Citizens Divided

The Supreme Court's 5-4 decision in Citizens United v. Federal Election Commission, which struck down a federal prohibition on independent corporate campaign expenditures, is one of the most controversial opinions in recent memory. Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.Post interprets constitutional conflict over campaign finance reform as an argument between those who believe self-government requires democratic participation in the formation of public opinion and those who believe that self-government requires a functioning system of representation. The former emphasize the value of free speech, while the latter emphasize the integrity of the electoral process. Each position has deep roots in American constitutional history. Post argues that both positions aim to nurture self-government, which in contemporary life can flourish only if elections are structured to create public confidence that elected officials are attentive to public opinion. Post spells out the many implications of this simple but profound insight. Critiquing the First Amendment reasoning of the Court in Citizens United, he also shows that the Court did not clearly grasp the constitutional dimensions of corporate speech.Blending history, constitutional law, and political theory, Citizens Divided explains how a Supreme Court case of far-reaching consequence might have been decided differently, in a manner that would have preserved both First Amendment rights and electoral integrity.

Democracy is not just a structure of elections and political institutions, but a mysterious and historically fluid set of ideas about the relationship between citizens and those who govern. With his characteristically subtle understanding of our cultural history, Robert Post shows how changing ideas of self-government illuminate one of the great political and legal controversies of our time., Robert Post offers a powerful critique of the Citizens United decision, and an original and compelling new perspective on how the Supreme Court should analyze campaign finance laws in light of the First Amendment’s commitment to electoral integrity.

Robert C. Post is Sol & Lillian Goldman Professor of Law and Dean of Yale Law School. Nadia Urbinati is the Kyriakos Tsakopoulos Professor of Political Theory in the Department of Political Science at Columbia University. She is the author of several books, including Democracy Disfigured: Opinion, Truth, and the People (Harvard); The Tyranny of the Moderns; Representative Democracy: Principles and Genealogy; and Mill on Democracy: From the Athenian Polis to Representative Government, which won the David and Elaine Spitz Prize for the best book in democratic theory.