First Amendment values-values central to our nation’s governmental and political systems. However, in elevating those values, the Court’s analysis pays scant attention to another central value: equality. In the world of modem political campaigns, as candidates compete for money from the few, the many are left out, in conflict with the constitutional promise of equality.

The Supreme Court’s Citizens United decision generated many heated responses and resulted in one minor dustup between President Obama and Justice Alito at the State of the Union address. The opinion also generated much consternation and debate among the general public. As federal and state legislators contemplated the impact of the decision, the Brennan Center for Justice at NewYork University School of Law gathered scholars, practitioners, and activists together to consider this turning point in the area of campaign finance reform. Spurred by “an urgent need to rethink the relationship of money, politics and the Constitution,” the Center’s day-long symposium analyzed the Citizens United decision, considered the First Amendment implications of the Court’s opinion, and placed it in the context of the current direction of the Roberts Court.

One symposium panel challenged the basic assumptions of the Court’s analytical framework for campaign finance reform, asking, “Should we look beyond the First Amendment to other constitutional principles?” Without detracting from the undeniable force of the First Amendment in this area, it is important to acknowledge that something is missing: as individual speech rights have been exalted, equality has been forgotten or overlooked. In my talk that day and in these pages, I emphasize various equality-based themes, posing a challenge to Citizens United and to the overall framework of campaign finance regulation inAmerica.

In this Article, I chiefly address concerns of participatory equality. In doing so, I primarily seek to draw attention to the need for all members of society to have equal opportunities to participate and be heard in the political process. This approach contrasts with the Court’s narrow focus on the effect of campaign fi-nance laws on individual speech, without sufficient concern for how that individual is part of the larger collective of people seeking to participate in the political process. Current campaign finance doctrine isolates each person and, in doing so, loses the forest for the individual trees.

I begin this Article in Part II with a brief overview of Citizens United, set-ting the stage for further discussion. In Part III, I discuss the importance of First Amendment speech rights in our political system. Political speech has been held as speech of the highest value, deserving of the utmost protection in order to en-able all to voice their perspectives and to benefit from an open and robust debate on the issues of the day. Moving from the general to the specific, in this Part I show how the Court applied a First Amendment analysis to protect campaign activities, with a focus on Buckley v. Valeo and its progeny. Having laid out the First Amendment framework the Court has employed for over thirty years, inPart IV I address the question of what else matters, exploring the competing values that should also inform the constitutional analysis of campaign reform measures. I argue that protecting the time of candidates and elected officials from the grind of fundraising is a compelling interest that needs to be recognized in order to enable our elected officials to act as representatives of the people. I suggest that the current state of campaign finance puts a disproportionate amount of power in the hands of the few – those with wealth and/or with wealthy friends – and is the modern equivalent of vote dilution. Further, as wealthy individuals maintain disproportionate control and influence, the republican form of government is threatened, which may raise constitutional concerns under theGuarantee Clause. Finally, I suggest that these concerns, firmly rooted in principles of equality in our government and politics, have been forgotten in the modern analysis of campaign finance reform generally, and in Citizens United in particular.

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