Representative Democracy: The Constitutional Theory of Campaign Finance Reform

Representative Democracy:
The Constitutional Theory of

Campaign Finance Reform
ROBERT POST
The Tanner Lectures on Human Values
Delivered at
Harvard University
May 1–3, 2013
Robert Post is Dean and Sol and Lillian Goldman Professor of Law
at Yale Law School. Before coming to Yale, he taught at the University of
California, Berkeley, School of Law (Boalt Hall). Dean Post’s subject areas
are constitutional law, First Amendment, legal history, and equal protec-
tion. He has written and edited numerous books, including Democracy,
Expertise, Academic Freedom: A First Amendment Jurisprudence for the
Modern State (2012); For the Common Good: Principles of American Aca-
demic Freedom (with Matthew M. Finkin, 2009); Prejudicial Appearances:
The Logic of American Antidiscrimination Law (with K. Anthony Appiah,
Judith Butler, Thomas C. Grey, and Reva Siegel, 2001); and Constitutional
Domains: Democracy, Community, Management (1995).
He publishes regularly in legal journals and other publications; recent
articles and chapters include “Theorizing Disagreement: Reconceiving
the Relationship between Law and Politics” (2010); “Constructing the
European Polity: ERTA and the Open Skies Judgments,” in The Past and
Future of EU Law: The Classics of EU Law Revisited on the 50th Anni-
versary of the Rome Treaty, edited by Miguel Poiares Maduro and Loïc
Azuolai (2010); “Roe Rage: Democratic Constitutionalism and Backlash”
(with Reva Siegel, 2007); “Federalism, Positive Law, and the Emergence
of the American Administrative State: Prohibition in the Taft Court Era”
(2006); “Foreword: Fashioning the Legal Constitution: Culture, Courts,
and Law” (2003); and “Subsidized Speech” (1996).
He is a member of the American Philosophical Society and the Ameri-
can Law Institute and a fellow of the American Academy of Arts and Sci-
ences. He has an AB and PhD in history of American civilization from
Harvard and a JD from Yale Law School.
LECTURE I.
A SHORT HISTORY OF REPRESENTATION
AND DISCURSIVE DEMOCRACY
Campaign finance reform is among the most vexing constitutional issues

of our time. All sides agree that the stakes are momentous. For reformers,
regulation is necessary to preserve the integrity of the Republic; for oppo-
nents, regulation threatens the freedom of speech necessary for democratic
self-governance. The constitutional arguments slide past each other with
scarcely a moment of mutual engagement. If constitutional law is meant to
affirm common principles of agreement, the debate over campaign finance
reform could not be more disheartening.
The decisions of the Supreme Court exemplify the problem. From the
beginning the Court has been nothing but confused on the issue. Its first
major opinion on the topic, Buckley v. Valeo,1 attempted a grand strategic
compromise. Lacking a coherent intellectual foundation, the compromise
quickly foundered,2 leaving the Court bitterly divided, sometimes leaning
in favor of reform, sometimes against.
In recent years, the Court has tilted decidedly against efforts to control
campaign spending. Its recent decision in Citizens United v. Federal Elec-
tion Commission3 can fairly be described as expressing profound distrust
and suspicion at efforts to control campaign expenditures.4 For many,
“it has practically supplanted Dred Scott as the worst Supreme Court
decision of all time.”5
Although the decision in Citizens United was instantly controversial
and unpopular,6 the majority of the Court plainly believed that it was
reaffirming self-evident and fundamental principles of freedom of speech.
“Under our law and our tradition,” Justice Anthony Kennedy wrote for the
Court, “it seems stranger than fiction for our Government to make . . .
political speech a crime. Yet this is the statute’s purpose and design.”7
Authoring a dissent for four members of the Court, Justice John Paul Ste-
vens avowed with equal conviction that “the Court’s ruling threatens to
undermine the integrity of elected institutions across the Nation.”8
Despite the intensity and eloquence, there was precious little common
ground between the majority and the dissent. It is as if the two sides inhab-
ited entirely different constitutional universes.9 There are many reasons
for this horrifying disjunction, but in this lecture I shall concentrate on
two.10 First, the Court has never been able to offer a disciplined and coher-
ent explanation of its own First Amendment jurisprudence, which means
[199]
200 The Tanner Lectures on Human Values
that its opinions about freedom of speech tend to lean heavily on abstract
doctrinal tests and overreaching rhetoric. The Court is ill equipped to
think carefully about how campaign finance reform can be reconciled with
fundamental First Amendment principles.
Second, proponents of campaign finance reform have not tended to
articulate justifications for regulation that are capable of inosculating with
basic First Amendment principles.11 Justifications have instead tended to
turn on concepts such as “distortion”12 or “equality,”13 ideas that are in ten-
sion with essential premises of First Amendment doctrine. It is surprisingly
difficult to articulate the fundamental republican value of “the integrity
of elected institutions” in a manner that can be reconciled with received
First Amendment principles.
My hope, and it is a modest hope, is to use these Tanner Lectures to
propose a solution to these two difficulties. By constructing a careful, dis-
ciplined account of the structure of our First Amendment jurisprudence,
I hope to illuminate how state interests in campaign finance reform may
be reconciled with traditional constitutional commitments. I shall argue,
in brief, that the purpose of First Amendment rights is to make possible the
value of self-government, and that this purpose requires public trust that
elections select officials who are responsive to public opinion. Government
regulations that maintain this trust advance the constitutional purpose of
the First Amendment.
I shall not in these lectures propose a particular agenda of practical
reform. I shall leave that project to those better versed than I in the actual
dynamics of American politics.14 Nor shall I address how change can be
mobilized and realized. I shall leave that to those more capable in these mat-
ters.15 Instead, I shall seek to elaborate a constitutional framework of analysis
in which First Amendment doctrine and campaign finance reform can be
connected to each other in a coherent and theoretically satisfactory manner.
My hope is that in the future this framework may serve as a basis for an actual
dialogue between the parties to this vital but acrimonious controversy.
I
From its inception, the government of the United States has been built on
the premise of self-government. We were founded upon a belief in the value
of self-determination. But in our history this value has taken two distinct
forms: republican representation and democratic deliberation. In repub-
lican representation, the value of self-determination is realized when the
people elect representatives who govern. In democratic deliberation, the
[Post] A History of Representation and Discursive Democracy 201
value of self-determination is realized when the people actively participate

in the formation of public opinion.
Although a republic and a democracy each seek to embody the value
of self-government, they do so in different ways. Republican principles can
sometimes reinforce democratic principles, and they can sometimes contra-
dict democratic principles. The Court in Citizens United builds on demo-
cratic principles, which in contemporary constitutional law are embedded in
First Amendment doctrine. The Court explains that “speech is an essential
mechanism of democracy, for it is the means to hold officials accountable
to the people. . . . The right of citizens to inquire, to hear, to speak, and to
use information to reach consensus is a precondition to enlightened self-
government and a necessary means to protect it.”16 The Court infers from
these principles that “laws that burden political speech are ‘subject to strict
scrutiny,’ which requires the Government to prove that the restriction ‘fur-
thers a compelling interest and is narrowly tailored to achieve that interest.’ ”17
The dissent in Citizens United also rests its analysis on the principle
of self-government. But whereas the Court imagines self-government as a
process of citizens communicating among themselves, the dissent instead
envisions self-government as a process of representation. It imagines that
self-government happens when people select representatives who will engage
in the actual practice of lawmaking. It is of crucial importance for the dis-
sent, therefore, “to assure that elections are indeed free and representative,”18
“because in a functioning democracy the public must have faith that its rep-
resentatives owe their positions to the people, not to the corporations with
the deepest pockets.”19 The dissent associates this faith with “compelling
governmental interests in ‘preserving the integrity of the electoral process.’ ”20
The crux of the constitutional issue for the dissent is the relationship
between the people and their representatives, a relationship that is medi-
ated by the institution of elections. The crux of the constitutional issue
for the Court is the capacity of the people freely to participate in public
discussion, a capacity that is not mediated by elections. The Court and
the dissent agree that constitutional analysis must turn on the value of
self-government, but they differ about how this value should receive con-
stitutional support.
I have been teaching First Amendment doctrine for almost thirty years.
I have in the past done my best to avoid addressing the Court’s campaign
finance decisions, because I have never achieved clarity about how these
decisions should be understood. The need for freedom of political speech
appears self-evident, but so also does the need for electoral integrity.
Each seems indispensable, yet in cases such as Citizens United they seem
incompatible.
Buckley v. Valeo attempted to split the difference between these two
ideals by proposing an arbitrary distinction between the regulation of
campaign contributions and campaign expenditures.21 Regulations of the
former were permitted to protect electoral integrity, but regulations of
the latter were prohibited to safeguard freedom of speech. Although this
compromise has endured for more than a quarter of a century, it is now
fast unraveling. Because the compromise lacks intellectual foundations,
there is little to stop the slide into chaos.
The fundamental question posed by the campaign finance decisions is
how our republican tradition may be reconciled with our commitment to
deliberative democracy. My goal in these Tanner Lectures is to provide a
constitutional account of how these two distinct paths to self-governance
may be integrated, one with the other. To do so, however, will require a
quick and stylized survey of the history of self-government in the United
States. In this first lecture, I shall discuss how our nation’s initial com-
mitment to republican self-government evolved in the opening decades
of the twentieth century into a foundational commitment to “political
deliberation by ordinary citizens.”22 This history suggests why principles
of campaign finance reform may be in tension with received First Amend-
ment jurisprudence, and it also intimates how this tension may be doctrin-
ally resolved. In my second lecture, I shall discuss these implications, with
particular attention to the constitutional reasoning adopted by the Court
in Citizens United. I shall propose how Citizens United might have been
decided in a manner that is truer to our fundamental constitutional com-
mitment to self-governance.
II
The American Revolution was inspired by the ideal of self-government.
The colonies boldly and frankly proclaimed that “governments . . . insti-
tuted among Men” derive “their just powers from the consent of the gov-
erned,”23 that “all lawful government is founded on the consent of those
who are subject to it.”24 They sought to create a government in which
“all authority is derived from the people.”25 “The people were in fact, the
fountain of all power.”26 “It is evident that no other form would be recon-
cilable with the genius of the people of America,” wrote James Madison,
“[than] to rest all our political experiments on the capacity of mankind
for self-government.”27
The framers were aware of ancient democracies, in which people physi-

cally met to deliberate and decide on governmental action. They regarded
such democracies as societies “consisting of a small number of citizens,
who assemble and administer the government in person.”28 But as societies
“increased in population and the territory extended, the simple democrati-
cal form became unwieldy and impracticable.”29 In the vast stretches of the
new continent, the people could never physically assemble to govern them-
selves. They could “never act, consult, or reason together, because they can-
not march five hundred miles, nor spare the time, nor find a space to meet.”30
How might the principle of self-government be maintained under these
new and modern conditions? The answer, “the pivot” on which Americans
sought to build their new republic, was “the principle of representation.”31
“Representation was an expedient by which the meeting of the people
themselves was rendered unnecessary.”32 It was “an expedient by which an
assembly of certain of individuals chosen by the people is substituted in
place of the inconvenient meeting of the people themselves.”33 The framers
sought to create a new form of self-government, in which “all authority
of every kind is derived by representation from the people, and the
democratic principle is carried into every part of the government.”34
It is not obvious how the principle of representation can be recon-
ciled with the principle of self-government. Already by 1762 Rousseau had
published his famous critique of representation. He had argued that “the
sovereign cannot be represented, for the same reason that it cannot be
alienated: its essence is the general will; and that will must speak itself,
or it does not exist. . . . The deputies of the people are of course not their
representatives; they can only be their commissioners, and as such are not
qualified to conclude upon any thing definitively.”35 Rousseau observed
that “the people of England deceive themselves, when they fancy they are
free: they are so, in fact, only during the interval between a dissolution of
one parliament and the election of another; for, as soon as a new one is
elected, they are again in chains, and lose all their virtue as a people.”36
The answer to Rousseau’s challenge was to forge a living connection
between the people and their representatives. Americans believed that
“representation” required a “chain of communication between the people,
and those, to whom they have committed the exercise of the powers of
government. This chain may consist of one or more links; but in all cases
it should be sufficiently strong and discernible.”37 The chain of commu-
nication needed to be “sufficiently strong and discernible” to sustain the
popular conviction that representatives spoke for the people whom they
purported to represent. Only in this way could the value of self-government

be maintained.
The founders had personally experienced the failure of this chain of
communication. In protesting British taxes, they had contended “that par-
liamentary authority is derived solely from representation—those who
are bound by Acts of parliament, are bound for this only reason, because
they are represented in it.”38 They contended that British taxes were unjus-
tified because the colonists were not represented in the British Parliament.
“Those who are taxed without their own consent, expressed by themselves
or their representatives, are slaves. We are taxed without our own consent,
expressed by ourselves or our representatives. We are therefore—slaves.”39
The British were puzzled by this argument. From their perspective, the
colonists were “subjects of Great Britain,” and therefore “the King, Lords,
and Commons are their representatives; for to them it is that they have
delegated their individual rights over their lives, liberties, and property;
and so long as they approve of that form of government, and continue
under it, so long do they consent to whatever is done by those they have
intrusted with their rights.”40
Conceding that the colonists did not actually vote for members of the
British Parliament, British apologists dryly observed that neither did “Nine
Tenths of the People of Britain,” for “the Right of Election is annexed to
certain Species of Property, to peculiar Franchises, and to Inhabitancy in
some particular Places.”41 The colonists were “in exactly the same situation”
as the vast majority of the British population: “None of them chuse their
Representatives; and yet are they not represented in Parliament? Is their
vast Property subject to Taxes without their Consent?”42 The question
answered itself: “All British Subjects are . . . virtually represented in Par-
liament; for every member of Parliament sits in the House, not as Repre-
sentatives of his own Constituents, but as one of that august Assembly by
which all the Commons of Great Britain are represented.”43
The colonists rejected this concept of virtual representation. In their
experience, “the People of these Colonies are not, and from their local
Circumstances cannot be, Represented in the House of Commons in
Great-Britain.”44 In attempting to explain why this was true, the colonists
began to construct a theory of successful representation, representation
that actually embodies the value of self-government. They articulated two
prerequisites for successful representation. The first was consent.45 In the
Stamp Act Congress affirmed “that the only Representatives of the People
of these Colonies, are Persons chosen therein by themselves.”46 “Not one
American ever gave, or can give, his suffrage for the choice of any of these
pretended representatives [in Parliament]. . . . How can a colony, shire,
city or borough be represented, when not one individual inhabitant ever
did the least thing towards procuring such representation? . . . If we are
not their constituents, they are not our representatives.”47
The second was commonality of interests. The colonists claimed that
they were “not represented, and from their local and other circumstances,
cannot properly be represented in the British parliament.”48 “Why was
America so justly apprehensive of Parliamentary injustice?” Madison asked
the members of the Constitutional Convention. “Because G. Britain had
a separate interest real or supposed, & if her authority had been admitted,
could have pursued that interest at our expense.”49 “There is not that inti-
mate and inseparable relation between the Electors of Great-Britain and the
Inhabitants of the Colonies, which must inevitably involve both in the same
Taxation; on the contrary, not a single actual Elector in England, might
be immediately affected by a Taxation in America, imposed by a Statute
which would have a general Operation and Effect, upon the Properties of
the Inhabitants of the Colonies.”50
Constructing a framework of representation that would meet these
conditions was the great challenge of the Constitution. “The great dif-
ficulty lies in the affair of Representation,” Madison told the delegates to
the Constitutional Convention, “and if this could be adjusted, all others
would be surmountable.”51 In thrashing out the structure of the Constitu-
tion, the framers thought long and hard about how to construct a “chain of
communication” between the people and their representatives that would
preserve “the necessary sympathy between [the people] and their rulers
and officers.”52 They fiercely debated whether persons, states, or property
ought to be represented; the size of electoral districts; the periodicity of
elections; the qualifications for suffrage; and so on.53 In the controversy
surrounding the Constitution’s adoption, a major point of contention
would be whether “our representation in the proposed government . . .
would be merely virtual, similar to what we were allowed in England,
whilst under the British government.”54 In the end, the nation came to
accept the Constitution’s complicated and carefully balanced structures
of representation as an authentic expression of self-government.
III
The founding generation believed in “the democratic principle of the
Govt.”55 It was, as James Madison observed, “essential to every plan of
free Government,” which “would be more stable and durable if it should

reset on the solid foundation of the people themselves.”56 Yet the founding
generation also feared “the fury of democracy.”57 They were apprehensive
of “the amazing violence & turbulence of the democratic spirit,” which can
seize “the popular passions” and “spread like wild fire, and become irre-
sistible.”58 The believed that “democratic communities may be unsteady,
and be led to action by the impulse of the moment.”59
They sought, therefore, to form “a republican government” that would
avoid both “despotism” and “the extremes of democracy.”60 The founders
took the difference between a republic and a democracy quite seriously.
In his biography of George Washington, for example, John Marshall praised
Washington for being “a real republican. . . . But, between a balanced repub-
lic and democracy, the difference is like that between order and chaos.”61
The framers conceived a republic to be a form of government that
checked and channeled the unstable force of popular sentiment. Repub-
lics used laws and constitutional structures to protect rights and to divide
power into a multitude of competing centers. They were based upon the
principle of representation, which was itself an antidote to the possibility
of democratic chaos.
In Federalist No. 10, Madison observed that “a pure democracy,”
by which he meant “a society consisting of a small number of citizens,
who assemble and administer the government in person,”
can admit of no cure for the mischiefs of faction. A common passion

or interest will, in almost every case, be felt by a majority of the whole;
a communication and concert result from the form of government
itself; and there is nothing to check the inducements to sacrifice the
weaker party or an obnoxious individual. Hence it is that such democ-
racies have ever been spectacles of turbulence and contention; have
ever been found incompatible with personal security or the rights of
property; and have in general been as short in their lives as they have
been violent in their deaths.
The mischiefs of faction, Madison famously argued, are best addressed

by “a republic, by which I mean a government in which the scheme of
representation takes place.” Representation could tame the turbulence of
democracy in two ways.
First, public officials in republics are elected, which means that repub-
lican government can “refine and enlarge the public views, by passing them
through the medium of a chosen body of citizens, whose wisdom may best
discern the true interest of their country, and whose patriotism and love
of justice will be least likely to sacrifice it to temporary or partial consider-
ations. Under such a regulation, it may well happen that the public voice,
pronounced by the representatives of the people, will be more consonant
to the public good than if pronounced by the people themselves, convened
for the purpose.”62
Second, republics allow for an extended sphere of governance. Repub-
lican officials could thus be elected by a large number of citizens, which
would make it correspondingly “more difficult for unworthy candidates
to practice with success the vicious arts by which elections are too often
carried” and that “suffrages of the people . . . will be more likely to centre
in men who possess the most attractive merit and the most diffusive and
established characters.”63
Implicit in eighteenth-century American republicanism was the
effort to reconcile the principle of self-government with a social system
that reflected “hierarchies . . . as resilient as they were soft.”64 Eighteenth-
century American republicans expected a system of representation to
select for leaders of the better sort, elites with “the most attractive merit
and the most diffusive and established characters.” The larger the electoral
districts established by the Constitution, the more such elites would stand
out, identified and trusted by deeply ingrained habits of social deference.
Elites would temper the vulgarity of democratic sentiment by refining and
enlarging the views of a democratic public.
The framers’ commitment to elite representation was tested almost
immediately after the founding of the nation. In 1789 Thomas Tudor
Tucker of South Carolina moved in the First Congress to amend the pro-
posed text of the First Amendment to provide that “the people should
have a right to instruct their representatives.”65 Several states at the time
provided for a right of instruction in their state constitutions.66 The argu-
ment in favor of a right of instruction was that it “was strictly compatible
with the spirit and the nature of the Government; all power vests in the
people of the United States.”67 “Instruction and representation in a repub-
lic” were for this reason “inseparably connected.”68
Those who opposed the amendment, however, believed that “represen-
tation is the principle of our Government; the people ought to have con-
fidence in the honor and integrity of those they send forward to transact
their business.”69 The instruction of representatives was said to be “a most
dangerous principle, utterly destructive of all ideas of an independent and
deliberative body, which are essential requisites in the Legislatures of free

Government; they prevent men of abilities and experiences from render-
ing those services to the community that are in their power.”70 “When the
people have chosen a representative,” Representative Roger Sherman of
Connecticut argued, “it is his duty to meet with others from the different
parts of the Union and consult and agree with them to such acts as are for
the general benefit of the community. If they were to be guided by instruc-
tions, they would be no use in deliberation; all that a man would have to
do would be to produce his instructions.”71
The First Congress rejected the motion to include a right to instruct
in the First Amendment.72 The right was deemed inconsistent with the
independence required of true representatives. That very independence,
however, was potentially in tension with the “chain of communication”
necessary to connect representatives to their constituents. How could
representatives speak for the people, if the people could not control their
representatives?
In part the answer lay in the First Amendment itself. By protecting
freedom of speech, the First Amendment established a chain of commu-
nication that would connect the people to their representatives.73 As James
Madison pointed out on the floor of the House, the amendment gave
“the people . . . a right to express and communicate their sentiments and
wishes. . . . The right of freedom of speech is secured; the liberty of the
press is expressly declared to be beyond the reach of this Government;
the people may therefore publicly address their representatives, may pri-
vately advise them, or declare their sentiments by petition to the whole
body.”74 With such freedoms, Madison concluded, there was no need for
a distinct right of instruction.
Yet for the framers the communicative freedoms of the First Amend-
ment were by themselves insufficient to sustain “the necessary sympathy
between [the people] and their rulers and officers.”75 The maintenance of
this sympathy depended upon “the right of electing the members of the
government,” which “constitutes more particularly the essence of a free
and responsible government.”76 The founding generation regarded “fre-
quency of elections” as “the great bulwark of our liberty”;77 elections were
“necessary to preserve the good behavior of rulers.”78 Elections empowered
the people to “choose” their representatives and thereby to affirm a com-
monality of interests with those whom they decided to select. The framers
believed that “the elective mode of obtaining rulers is the characteristic
policy of republican government.”79
The Constitution structured the House of Representatives as the

branch of government most dependent upon, and most responsive to, pub-
lic opinion. “It is essential to liberty that the government in general should
have a common interest with the people, so it is particularly essential that
the [House of Representatives] should have an immediate dependence
on, and an intimate sympathy with, the people.”80 “Frequent elections are
unquestionably the only policy by which this dependence and sympathy
can be effectually secured.”81 Elections are necessary to create “a due con-
nection between [the people’s] representatives and themselves.”82 Elections
functioned to create “such a limitation of the term of appointments as will
maintain a proper responsibility to the people.”83 To serve this function,
elections had to occur with an appropriate frequency,84 by the appropriate
electors,85 and within a framework that produced the correct number of
representatives to maintain a suitable relationship between representatives
and their constituents.86
The great debate over the ratification of the Constitution turned in
part on whether the proposed federal government created a structure of
elections adequate to sustain the viability of representative institutions.
The prominent antifederalist Brutus argued that “if the people are to give
their assent to the laws, by persons chosen and appointed by them, the
manner of the choice and the number chosen, must be such, as to possess,
be disposed, and consequently qualified to declare the sentiments of the
people; for if they do not know, or are not disposed to speak the sentiments
of the people, the people do not govern, but the sovereignty is in a few.”87
The Constitution explicitly provided that the first House of Represen-
tatives would contain sixty-five representatives (and that no future House
could contain more representatives than one for every thirty thousand).
Brutus argued that sixty-five was too small a number, because “one man,
or a few men, cannot possibly represent the feelings, opinions, and charac-
ters of a great multitude. . . . Sixty-five men cannot be found in the United
States, who hold the sentiments, possess the feelings, or are acquainted
with the wants and interests of this vast country.”88 The House of Repre-
sentatives therefore could “not possess the confidence of the people. . . .
[R]epresentation in the legislature is not so formed as give reasonable
ground for public trust.”89
In electoral districts so large, moreover, it would be “impossible the
people of the United States should have sufficient knowledge of their rep-
resentatives” to satisfy themselves that their representatives were persons
who could “manage the public concerns with wisdom” and who would
be “men of integrity, who will pursue the good of the community with
fidelity; and will not be turned aside from their duty by private interest,
or corrupted by undue influence.”90 In districts so large, only “the rich and
well-born” could possibly gain election, and they would “not be viewed
by the people as part of themselves, but as a body distinct from them, and
having separate interests to pursue.”91
In Federalist No. 57, Madison defended the Constitution’s electoral
structure. He argued that it would create “such a limitation of the term
of appointments as will maintain a proper responsibility to the people.”92
He stressed that the biennial election cycle of the House would impose
a “restraint of frequent elections” that would create in representatives
“an habitual recollection of their dependence on the people.”93 Members
of the House of Representatives could “make no law which will not have its
full operation on themselves and their friends, as well as on the great mass
of the society,” and this mutuality of position should be “deemed one of
the strongest bonds by which human policy can connect the rulers and the
people together. It creates between them that communion of interests and
sympathy of sentiments . . . without which every government degenerates
into tyranny.”94
The contretemps between Madison and Brutus is worth careful atten-
tion, for it reveals aspects of representation that continue to be relevant to
our own debates, more than two centuries later. Madison and Brutus agree
that a representative government can fulfill the promise of self-government
only if there is trust and confidence between representatives and their con-
stituents. Madison and Brutus were each aware of the failed claims of the
British Parliament to represent the people of America. They each knew
that representative institutions could fulfill the ideal of self-government
only if there were “reasonable ground for public trust” that representatives
spoke for the people who had elected them.
In theorizing how representative institutions could be organized to
create such trust, Madison stressed structural features such as biennial
elections and general legislation. He believed that such features would
create incentives for representatives to connect with their constituents.
“Such will be the relations between the House of Representatives and their
constituents. Duty, gratitude, interest, ambition itself, are the chords by
which they will be bound to fidelity and sympathy with the great mass of
the people.”95 By contrast, Brutus argued that something more was needed,
some personal connection between constituents and their representatives,
or, failing that, some guarantee that the legislative body “should resemble
those who appoint them—a representation of the people of America”

that constitutes “a true likeness of the people.”96 Brutus feared that in the
absence of a true likeness, the claim to representation “will not possess the
confidence of the people.”97
If Madison conceptualized representation from the perspective of
the representative, Brutus did so from the perspective of the constituent.
Brutus asked what would lead constituents to trust and identify with their
representatives. Madison by contrast asked what would lead representa-
tives to establish “that communion of interests and sympathy of senti-
ments . . . without which every government degenerates into tyranny.”
What is important for our purposes is that Madison and Brutus each
agreed that a successful system of representation depends upon a particu-
lar kind of relationship between representatives and constituents. They
each agreed that representative government cannot embody the value of
self-government without trust and confidence between representatives and
constituents, such that the latter believe that they are indeed “represented”
by the former.
I shall call this relationship representative integrity. Madison and Brutus
each agreed that representative integrity is necessary for a republic to exem-
plify the value of self-government. They each agreed that representative
integrity is a contingent empirical question, dependent in part upon the
structure of elections.
IV
In the first third of the nineteenth century, the framework of representative
government in the United States was forced to adjust to the remarkable
and unexpected collapse of the system of deference and hierarchy that
had characterized the founding generation.98 It is hard to overstate “the
miraculous transformation” and the sheer “discontinuity” implied by this
shift.99 The rambunctious, egalitarian, and uncontrollable world so pun-
gently described by Alexis de Tocqueville in Democracy in America could
not remotely have been anticipated in 1789.
Having committed themselves to the principle of self-government, the
framers were prepared to accept the importance of public opinion. In his
famous essay on the subject, James Madison candidly affirmed that “pub-
lic opinion sets bounds to every government, and is the real sovereign in
every free one.”100 But Madison imagined public opinion as a two-way
street. “As there are cases where the public opinion must be obeyed by the
government, so there are cases where, not being fixed, it may be influenced
by the government.”101 Madison believed that influencing public opinion

was the task of “the class of literati,” who “are the cultivators of the human
mind—the manufacturers of useful knowledge—the agents of the com-
merce of ideas—the censors of public manners—the teachers of the arts
of life and the means of happiness.”102
An elite among elites, Madison “looked to the most thoughtful and
virtuous citizens to keep the people informed about political activity
at the seat of government.”103 This aspiration was inseparable from the
republican stress on divided power, which gave time and opportunity for
elites to inform and shape public opinion. As Hamilton put it candidly in
Federalist No. 72:
The republican principle demands that the deliberate sense of the com-
munity should govern the conduct of those to whom they intrust the
management of their affairs; but it does not require an unqualified
complaisance to every sudden breeze of passion, or to every transient
impulse which the people may receive from the arts of men, who flatter
their prejudices to betray their interests. It is a just observation, that the
people commonly intend the public good. This often applies to
their very errors. But their good sense would despise the adulator who
should pretend that they always reason right about the means of
promoting it. They know from experience that they sometimes err;
and the wonder is that they so seldom err as they do, beset, as they
continually are, by the wiles of parasites and sycophants, by the snares
of the ambitious, the avaricious, the desperate, by the artifices of men
who possess their confidence more than they deserve it, and of those
who seek to possess rather than to deserve it. When occasions pres-
ent themselves, in which the interests of the people are at variance
with their inclinations, it is the duty of the persons whom they have
appointed to be the guardians of those interests, to withstand the tem-
porary delusion, in order to give them time and opportunity for more
cool and sedate reflection.
By the time Tocqueville visited America in 1831, this relationship

between representatives and constituents had been fundamentally under-
mined. As democratic publicist William Leggett put it, “For our own part,
we profess ourselves to be democrats in the fullest and largest sense of
the word. . . . We are for a strictly popular Government. We have none of
those fears, which some of our writers, copying the slang of the English
aristocrats, profess to entertain of an ‘unbalanced democracy.’ We believe

[in] when government in this country shall be a true reflection of public
sentiment.”104 “It is really true,” Leggett wrote, “that popular intelligence
and virtue are the true source of all political power and the true basis of
Government.”105
The new faith in public sentiment reflected changes in “the social
condition of the Americans,” which had become “eminently democratic”
and egalitarian.106 During the Jacksonian era, the movement for universal
white male suffrage triumphed.107 Because the “superior classes of society”
were “carefully exclude[d]” by the people “from the exercise of author-
ity,”108 Tocqueville theorized that “the power of the majority in America”
became “not only preponderant, but irresistible.”109
The overpowering tide of equality meant that in Jacksonian America,
“the people is . . . the real directing power; and although the form of gov-
ernment is representative, it is evident that the opinions, the prejudices,
the interest, and even the passions of the community are hindered by
no durable obstacles from exercise a perpetual influence on society.”110
As George Bancroft put it in his famous oration of July 4, 1826: “The popu-
lar voice is all powerful with us; this is our oracle; this, we acknowledge,
is the voice of God.”111
In the framers’ conception of representation, the people were most
definitely not “the voice of God.” The framers assumed that representa-
tives could earn the trust of their constituents because they were persons
of independent means, public merit, and established character, whose
calm reason would tame the impulsive passions of the people by filtering
unsteady popular sentiments. But this framework of representation could
not survive the new egalitarianism of the Jacksonian period, which exhib-
ited a “faith in public opinion” that was downright hostile to the inde-
pendent “intellectual authority” of right reason.112 As the United States
Magazine and Democratic Review proclaimed in its opening manifesto,
“The general diffusion of education; the facility of access to every species of
knowledge important to the great interests of the community; the freedom
of the press, . . . make the pretensions of those self-styled ‘better classes’
to the sole possession of the requisite intelligence for the management of
public affairs, too absurd to be entitled to any other treatment than an
honest, manly contempt.”113
If representatives could no longer depend upon the respect and defer-
ence of social inferiors, how might they maintain the trust and confidence
of their constituents? They could become transparent instruments of the
public will. In the words of Jacksonian congressman Thomas R. Mitchell,

representatives should act “in accordance with the will of the People,
in their representative capacity, and with representative responsibility.”
What is the meaning of the word Representative? Does it not, ex vi

termini, imply a power to create that Representative, and to govern
and direct his action—he having no will but a political will, and that
derived alone from those who invested him with the power of action?
And, in view of our Government, the Representative is presumed, yea,
intended, to do for the People that thing that the People would do were
they personally present. But, if a Representative is to act according to
his own will, in opposition to that of his constituents, whom does he
represent, sir? He can only be the representative of himself. If the latter
is the true meaning of the word Representative, I call upon the fathers
and professors of literature to expunge the term from our vocabulary.114
If representatives should individually become more like delegates,

instructed by their constituents, then government as a whole ought also
to become more responsive to the will of the majority. Yet this imperative
ran headlong into the founders’ careful partition of power into “separate
departments” to prevent the “abuse [of ] what is granted.”115 The founders
had sought to diminish the susceptibility of government to the instabil-
ity of popular opinion, to give time for elite representatives to assess and
improve public sentiment. By the 1830s this calculated scheme of separa-
tion of powers had come to seem more like an unjustified impediment to
the popular will. President Jackson himself proclaimed that “experience
proves that in proportion as agents to execute the will of the people are
multiplied there is danger of their wishes being frustrated. . . . [P]olicy
requires that as few impediments as possible should exist to the free opera-
tion of the public will.”116
The framers’ design for the federal government “was not by intention a
democratic government. In plan and structure it had been meant to check
the sweep and power of popular majorities.”117 By the 1830s the pressing
question was no longer how to check popular majorities, but instead how
to unleash the “popular power,”118 how to make “all . . . dependent with
equal directness and promptness on the influence of public opinion; the
popular will should be equally the animating and moving spirit of them all,
and ought never to find in any of its own creatures a self-imposed power,
capable . . . of resisting itself, and defeating its own determined object.”119
Jacksonian egalitarianism thus posed two deep challenges to the exist-

ing structure of representation. First, how could the people identify repre-
sentatives who deserved their trust and confidence? The social distinctions
assumed by the framers to mark those most worthy of election had been
swept away in the democratic tide of the 1830s.120 All candidates for public
office were now of potentially equal worth. With the growth in national
population, the electorate could not possibly possess firsthand experience
of the individual quality of particular candidates. On what basis, then,
could the electorate select representatives with whom they could sustain
a “due connection”? How could representative integrity be maintained?
Second, how could even the most trustworthy representatives maintain
the confidence of the people, if their ability to effect government action was
constrained by the separation of powers? If representatives needed to make
government responsive to popular opinion in order to maintain a suitable
“communion of interests and sympathy of sentiments” with their constitu-
ents, and if government responsiveness was paralyzed by the mechanical
checks and balances so lovingly fashioned by the framers, how could the
connection between representation and self-government be sustained?
The invention of the second American party system answered both
these challenges. The Jacksonian era witnessed an upwelling of organized
and disciplined political parties, replete with partisan rivalry and “party
warfare.”121 “The Jacksonians . . . created the first mass democratic national
political party in modern history.”122 By the end of Jackson’s second term,
“Whigs and Democrats everywhere were nominated, campaigned, and
were elected to Congress with the position on the [banking] issue known by
everyone and with the expectation that they would later act accordingly.”123
The new political parties functioned to connect voters directly with
their representatives. Voters could choose among representatives based
upon the platforms and principles to which candidates were committed.
Elections would thus turn less on the merit of individual candidates than on
the political principles that candidates were pledged to support. These prin-
ciples increasingly connected voters to representatives.124 “We call upon
every man who professes to be animated with the principles of the democ-
racy, to assist in accomplishing the great work of redeeming this country
from the curse of our bad bank system,” cried Democratic Party publicist
William Leggett.125 Indignant that a party formed to protect “the labour-
ing classes in vindication of their political principles” had been attacked
as a “danger to the rights of person and property,” Leggett asked, “Is not
this a government of the people, founded on the rights of the people, and
instituted for the express object of guarding them against the encroach-
ments and usurpations of power? And if they are not permitted the posses-
sion of common interest; the exercise of a common feeling; if they cannot
combine to resist by constitutional means, these encroachments; to what
purpose were they declared free to exercise the right of suffrage in the
choice of rulers, and the making of laws?”126 Building on theoretical work
by Edmund Burke more than a half century earlier, Leggett defended “the
importance and even dignity of party combination” because it furnished
“the only certain means of carrying political principles into effect. When
men agree in their theory of Government, they must also agree to act in
concert, or no practical advantage can result from their accordance.”127
Parties could also solve the problem of government responsiveness.
Writing at the dawn of the twentieth century, Woodrow Wilson observed
that the framers’ constitutional complicated design of separation of powers
had so successfully prevented “the will of the people as a whole from having
at any moment an unobstructed sweep and ascendency”128 that democratic
aspirations for responsiveness could succeed only through “the closely knit
imperative discipline of party, a body that has no constitutional cleavages
and is free to tie itself into legislative and executive functions alike by its
systematic control of the personnel of all branches of the government.”129
Parties were “absolutely necessary to . . . give some coherence to the action
of political forces,”130 for without parties, “it would hardly have been pos-
sible for the voters of the country to be united in truly national judgments
upon national questions.”131 “It is only by elections, by the filling of offices,
that parties test and maintain their hold upon public opinion.”132
During the Jacksonian era, political parties became the medium
through which “the absolute sovereignty of the majority”133 could exer-
cise its dominion. The implications for institutions of representation were
profound. The invention of party nominating conventions, together with
presidential electors selected by political parties pledged in advance to
vote for party candidates, “wrested control of the presidency away from
Congress by forging an independent, popular electoral base for the Presi-
dent.”134 Party affiliation became inseparable from the “chain of commu-
nication” connecting constituents to representatives. Voters no longer
needed to possess personal knowledge of the character and beliefs of indi-
vidual candidates, as Brutus had imagined. Voters could instead select rep-
resentatives based upon their party principles. The party vouched for the
integrity of its candidates. By voting for a party, the electorate could seek
to make government responsive to the principles espoused by the party.
The voter, Robert La Follette would later say, “gives support to that
party which promises to do the specific things that he regards of the high-
est importance to the state and to the welfare of every citizen. . . . Upon
its promise and his support the party has become the custodian of his
political rights. . . . [T]he party is bound to keep its pledged word. . . . This
measures its value as a power for good in representative government.”135
Upon this mutual understanding, political parties became a solution for
the problem of representative integrity.136 They enabled representatives
and constituents to maintain the “communion of interests and sympathy
of sentiments” necessary for representative government to fulfill the ideal
of self-government.137
V
No doubt there are multiple structures of identification that can enable
parties to facilitate the identification of constituents with their representa-
tives. A movement party, capable of mobilizing mass appeal through its
distinctive platform and principles, might be one such structure. Examples
would include the Democratic Party of Andrew Jackson and Franklin
Roosevelt or the Republican Party of Abraham Lincoln or Ronald Reagan.
In the decades after the Civil War, American political parties began
to lose their character as ideological movements. It remained clear that
political parties were necessary to connect elected officials to their con-
stituents,138 yet parties came increasingly to seem organizations devoted
entirely to maintaining their own hold on power. As organizations, national
parties deployed ever more effective networks of local political operatives
to oversee polling places, compose and print party tickets, turn out voters,
and ensure that voters elected the right candidates.139 Maintaining the sup-
port of these party functionaries necessitated the distribution of patron-
age jobs and other constituent services.140 Reconstruction-era reformers
bemoaned the grip of patronage-driven party organizations.141 Stripped
of the raiment of ideological mobilization, parties could easily come to
seem merely organizations devoted to “the interests of getting or keeping
the patronage of the government.”
The great parties are the Republicans and the Democrats. What are
their principles, their distinctive tenets, their tendencies? Which
of them is for tariff reform, for the further extension of civil service
reform, for a spirited foreign policy, for the regulation of railroads and
telegraphs by legislation, for changes in the currency, for any other of
the twenty issues which one hears discussed in the country as seriously
involving its welfare?
This is what a European is always asking of intelligent Republi-
cans and intelligent Democrats. He is always asking because he never
gets an answer. The replies leave him in deeper perplexity. After some
months the truth begins to dawn upon him. Neither party has, as a
party, anything definite to say on these issues; neither party has any
clean-cut principles, any distinctive tenets. Both have traditions. Both
claim to have tendencies. Both have certainly war cries, organizations,
interests, enlisted in their support. But those interests are in the main
the interests of getting or keeping the patronage of the government.
Distinctive tenets and policies, points of political doctrine and points
of political practice, have all but vanished. They have not been thrown
away, but have been stripped away by Time and the progress of events,
fulfilling some policies, blotting out others. All has been lost, except
office or the hope of it.142
The Gilded Age was nevertheless a period of “strong partisan loyalties

and massive voter turnout.”143 It “was distinguished by the dominance of
political parties.”144 “Parties shaped campaigns and elections into popu-
lar spectacles featuring widespread participation and celebration. Three-
quarters of the nation’s adult male citizens voted in presidential elections
and nearly two-thirds also participated in off-year contests. Most of them
cast straight tickets conveniently supplied by the party organizations . . .
[I]t is probable that the great majority of adult males voted honestly,
enthusiastically, and partisanly.”145
Party loyalty was compounded of many factors, including “ethnoreli-
gious” identification and the distribution of “resources and privileges to
individuals and groups.”146 Journalist William L. Riordan records of Tam-
many district leader George Plunkitt that it was “his belief that argument
and campaign literature have never gained votes.”147 Tammany maintained
partisan fidelity by offering a steady stream of constituent services.148
We shall probably never settle on an explanation for exactly how party
identification was sustained during the Gilded Age. The point I wish to
stress, however, is that parties of the time could not have solved the problem
of representative integrity unless they in fact maintained this identification.
Without party identification, political parties cannot ensure the “necessary
sympathy between [the people] and their rulers and officers” that alone
transforms representation into an effective instrument of self-governance.
The point is illustrated by the periodic eruptions of third-party mobili-

zation that broke out during the Gilded Age. A “common element” of such
movements was “a preponderance of anti-party thought and culture.”149
Third parties characteristically denounced “the political machinery of the
dominant party used to defeat the will of the people.”150 In 1886 Henry
George’s insurgent platform announced that “independent political action
affords the only hope of exposing and breaking the extortion and specu-
lation by which a standing army of professional politicians corrupt the
public whom they plunder.”151
Even when third parties managed to elect members of Congress, they
discovered that institutional rules, created by the two dominant parties,
effectively rendered them “unable to speak on the floor, to gain assignments
to important or relevant committees, to introduce measure, have them
reported, or bring them to a vote.”152 One Iowa Populist newspaper won-
dered “whether it will ever again be possible for the people to govern them-
selves through representatives,”153 concluding bitterly in another article
that “representative government is a failure.”154 The very “intense partisan-
ship, party patronage, and distributive policy making” that made possible
“the regime of party government” during the Gilded Age functioned to
deny self-government to those who felt excluded from its ambit.155
It is commonly accepted that the regime of party government that char-
acterized the Gilded Age collapsed sometime around the closing years of the
nineteenth century. “Between the 1890s and the 1920s, the lights dimmed
in the great showcase of 19th century democracy: the extraordinary pub-
lic outpourings to electioneer and to elect. In national contests, turnouts
declined from around 80 percent of the eligible voters in 1896 to under
50 per cent in 1924.”156 “As turnout declined, a larger and larger component
of the still-active electorate moved from a core to a peripheral position,
and the hold of the parties over their mass base appreciably deteriorated,”
causing a “revolutionary contraction in the size and diffusion in the shape
of the voting universe,” affecting “both the national and state levels.”157
In part the loss of voters was the result of deliberate “efforts to disfran-
chise alleged discordant social elements” by enacting reform “measures
to restrict suffrage.”158 Southern exclusion of black voters is exemplary,
but states everywhere sought to curtail voting through strict registration
requirements, poll taxes, and the like.159 For our purposes, however, the
most important dimension of the altered political universe of the twenti-
eth century was its deep disillusion with political parties as a medium of
self-governance. Like the many third parties of the Gilded Age, and like the
mugwumps who were their direct intellectual and social predecessors,160

Progressives came to see parties as an obstruction to self-government.
Political parties had saved representative institutions in the United
States in the 1830s. When political parties lost the confidence of the elector-
ate at the turn of the century, representative institutions were profoundly
threatened. The Progressive Era was marked by a “growing popular distrust
of the representative system whereon both federal and State governments
are based.”161 “The American people are drifting towards a general loss of
faith in representative government. . . . One of the most universal causes of
complaint is the tendency [of legislative assemblies] to play party politics
instead of regarding purely the welfare of the whole community.”162
Whereas in an earlier political universe the political party had con-
nected voters to government, in the Progressive Era the party came to be
viewed as a mere “political machine”: “It rules caucuses, names delegates,
appoints committees, . . . dictates nomination makes platforms, dispenses
patronage, directs state administrations, controls legislatures, stifles opposi-
tion, punishes independence and elects United States Senators. . . . Having
no constituency to serve, it serves itself.”163 And, most troubling to Progres-
sives, “the corporation now makes terms direct with the machine.”164
The analysis of J. Allen Smith is exemplary. He wrote that the political party
“professes of course, to stand for the principle of majority rule, but in practice
it has become . . . one of the most potent checks on the majority.”165 Smith
observed that the American system of separation of powers, in contrast to
European parliamentary systems, meant that a political party can “not be
held accountable for failure to carry out its ante-election pledges”166 because
it can only rarely achieve “control of the government.”167 As a consequence,
the party platform “ceases to be a serious declaration of political principles.
It comes to be regarded as a means of winning elections rather than a state-
ment of what the party is obligated to accomplish.”168 Parties are thus essen-
tially “misrepresentative.”169 Lacking popular discipline, they fall under the
sway “of the professional politician who, claiming to represent the masses,
really owes his preferment to those who subsidize the party machine.”170
Smith spoke for his age when he characterized the political party as a
machine for cynically attracting the votes necessary to justify its own con-
tinued subsidy and support.171 By controlling nominations to public office,
by controlling the actions of public officials, the party came to be regarded
as a vehicle for “unscrupulous politicians” to sell protection to “corporate
wealth.”172 “The party, though claiming to represent the people, is not in
reality a popular organ. Its chief object has come to be the perpetuation
of minority control, which makes possible protection and advancement

of those powerful private interests to whose co-operation and support the
party boss is indebted for his continuance in power.”173 Hence “the growth
of that distinctively American product, the party machine, with its politi-
cal bosses, its army of paid workers and its funds for promoting or oppos-
ing legislation, supplied by various special interests which expect to profit
thereby. . . . We encounter its malign influence every time an effort is made
to secure any adequate regulation of railways, to protect the people against
the extortion of the trusts, or to make the great privileged industries of the
country bear their just share of taxation.”174
Smith’s analysis exemplified the “political transformation” of progres-
sivism, which highlighted the insight that “businessmen systematically
corrupted politics.”175 The problem was not merely “the product of mis-
behavior by ‘bad’ men,” but the predictable “outcome of identifiable eco-
nomic and political forces.”176 “There is not one of our states which has
not, to a very considerable extent, come under the baneful influence of this
system, by means of which the political life of the people is dominated and
exploited for private ends by rich working corporations in alliance with
professional party politicians.”177
The sociologist Edward A. Ross lay down the basic principle: “The
force devoted to wresting government from the people will correspond to the
magnitude of the pecuniary interest at stake.”178 The incentives to undermine
popular sovereignty grew precisely as did the “magnitude of the interest
affected by the action of government.”179 “The railroads want to avert rate
regulation and to own the State board of equalization. The gas and street
railway companies want . . . the authorization of fifty-year franchises and
immunity from taxation of franchises. . . . Manufacturers want the unre-
stricted use of child labor. Mining companies dread short-hour legisla-
tion. . . . The baking-powder trust wants rival powders outlawed. . . . The
shipping interests are after subsidies.”180 The list was endless. Corporations
could achieve their economic goals only by using political parties to pro-
duce laws that would give them an economic edge.181
Progressives offered a two-pronged approach to correct the economic
capture of representative government. They sought to regulate business,
and they sought to restructure politics.182 Jacksonians concerned about the
possible corruption of politics by business corporations had responded by
insisting that government withdraw completely from entanglements with
business. Progressives did not have this option, because they could not
ignore the massive and pervasive consequences of industrialization.
With regard to business, therefore, Progressives pushed for a “regu-

latory revolution” in order to establish “effective regulatory boards—
progressivism’s most distinctive governmental achievement.”183 As a means
of insulating regulation from the control of the party machine, they sought
to distinguish administration from a politics, a strategy that Woodrow
Wilson had advocated as early as 1887.184 Progressives conceived regula-
tion as a form of administration answerable to expertise rather than to
public opinion. “Administration lies outside the proper sphere of politics.
Administrative questions are not political questions. Although politics sets
the tasks for administration, it should not be suffered to manipulate its
offices.”185 In contrast to the Jacksonians, and analogously to the founding
generation, Progressives placed their faith in the intelligence and compe-
tence of an educated minority.
With regard to politics, Progressives pursued multiple strategies for
preserving representative integrity. On the most basic level, they sought
to sever ties between corporations and politics, enacting statutes that were
the direct ancestors of the legislation found unconstitutional a century
later in Citizens United.186 As early as 1894, the irreproachably conservative
Elihu Root had proposed amending the New York State Constitution to
prohibit corporate campaign contributions and expenditures. “The idea,”
Root said,
is to prevent the great moneyed corporations from furnishing the

money with which to elect members of the legislature of this state,
in order that those members of the legislature may vote to protect the
corporations. It is to prevent the great railroad companies, the great
insurance companies, the great telephone companies, the great aggre-
gations of wealth, from using their corporate funds, directly or indi-
rectly to send members of the legislature to these halls, in order to vote
for their protection and the advancement of their interests as against
those of the public.
It strikes . . . at the constantly growing evil in our political affairs,
which has, in my judgment, done more to shake the confidence of
the plain people of small means in our political institutions, than any
other practice which has ever obtained since the foundation of our
government. . . .
It is precisely because laws aimed directly at the crime of bribery so
far have been ineffective, that we deem it advisable to provide limita-
tions short of the actual commission of the crime. . . . I think it will be
a protection to corporations and to candidates against demands made

upon them.187
Root’s motion failed, but in 1909 New York enacted a statute “substantially

in the words” of Root’s original proposed amendment.188 In 1910 in his
famous address “The New Nationalism” in Osawatomie, Kansas, Theodore
Roosevelt was equally explicit:
The Constitution guarantees protection to property, and we must

make that promise good. But it does not give the right of suffrage to
any corporation. . . .
The citizens of the United States must effectively control the mighty
commercial forces which they have themselves called into being.
There can be no effective control of corporations while their politi-
cal activity remains. . . . It is necessary that laws should be passed to
prohibit the use of corporate funds directly or indirectly for political
purposes; it is still more necessary that such laws should be thoroughly
enforced. Corporate expenditures for political purposes, and especially
such expenditures by public service corporations, have supplied one of
the principal sources of corruption in our political affairs. . . .
If our political institutions were perfect, they would absolutely
prevent the political domination of money in any part of our affairs.
We need to make our political representatives more quickly and sensi-
tively responsive to the people whose servants they are. . . .
One of the fundamental necessities in a representative government
such as ours is to make certain that the men to whom the people del-
egate their power shall serve the people by whom they are elected, and
not the special interests. I believe that every national officer, elected or
appointed, should be forbidden to perform any service or receive any
compensation, directly or indirectly, from interstate corporations; and
a similar provision could not fail to be useful within the states.189
Progressives sought not merely to stanch the flow of money from busi-
ness into politics, but also to diminish the role of political parties in politi-
cal governance.190 The movement for the direct election of senators should
be regarded in this light.191 So should the movement for direct primaries,192
which empowered voters “to select directly candidates without interven-
tion of caucus or convention or domination of machines.”193 The effort
was to bring candidates “face to face” with the voter, so that politicians
would be “directly accountable to the citizen” and not to “the political

machine of his party.”194 “The chief object of direct primaries and of other
proposals for the democratization of the party is to break up the alliance
between corrupt business and corrupt politics.”195 Signature innovations
of the Progressive Era such as the referendum, the initiative, and the recall
also sought to liberate politics from the control of political parties.196
In all these reforms, Progressives expressed their “distrust in represen-
tative government.”197 They were “part of the great movement which has
been going on now in these recent years throughout the country, and in
which our people have been drifting away from their trust in representa-
tive government.”198 Underlying this distrust was the loss of faith in parties
as faithful vehicles of popular will.199 The hope was to “abate the rigor of
our party system, break the crushing and stifling power of our great party
machines, and give freer play to the political ideas, aspirations, opinions
and feelings of the people.”200 Progressives sought to create institutional
forms in which public opinion could directly express itself, without the
need of intermediation. They hoped to fashion a government efficiently
and transparently responsive to majority will.201 In Richard Hofstadter’s
formulation, Progressives “wanted to bring about direct popular rule, break
up the political machines, and circumvent representative government.”202
The pathos of Progressive reforms, however, is that they were in fact
framed within the inevitable structure of representative government. Every
official nominated directly by the people in a primary would remain, after
election, a representative. Every senator directly elected by the people
would also function as a representative. And, as all recognized, initiatives
and referenda could not substitute for the routine and ordinary legislation
that would continue to be produced by elected representatives.203
Although they sought to connect government more directly with the
people, Progressives could not escape the challenge of representation.
They could not avoid the problem of how representatives might maintain
the trust and confidence of their constituents. The question that loomed
large at the outset of the twentieth century was how the “chain of com-
munication” between representatives and the people necessary for self-
government could be sustained in the absence of political parties. How
could representative integrity be maintained?
VI
The answer to this question emerged from the Progressive Era in a man-
ner that was neither anticipated nor designed. It took the form of a
fundamental constitutional transformation that has proved so pervasive,

so quiet, so unassuming, that it has scarcely been noticed. The transforma-
tion underlies a contemporary decision such as Citizens United, although
in that decision, as in most modern constitutional law, the transformation
is inhabited as if it had no history, no context, no motivation.
De Tocqueville knew that in a democratic society, public opinion must
rule. He conceived public opinion as pressing “with enormous weight
upon the mind of each individual; it surrounds, directs, and oppresses him;
and this arises from the very constitution of society, much more than from
its political laws.”204 A half century later James Bryce also realized that
“in no country is public opinion so powerful as in the United States,”205
so much so that America could aptly be termed a “government by public
opinion,” in which “the will of the people acts directly and constantly upon
its executive and legislative agents.”206
Bryce observed that “government by popular opinion exists where the
wishes and views of the people prevail, even before they have been con-
veyed through the regular law-appointed organs, and without the need of
their being so conveyed.”207 He conceded that public opinion might be dif-
ficult to ascertain,208 but he nevertheless insisted that “public opinion can
with truth be said not only to reign but to govern. . . . The . . . sovereign is
not the less a sovereign because his commands are sometimes misheard or
misreported. In America every one listens for them. Those who manage
the affairs the country obey to the best of their hearing.”209 He noticed that
although “opinion declares itself legally through elections,” it “is at work at
other times also, and has other methods of declaring itself.”210 Elections are
only an “intermittent mechanism,” whereas public opinion is “constantly
active” and “in the long run” can exercise “a great and growing influence.”211
Most important, government by public opinion altered the attitude
of the American public. Their “habit of breathing as well as helping to
form public opinion . . . cultivates, develops, trains the average Ameri-
can. It gives him a sense of personal responsibility stronger, because more
constant, than exists in those free countries of Europe where he commits
his power to a legislature.”212 In contrast to de Tocqueville, Bryce con-
ceived public opinion as liberating, rather than as oppressive. The average
American “has a sense of ownership in the government, and therewith a
kind of independence of manner as well as of mind very different from the
demissness of the humbler classes of the Old World.”213
The “sense of ownership” observed by Bryce can be said to underwrite
“that communion of interests and sympathy of sentiments . . . without
which every government degenerates into tyranny,” which Madison long

ago knew to be essential for representative government. The “sense of own-
ership” connected Americans to their government, in much the same way
that political parties aimed to do. And it did so through a medium that
was independent of the institutional organization of elections.
So long as public officials were continuously attuned to the content
of public opinion, and so long as Americans actively participated in the
formation of public opinion, Americans could imagine their government,
and its elected officials, as responsive to them. Bryce did not suggest that
public opinion formation could displace the accountability created by a
regular election process, but he did emphasize that it was an independent
avenue for forging a direct relationship of ownership with the state.
Progressives such as John Dewey214 and M. P. Follett215 would even-
tually develop and theorize this insight. But it was Herbert Croly who
most explicitly pondered its implications for representative government.216
Croly stressed the distinction “between the ‘electorate’ and the ‘people.’ ”217
The electorate is necessary because “in a democracy organized for action
some agency must be provided to decide what immediate action is to be
taken.”218 But elections are neither the beginning nor the end of democ-
racy. “The finality of any particular decision must not be taken too seri-
ously. The decisions of an electorate are frankly tentative and revocable. . . .
The really effective sovereign power is to be found in public opinion, and
public opinion is always in the making. It is always, that is, essentially
active. Its sovereignty is wholesome in so far as its activity is determined
by a sufficiency of information, the ability to understand and face the really
pertinent facts, and real integrity of purpose.”219
In the eighteenth century, when people had to physically assemble in
order to create an informed public opinion, direct democracy may not
have been possible. But now advances in communication have enabled
people to keep
in constant touch with one another by means of the complicated agen-

cies of publicity and intercourse which are afforded by the magazines,
the press and the like. The active citizenship of the country meets every
morning and evening and discusses the affairs of the nation with the
newspaper as an impersonal interlocutor. Public opinion has a thou-
sand methods of seeking information and obtaining definite and effec-
tive expression which it did not have four generations ago. . . . Under
such conditions the discussions which take place in a Congress or a
Parliament no longer possess their former function. They no longer

create and guide what public opinion there is. Their purpose rather
is to provide a mirror for public opinion, to advertise and illuminate
its constituent ideas and purposes, and to confront the advocates of
those ideas with the discipline of effective resistance and, perhaps, with
the responsibilities of power. Phases of public opinion form, develop,
gather to a head, assert their power and find their place chiefly by the
activity of other more popular unofficial agencies.220
Elihu Root, who believed profoundly in the virtues of representa-

tive government, had advised citizens that their “first and chief duty” is
“to serve in the ranks” of political parties, so that they can make “the dif-
ference between popular self-government and popular submission to an
absolute monarch.”221 For Croly, by contrast, active citizenship involved
effective participation in the formation of public opinion,222 which can
create an immediate form of self-governance that “is, or may become, supe-
rior to that which . . . formerly obtained by virtue of occasional popular
assemblages.”223 Government by public opinion does not require parties,
because it creates an independent mechanism by which the public can
instruct their government and hold it accountable.
Croly perceived that participating in the formation of public opinion
can create a kind of self-government that does not depend on the appa-
ratus of representation. Croly characterized this form of self-government
as direct democracy,224 because it involved a direct relationship between
each citizen and the state, a relationship unmediated by elected officials.
Croly realized that if direct democracy depends upon continuous
and ongoing participation in the formation of public opinion, direct
democracy is itself incapable of any sustained action other than “being
educational,”225 of maintaining its own “ultimate social cohesion” through
“popular intelligence, sympathy and faith.”226 He therefore concluded that
direct democracy could not displace representative institutions and that
there was a need for “some method of representation which will be efficient
and responsible enough to carry out a social policy.”227 Yet he also believed
that public opinion could never delegate its “own ultimate discretionary
power to any body of men or body of law.”228
Croly ultimately determined that America needed “both an efficient
system of representation and an efficient method of direct popular supervi-
sion.”229 “The two different methods of government [are] supplementary
and mutually interdependent. . . . Direct government has come to stay
and is entitled to stay, but it cannot dispense with the use of representative
agencies.”230 The challenge the nation faced was to structure the “phases of
the relationship which ought to obtain between direct and representative
government.”231
Lodging self-governance in public opinion formation solved two great
theoretical difficulties of representative government. First, it explained
how the people could come to identify with specific candidates for office.
Public opinion established a “chain of communication” through which
the public could hold candidates accountable. Elected officials could be
expected, in Bryce’s words, to obey public opinion “to the best of their
hearing.” The task was to fashion institutions that would encourage such
attentiveness. Among these institutions were elections, which would
reward representatives who were responsive to public opinion and pun-
ish those who were not.
Second, identifying self-government with public opinion could solve
the problem of separation of powers. Like political parties, public opinion
addressed the entire government. It simultaneously affected all public offi-
cials, and so could create its own form of immanent coordination across
the divided branches of government. Croly himself believed that a strong
executive was institutionally best suited to serve the “proper and natural
function of giving effective expression to the will of the temporarily pre-
ponderant weight of public opinion,”232 and that it was therefore necessary
to “increase . . . executive authority and responsibility.”233 His thinking in
this regard, as in many others, was deeply prescient of political develop-
ments in the past century.
Croly’s focus on public opinion should be disaggregated into distinct
logical strands. On one level, Croly believed that public opinion offered
a solution to the problem of representative integrity, because public opin-
ion could establish connect representatives to their constituency, even in
the absence of party identification.234 Defining representative integrity
in terms of responsiveness to public opinion is particularly attractive in
times when the partisan identities promoted by political parties are weak
and insubstantial.235 But in Croly’s thought, as in Bryce’s, public opinion
ultimately illuminates forms of self-governance that bypass representative
institutions. Croly began to imagine democratic, rather than republican,
versions of self-g overnment. Croly and similarly minded Progressives
were drawn to the possibility that the people could speak directly in their
own voice.
Croly described two distinct (and incompatible) versions of demo-

cratic self-government. Sometimes Croly meant by direct democracy the
capacity of the people to act in an unmediated fashion, as when public
opinion is enacted directly into law through the institution of the ini-
tiative. At other times Croly meant by direct democracy the capacity of
the people to participate in an “essentially active” public opinion that is
“always in the making.” Used in this latter sense, direct democracy does
not refer to government action, but refers to communicative processes
in which an ever-changing population continuously articulates its ever-
evolving experience. I shall henceforth reserve the term direct democracy
for the first meaning, which denotes government institutions capable of
transparently enacting public will. I shall use the term discursive democracy
to refer to the second meaning, which conceives public opinion as “always
in the making” rather than as decisive.
Direct democracy is familiar to students of progressivism. It is exempli-
fied by institutions such as initiatives, referenda, and recalls. The ambition
of direct democracy is to unleash the unmediated authority of popular
judgment. Direct democracy embodies self-governance because citizens
participate in elections that determine government action. But because
direct democracy cannot displace ordinary mechanisms of electoral rep-
resentation, because “great communities cannot be governed by perma-
nent town meetings,”236 direct democracy can exercise the authority of
self-government only episodically and intermittently. Popular initiatives or
referenda may occasionally enact laws, but the vast bulk of the day-to-day
business of governing must necessarily be carried on by the institutions of
ordinary representative government.
Discursive democracy, by contrast, refers to public opinion as a process
that is constantly in flux. Like Heraclitus’s river, it is a stream that is always
moving and never twice repeated. Conceived in this way, public opinion
is imagined as surrounding government, as encompassing it and holding it
constantly but indirectly accountable. Public opinion is the muffled voice
that on Bryce’s account elected officials were always straining to hear and
interpret.237 Discursive democracy postulates that by participating in the
ongoing and never-ending formation of public opinion, and by establish-
ing institutions designed to make government continuously responsive to
public opinion, the people might come to develop a “sense of ownership”
of “their” government and so enjoy the benefit of self-government. I shall
henceforth call this process of ownership democratic legitimation.238
Herbert Croly, like most Progressives, was quite comfortable with the
idea of direct democracy.239 He could easily imagine institutions capable of
yielding pure and unmediated representations of popular will. Progressives
supported “direct nominations, the recall, the initiative, the referendum,”
because of “the directness of their appeal to the rule of the majority.”240
But Progressives of Croly’s generation could only glimpse the implications
and consequences of discursive democracy.241
At root this is because prewar Progressives were interested primarily
in “a democracy organized for action.”242 Public opinion can control state
action only if it is represented. Initiatives are structured to represent and
make known the contents of public opinion. Neither Croly nor any other
prewar Progressive of whom I am aware theorized discursive democracy,243
in part because they could not quite conceive what it would mean for
public opinion to remain so continuously in process as to be incapable of
the representation necessary for decision making.
Although they were aware that public opinion was constituted by
ongoing communicative processes, although they were aware that these
processes are shaped by multiple factors, including the technology of
media, the distribution of resources, the actions of the state, and so on,
they were not inclined to inquire into the preconditions that rendered the
public opinion produced by these processes legitimate.244 There are many
methods to shape these processes. Some involve structural innovations,
such as the creation of public sources of information and broadcasting;
some involve redistribution and entail compelled access to media of com-
munication. But the simplest and most compatible method of underwrit-
ing the process of public opinion formation involves the establishment of
communicative rights that would guarantee to all the right to participate
in the development of public opinion. It is striking that in the years before
World War I, neither Croly nor any other prominent Progressive advo-
cated for such rights.
In our own time, of course, we conceive such rights as essential to dis-
cursive democracy. Jürgen Habermas, for example, writes that in a democ-
racy, “sovereignty is found” in “subjectless forms of communication that
regulate the flow of discursive opinion- and will-formation.”245 “Popular
sovereignty withdraws into democratic procedures and the demanding
communicative presuppositions of their implementation.”246 A decision
such as Citizens United makes clear that such procedures and procedures
are defined and enforced by communicative rights, which construct pub-
lic opinion as such. Communicative rights are for this reason conceived
to be more fundamental than any particular or momentary representa-

tion of public opinion. Communicative rights guarantee that “delibera-
tion itself ”247 proceeds in an open and legitimizing manner; all must be
permitted to participate “in deliberation,” because “political decisions are
characteristically imposed on all.”248
Like most of his Progressive peers, Croly was quite hostile to the
very notion of entrenched constitutional rights.249 He remained instead
entranced by the ideal of direct democracy, with its vision of an unobstructed
and undistorted representation of majority will. As the twentieth century
matured, and as fascist and totalitarian regimes began to make the triumph
of popular will seem intimidating and potentially terrifying, the necessity of
fundamental communicative rights became increasingly apparent to those
who cared about public opinion as a foundation for self-government.
In the United States this process of disenchantment began in the years
after World War I, when massive government censorship250 and propa-
ganda251 suddenly revealed the vulnerability of public opinion to official
manipulation. The startling vulnerability made salient and convincing the
need to reestablish “freedom of discussion, for without freedom of discus-
sion there is no public opinion that deserves the name.”252 In the decades
after World War I, a consensus began to form around the proposition that
freedom of discussion, which is the essence of self-government, could be
guaranteed only through constitutional rights.253 Progressives began to
recognize, as John Dewey and James Tufts wrote in the second (but not
the first 1908) edition of their volume Ethics, “Liberty to think, inquire,
discuss, is central in the whole group of rights which are secured in theory
to individuals in a democratic organization.”254
It is at this time that justices of the Supreme Court first recognized
judicially enforceable First Amendment rights.255 Although the United
States had always enjoyed a robust civic culture celebrating freedom of
speech,256 judicial protection for First Amendment rights did not begin
to emerge until the decades after World War I. Before that time “the over-
whelming majority of . . . decisions in all jurisdictions rejected free speech
claims, often by ignoring their existence. No court was more unsympa-
thetic to freedom of expression than the Supreme Court, which rarely
produced even a dissenting opinion in a First Amendment case.”257
The dominant nineteenth-century interpretation of the First Amend-
ment, summarized in 1907 by Justice Oliver Wendell Holmes, was that its
“main purpose . . . is ‘to prevent all such previous restraints upon publica-
tions as had been practised by other governments,’ ” and that it did “not
prevent the subsequent punishment of such as may be deemed contrary

to the public welfare.”258 In his 1893 book Lectures on the Constitution of
the United States, Justice Samuel Miller did not even bother to comment
on the freedom of speech provisions of the First Amendment, preferring
instead to offer a few sentences on freedom of religion.259 It was not until
the pathbreaking dissent of Justice Holmes in November 1919 in Abrams
v. United States that a coherent and sustained judicial theory of the First
Amendment began to develop.260
In explaining the basis for First Amendment rights, Holmes used
rhetoric that emphasized the necessity of a “free trade in ideas,” because
“the best test of truth is the power of the thought to get itself accepted
in the competition of the market.”261 Holmes always wrote in the context
of the suppression of political opinion, so his theorization of First Amend-
ment rights should be understood as bounded by the circumstances of
political deliberation. The point is not so much that First Amendment
rights are necessary for the cognitive attainment of truth as that a free trade
in ideas is necessary for determining what a democracy ought to do.262
The explicit connection between First Amendment rights and the prin-
ciple of self-governance was first drawn in a Supreme Court opinion by
Justice Louis Brandeis in 1920, who in dissent wrote:
The right of a citizen of the United States to take part, for his own or
the country’s benefit, in the making of federal laws and in the conduct
of the government, necessarily includes the right to speak or write
about them; to endeavor to make his own opinion concerning laws
existing or contemplated prevail; and, to this end, to teach the truth
as he sees it. Were this not so, “the right of the people to assemble
for the purpose of petitioning Congress for a redress of grievance or
for anything else connected with the powers or duties of the national
government” would be a right totally without substance. . . . Full and
free exercise of this right by the citizen is ordinarily also his duty; for
its exercise is more important to the nation than it is to himself. Like
the course of the heavenly bodies, harmony in national life is a resultant
of the struggle between contending forces. In frank expression of con-
flicting opinion lies the greatest promise of wisdom in governmental
action; and in suppression lies ordinarily the greatest peril.263
Brandeis is clear that freedom of speech is a pathway to self-government.

Freedom of speech allows each citizen personally “to endeavor to make his
own opinion concerning laws existing or contemplated prevail.” So long

as “governmental action” is responsive to “the resultant of the struggle
between contending forces,” each citizen can directly take part “in the
conduct of the government.” In effect, Brandeis imagines communicative
rights as establishing the form of self-governance associated with discursive
democracy. Seven years later Brandeis would defend First Amendment
rights as “essential to effective democracy.”264 “Those who won our inde-
pendence believed . . . that public discussion is a political duty; and that
this should be a fundamental principle of the American government.”265
It was on the foundation of Brandeis’s conception of the First Amend-
ment that the Court in the 1930s began to erect the structure of First
Amendment doctrine. In the spare and muscular prose of Chief Justice
Hughes’s pioneering 1931 opinion in Stromberg v. California: “The mainte-
nance of the opportunity for free political discussion to the end that gov-
ernment may be responsive to the will of the people and that changes may
be obtained by lawful means, an opportunity essential to the security of
the Republic, is a fundamental principle of our constitutional system.”266
For the past eighty years, First Amendment jurisprudence has been
founded on the premise that “speech concerning public affairs is . . . the
essence of self-government.”267 The Court has repeatedly emphasized that
the First Amendment exemplifies “a “profound national commitment”
to the principle that “debate on public issues should be uninhibited,
robust, and wide-open.”268 “Speech on public issues occupies the ‘highest
rung of the hierarchy of First Amendment values’ and is entitled to spe-
cial protection,”269 because “discussion of public issues and debate on the
qualifications of candidates are integral to the operation of the system of
government established by our Constitution.”270
The First Amendment has protected such speech not primarily to
sustain representative integrity, but instead, as Brandeis contemplated,
to enable persons to become directly involved “in the conduct of the
government.” To understand First Amendment doctrine, therefore, and
especially the kind of doctrine that is relevant to a decision such as Citi-
zens United, we must conceive First Amendment rights as designed to
protect the processes of democratic legitimation required for discursive
democracy.271 As the Court affirmed just this past year, “Rights protected
by the First Amendment” safeguard “our Nation’s commitment to self-
government” by defining “ ‘an open marketplace’ in which differing ideas
about political, economic, and social issues can compete freely for public
acceptance without improper government interference.”272
The precise nature and scope of First Amendment rights are of course
controversial. We debate endlessly about how the First Amendment ought
to apply to particular circumstances. If the historical account I have just
offered is accurate, these controversies should be adjudicated according to
the needs of democratic legitimation. When we argue about the content
of First Amendment rights, we debate how best to advance the value of
self-government in the context of ongoing public debate.
It is for this reason that we celebrate the First Amendment “as the
guardian of our democracy,”273 even though we use the First Amendment
chiefly to strike down legislation that has been enacted according to repre-
sentative procedures that are otherwise majoritarian and “democratic.” The
First Amendment can remain the guardian of our democracy only so long
as we interpret its requirements to promote the value of self-determination.
Discursive democracy requires that the “demanding communicative pre-
suppositions . . . that regulate the flow of discursive opinion- and will-
formation”274 be defined so as to facilitate democratic legitimation. At a
minimum, First Amendment rights must guarantee that “every citizen is a
potential participant, a potential politician. The potentiality is the neces-
sary condition of the citizen’s self-respect.”275
This is now all so obvious that we never pause to ask why First Amend-
ment doctrine did not emerge until the aftermath of World War I. By the
time the Court came to decide Citizens United in 2010, the foundational
status of First Amendment rights was simply assumed. The Court did
not pause to ask why First Amendment rights would trump the interests
of representative integrity, which were advanced to justify the campaign
finance reform measures at issue in Citizens United. If the Court were
pressed, however, it would have had to explain that the discursive democ-
racy established by First Amendment rights takes precedence over repre-
sentation as a pathway for American self-government.
Why might that be so? We might regard the question as obtuse. First
Amendment rights are constitutional, and in our government constitu-
tional rights take precedence over mere legislation. But for more than a
century the nation did not interpret First Amendment rights as requiring
judicial enforcement. Why did our interpretation of the First Amendment
change in the decades after World War I?
In this regard, it seems significant that First Amendment rights arose
concomitantly with the growth of American pluralism.276 Since the Pro-
gressive Era, Americans have believed that government should be directly
responsive to the advocacy of citizens and their expressive associations.277
As Arthur Bentley famously observed in 1908, politics in the United States

can be understood only if we “strike much deeper” than the “level” of
political parties to identify private groups and their interests.278 American
politicians are continuously tempted to abandon “party loyalty in order to
tend to the demands of organized constituencies.”279
Within the sphere of public opinion formation, individuals join groups
and constituencies, which range from unions to the National Rifle Asso-
ciation, just as they might join a political party within the sphere of repre-
sentative government. The primacy of discursive democracy in the United
States corresponds to the significance of political debate that occurs out-
side the strict domain of representation. Americans have come to expect
that their government will be responsive to that debate. It may be that in
this sense the unique power of American First Amendment rights is con-
nected to the unique weakness of the American party structure,280 which
characteristically forces Americans to engage in open battles for public
opinion outside representational structures of governance.
In my second lecture I shall discuss the nature of the communicative
rights guaranteed by the First Amendment. These rights are connected
to self-government only if the actions of the state are understood to be
responsive to public opinion. I shall inquire why we might believe that
the state is responsive to public opinion. This is not an inquiry pursued
by the Court in Citizens United. Instead, the Court applied First Amend-
ment doctrine as though it were a repository of abstract and categorical
rules. It never asked what these rules were designed to accomplish, and as a
consequence it could not begin to explain how discursive democracy might
be connected to the representative integrity that campaign finance reform
seeks to sustain. It is to that question that I shall turn in the next lecture.
Notes
I am deeply grateful for the research and assistance of a sterling group of students:
Joshua Bone, Rob Cobbs, Bridget Fahey, Jed Glickstein, Marvin Lim, and Erin Miller.
Even in the best of times, it would have been difficult to explore the new and chal-
lenging material in these lectures, but in the midst of deaning a great and demanding
institution, it would have been simply inconceivable. The persistently imaginative,
informative, and insightful scholarship of this remarkable team of students made
these lectures possible. I have merely followed where they have led. Kevin Lamb was
also of great assistance, as were Rachel Bayefsky, Lauren Bilsacky, and Wanling Su.
I am also grateful for the generous and helpful comments of Floyd Abrams, Bruce
Ackerman, Heather Gerken, Dieter Grimm, Michael Ignatieff, Sam Issacharoff, Chris-
tine Jolls, Alexander Keyssar, Alvin Klevorick, Sandy Levinson, Justin Levitt, Rick
Pildes, Sasha Post, David Pozen, David Rabban, Judith Resnik, Reva Siegel, Dennis
Thompson, Larry Tribe, Daniel Viehoff, James Weinstein, and John Witt.
1. 424 U.S. 1 (1976).

2. By 1994 Buckley could plausibly be characterized “as one of the most vilified
Supreme Court decisions of the post–World War II era,” a decision that in its
structure and consequences is “the modern-day analogue of the infamous and
discredited case of Lochner v. New York.” Cass R. Sunstein, “Political Equality
and Unintended Consequences,” Columbia Law Review (1994): 1394, 1397.
3. 130 S.Ct. 876 (2010). For a description of the circumstances of the opinion, see
Jeffrey Toobin, “Annals of the Law: Money Unlimited: The Chief Justice and
Citizens United,” New Yorker, May 21, 2012, 36.
4. The Court did go out of its way to affirm campaign finance regulation involving
merely requirements of disclosure. 130 S.Ct. at 914–17.
5. Editorial, “The Rationalization of Recall,” Harlan (KY) Daily Enterprise, June 15,
2012, 4.
6. “Americans of both parties overwhelmingly oppose a Supreme Court ruling
that allows corporations and unions to spend as much as they want on political
campaigns, and favor new limits on such spending, according to a new Wash-
ington Post–ABC News poll. Eight in 10 poll respondents say they oppose the
high court’s Jan. 21 decision to allow unfettered corporate political spending,
with 65 percent ‘strongly’ opposed. . . . The polls reveal relatively little difference
of opinion on the issue among Democrats (85 percent opposed to the ruling),
Republicans (76 percent) and independents (81 percent).” Dan Eggen, “Poll:
Large Majority Opposes Supreme Court’s Decision on Campaign Financ-
ing,” Washington Post, February 17, 2010. Public opinion polling ten months
after the decision reflected continued hostility. According to a Constitutional
Attitudes Survey conducted by Harvard and Columbia professors in October
2010, 58 percent of survey respondents disagreed that “corporations ought to
be able to spend their profits on TV advertisements urging voters to vote for
or against candidates,” and 85 percent indicated that corporations should be
required to get approval from shareholders for campaign-related expenditures.
The results led a poll designer to note that Citizens United is “very out of step
with public opinion.” Jon Hood, “Poll Finds Most Recent Supreme Court Deci-
sions Popular: Corporate-Friendly Citizens United Ruling Highly Unpopular,”
Consumer Affairs, October 18, 2010, http://w ww. consumeraffairs. com/n ews04/
2010/10/poll-respondents-mostly-approve-of-recent-supreme-court-decisions
.html. Reviewing the decision in the New York Review of Books, Ronald Dworkin
observed that “no Supreme decision in decades has generated such open hostili-
ties among the three branches of our government as has the Court’s 5–4 decision
in Citizens United v. FEC in January 2010.” Ronald Dworkin, “The Decision That
Threatens Democracy,” New York Review of Books, May 13, 2010. “The Supreme
Court’s conservative phalanx has demonstrated once again its power and will
to reverse America’s drive to greater equality and more genuine democracy.
It threatens a step-by-step return to a constitutional stone age of right-wing ide-
ology. Once again it offers justifications that are untenable in both constitutional
theory and legal precedent.” See also Richard H. Pildes, “Is the Supreme Court a
‘Majoritarian’ Institution?,” Supreme Court Review (2010) (“Public support for
campaign finance reform (other than public financing) has been extremely high
for many years” [126]) and (“Citizens United is the most countermajoritarian
decision invalidating national legislation on an issue of high public salience in
the last quarter century” [157]).
7. 130 S.Ct. at 917.
8. Ibid. at 931 (Stevens, J., dissenting).
9. “Debate on these issues has reached an impasse. . . . The chasm that separates
the Justices from one another appears unbridgeable.” Lillian R. BeVier, “Full of
Surprises—and More to Come: Randall v. Sorrell, the First Amendment, and
Campaign Finance Regulation,” Supreme Court Review (2006): 195.
10. It is plain enough that ideological and perhaps even partisan divisions have sig-
nificantly influenced the debate among the justices. Because I cannot influence
these divisions, I am, for purposes of these lectures, setting them aside.
11. I would exempt from this point a number of excellent articles that, in my view,
point the way toward a constructive account of how campaign finance regula-
tion may be reconciled with the First Amendment. This account, which I shall
explore in these lectures, conceives elections as distinct managerial domains.
To my knowledge, this account first appeared in C. Edwin Baker, “Campaign
Expenditures and Free Speech,” Harvard Civil Rights–Civil Liberties Law
Review 33 (1998); and Burt Neuborne, “The Supreme Court and Free Speech:
Love and a Question,” St. Louis University Law Journal 42 (1998). Their work
was quickly followed by Richard Briffault, “Issue Advocacy: Redrawing the
Elections/Politics Line,” Texas Law Review 77 (1999); and Frederick Schauer
and Richard H. Pildes, “Electoral Exceptionalism and the First Amendment,”
Texas Law Review 77 (1999). Recent excellent examples in this genre include
Samuel Issacharoff, “The Constitutional Logic of Campaign Finance Regula-
tion,” Pepperdine Law Review 36 (2009); Saul Zipkin, “The Election Period and
Regulation of the Democratic Process,” William and Mary Bill of Rights Journal
18 (2010); and Dennis F. Thompson, “Election Time: Normative Implications
of Temporal Properties of the Electoral Process in the United States,” American
Political Science Review 98 (2004). I myself was an early and tentative contribu-
tor to this line of thought in Robert Post, “Regulating Election Speech under
the First Amendment,” Texas Law Review 77 (1999).
12. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 669–61 (1990).
13. Buckley, 424 U.S. at 48–49.
14. Samuel Issacharoff and Pamela S. Karlan, “The Hydraulics of Campaign Finance
Reform,” Texas Law Review 77 (1999).
15. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to
Stop It (New York: Twelve, 2011).
16. 130 S.Ct. at 898.
17. Ibid.
18. Ibid., 954 (Stevens, J., dissenting), quoting Pipefitters v. United States, 407 U.S.
385, 409, 450 (1972) (Powell, J., dissenting).
19. Ibid., 960.
20. Ibid., 957.
21. Daniel R. Ortiz, “The Engaged and the Inert: Theorizing Political Personality
under the First Amendment,” Virginia Law Review 81 (1995): 7–10.
22. Bruce Ackerman and James S. Fishkin, Deliberation Day (New Haven, CT: Yale
University Press, 2004), 159–63.
23. Declaration of Independence.
24. Considerations on the Nature and the Extent of the Legislative Authority of the
British Parliament (Philadelphia, 1774), 3.
25. James Wilson, Commentaries on the Constitution of the United States of America
(1792), 40.
26. James Madison, in The Records of the Federal Convention of 1787, edited by Max
Farrand (New Haven, CT: Yale University Press, 1966), 2:476.
27. Federalist No. 39.
28. Federalist No. 10 (Madison).

29. Thomas Paine, The Rights of Man (1797), 28.
30. John Adams, Defence of the Constitutions of the Government of the United States
(1794), 3:214.
31. Federalist No. 63 (Madison). Unlike other framers who believed that “represen-
tation was a thing unknown in the ancient democracies” (Paine, The Rights of
Man, 27), Madison argued that past democratic societies had made use of repre-
sentation, but he insisted that the American experiment was unique insofar as it
required “the total exclusion of the people in their collective capacity” from any
share in the government. For a discussion of the shift from direct face-to-face
democracy to representation, see James S. Fishkin, The Voice of the People: Public
Opinion and Democracy (New Haven, CT: Yale University Press, 1997), 26–29.
For a study on the history of idea of representation, see Edmund S. Morgan,
Inventing the People: The Rise of Popular Sovereignty in England and America
(New York: W. W. Norton, 1989); J. R. Pole, Political Representation in England
and the Origins of the American Republic (New York: St. Martin’s Press, 1966).
32. James Madison, in Records of the Federal Convention of 1787, edited by
Farrand, 2:9.
33. William Patterson, in ibid., 1:561.
34. Wilson, Commentaries on the Constitution of the United States of America, 87–88.
35. Jean-Jacques Rousseau, An Inquiry into the Nature of the Social Contract; or,
Principles of Political Right (London, 1791), 265–66.
36. Ibid., 266.
37. Wilson, Commentaries on the Constitution of the United States of America, 39–31.
38. Considerations on the Nature and the Extent of the Legislative Authority of the
British Parliament, at 21. “If a person is bound, only because he is represented,
it must certainly follow that whenever he is not represented he is not bound.”
39. The Writings of John Dickinson, vol. 1, Political Writings, 1764–1774, edited by
Paul Leicester Ford (Philadelphia: Historical Society of Pennsylvania, 1895), 357.
40. William Knox, The Controversy between Great Britain and Her Colonies Reviewed
(1769), 67.
41. Thomas Whately, The Regulations Lately Made Concerning the Colonies and the
Taxes Imposed upon Them Considered, 3rd ed. (1775), 108. See also Ian R. Chris-
tie, “A Vision of Empire: Thomas Whately and the Regulations Lately Made
Concerning the Colonies,” 113, no. 451 English Historical Review (1998).
42. Whately, Regulations Lately Made Concerning the Colonies, 109.
43. Ibid. Whately continued that the rights and interests of British commons ought
to be the sole consideration of each member of Parliament:
However his own Borough may be affected by general Dispositions; . . .

and to sacrifice these to a partial Advantage in favour of the Place where
he was chosen, would be a Departure from his Duty; if it were oth-
erwise, Old Sarum would enjoy Privilege essential to Liberty, which
are denied to Birmingham and to Manchester; but as it is, they and
the Colonies, and all British Subjects whatever, have an equal Share in
the general Representation of the Commons of Great Britain, and are
bound by the Consent of the Majority of that House, whether their
own particular Representatives consented to or opposed the Measures
there taken, or whether they had, or had not particular Representatives
there. (Ibid.)
Writing on the subject of Irish Catholics in 1792, Edmund Burke, in Letter

to Sir Hercules Langrishe, in The Writings and Speeches of the Right Honourable
Edmund Burke, Beaconsfield ed. (1901), would later develop a theoretical frame-
work for the concept of “virtual” representation invoked by Whately:
Virtual representation is that in which there is a communion of inter-

ests and a sympathy in feelings and desires between those who act in
the name of any description of people and the people in whose name
they act, though the trustees are not actually chosen by them. This is
virtual representation. Such a representation I think to be in many cases
even better than the actual. It possesses most of its advantages, and is
free from many of its inconveniences; it corrects the irregularities in the
literal representation, when the shifting current of human affairs or the
acting of public interests in different ways carry it obliquely from its first
line of direction. . . . But this sort of virtual representation cannot have
a long or sure existence, if it has not a substratum in the actual. (293)
44. The Declarations of the Stamp Act Congress (1765) in Edmund S. Morgan, ed., Pro-
logue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764–1766
(New York: W. W. Norton, 1973), 63.
45. Hence the subsequent rejection of the concept of representation by lot, which
might be thought the most accurate form of selection if, as the colonists some-
times said, “the representative assembly should be an exact portrait, in miniature,
of the people at large.” The Works of John Adams (1851) (1776), 205. Representa-
tion by lot continues in institutions such as juries, but for two centuries it has
had no place in the selection of governmental representatives. The story of how
the principle of consent altered the nature of representation is told in Bernard
Manin, The Principles of Representative Government (Cambridge: Cambridge
University Press, 1997).
46. The Declarations of the Stamp Act Congress (1765), in Prologue to Revolution,
edited by Morgan, 63.
47. A Letter from a Plain Yeoman (1765), in Prologue to Revolution, edited by Mor-
gan, 75–76.
48. Journals of the Continental Congress, 1774–1789 (October 14, 1774) (1904), 68.
Farrand, 1:135.
50. Daniel Dulany, Considerations on the Propriety of Imposing Taxes in the British
Colonies for the purpose of raising a Revenue by Act of Parliament (1765), in Mor-
gan, Prologue to Revolution, 82. Because the colonists had no intention of them-
selves creating universal manhood suffrage, much less of allowing women to vote,
they needed something like the British concept of virtual representation, which
they cashed out much as Burke would, in Letter to Sir Hercules Langrishe:
The Security of the Non-Electors against Oppression, is, that their

Oppression will fall also upon the Electors and the Representatives. The
one can’t be injured, and the other indemnified. . . .
The Electors, who are inseparably connected in their Interests with
the Non-Electors, may be justly deemed to be the representatives of
the Non-Electors, at the same Time they exercise their personal Privi-
lege in their Right of Election, and the Members chosen, therefore, the
Representatives of both. This is the only rational Explanation of the

Expression, virtual Representation.
Dulany, Considerations on the Propriety of Imposing Taxes, 80. There are

obvious tensions between the principle of consent and the principle of com-
monality of interests, tensions that over the past centuries have been resolved
by a secular trend toward universal suffrage.
Farrand, 1:321.
52. James Madison, in ibid., 50.
53. See, for example, Akhil Reed Amar, America’s Constitution: A Biography
(New York: Random House, 2005), 64–84; Jack N. Rakove, Original Mean-
ings: Politics and Ideas in the Making of the Constitution (New York: Alfred A.
Knopf, 1996), 203–43.
54. Rawlins Lowndes (South Carolina), in The Debates in the Several State Conven-
tions on the Adoption of the Federal Constitution, edited by Jonathan Elliot (Phila-
delphia: J. B. Lippincott, 1836), 4:288. In Virginia Patrick Henry thundered:
The honorable gentleman was pleased to say that the representation

of the people was the vital principle of this government. I will readily
agree that it ought to be so. But I contend that this principle is only
nominally, and not substantially, to be found there. We contended with
the British about representation. They offered us such representation as
Congress now does. They called it a virtual representation. . . . Is there
but a virtual representation in the upper house? The states are repre-
sented, as states, by two senators each. This is virtual, not actual. They
encounter you with Rhode Island and Delaware. This is not an actual
representation. What does the term representation signify? It means
that a certain district—a certain association of men—should be repre-
sented in the government, for certain ends. . . . Here, sir, this populous
state has not an adequate share of legislative influence. The two petty
states of Rhode Island and Delaware, which, together, are infinitely
inferior to this state in extent and population, have double her weight,
and can counteract her interest. I say that the representation in the Sen-
ate, as applicable to states, is not actual. Representation is not, therefore,
the vital principle of this government.
Elliot, Debates in the Several State Conventions, 3:324.

55. George Mason, in Records of the Federal Convention of 1787, edited by Farrand,
1:48.
56. James Madison, in ibid., 49–50.
57. Edmund Randolph, in ibid., 58. See ibid., 517 (Gouverneur Morris) (“the turbu-
lency of democracy”).
58. Alexander Hamilton, in ibid., 289.
59. Madison, in ibid., 430.
60. Hamilton, in ibid., 432. See Lycergus, Observations on the Present Situation and
the Future Prospects of This and the United States, the New Haven Gazette, and
the Connecticut Magazine, March 23, 1786:
In a democracy the power remains in the people, and every sub-

ject enjoys his full share of liberty and legislation. But there is a great
difference between an absolute democracy and a form of government

either wholly or partly democratical; for an absolute democracy,
in which all power should remain in the hands of the people, undel-
egated to any magistrate or representative, is a perfect anarchy, and
deserves not the name of a government: but in a democratical govern-
ment, all power is entrusted in the hands of the magistrates, judges,
representatives, and other officers, eligible only by the people, chosen
for stated periods, and accountable for their conduct in office to proper
judicatures.
Between an absolute democracy and a democratical government,
there is a certain mode of political existence, in which all forms of
government are preserved, magistrates, judges and other officers duly
elected, nominal authority amply bestowed, but no real power given
out of the hands of the people. This mode is the most favourable to
the liberties of the subject, and I congratulate my country that it is
completely adopted in the general constitution of our empire. (1)
61. John Marshall, The Life of George Washington (Indianapolis: Liberty Fund,
2000), 467.
62. James Madison, Federalist No. 10.
63. Ibid. An extended sphere of governance also meant that the state could encom-
pass a “greater variety of parties and interests,” so that it would be “less probable
that a majority of the whole will have a common motive to invade the rights of
other citizens; or if such a common motive exists, it will be more difficult for all
who feel it to discover their own strength, and to act in unison with each other.”
As Madison argued at the Constitutional Convention:
The lesson we are to draw from the whole is that where a majority
are united by a common sentiment and have an opportunity, the rights
of the minor party become insecure. In a Republican Govt. the Major-
ity if united have always an opportunity. The only remedy is to enlarge
the sphere, & thereby divide the community into so great a number of
interests & parties, that in the 1st place a majority will not be likely at
the same moment to have a common interest separate from that of the
whole or of the minority; and in the 2d. place, that in case they shd.
Have such an interest, they may not be apt to unite in the pursuit of
it. It was incumbent on us then to try this remedy, and with that view
to frame a republican system on such a scale & in such a form as will
control all the evils wch. have been experienced.
James Madison, in Records of the Federal Convention of 1787, edited by Far-

rand, 1:136.
64. Robert H. Wiebe, Self-Rule: A Cultural History of American Democracy (Chi-
cago: University of Chicago Press, 1995), 18. “Hierarchies . . . had organized 18th
century life everywhere in the Western world, including America. In economic
opportunities and political prerogatives, in dress and language, in the control
of information and the right to speak, in all aspects of public life, obvious and
subtle, hierarchy’s privileges came graded along a social scale, and society’s func-
tion depended upon a general acceptance of those differences” (17).
65. See Thomas Benton, Abridgement of the Debates of Congress, 1789–96 (August 15,
1789) (1857), 1:138.
66. See Pennsylvania Constitution, Declaration of Rights XVII (1776); North Caro-

lina Constitution, Declaration of Rights XVIII (1776); Massachusetts Constitu-
tion, Article XIX (1780); New Hampshire Constitution, Bill of Rights XXXII
(1784); Vermont Constitution, Chapter 1, XXII (1786).
67. Benton, Abridgement of the Debates of Congress, 1:143 (remarks of Representative
John Page of Virginia).
68. Ibid., 139 (remarks of Representative John Page of Virginia). Page continued:
“Under a democracy, whose great end is to form a code of laws congenial with
the public sentiment, the popular opinion ought to be collected and attended
to.” Elberidge Gerry of Massachusetts hammered home this point: “The friends
and patrons of this constitution have always declared that the sovereignty resides
in the people, and that they do not part with it on any occasion; to say the sover-
eignty vests in the people, and that they have not a right to instruct and control
their representatives, is absurd to the last degree” (140).
69. Ibid., 138 (remarks of Representative Thomas Hartley of Pennsylvania). Hartley
continued, “It appears to my mind, that the principle of representation is distinct
from an agency, which may require written instructions. The great end of meet-
ing is to consult for the common good; but can the common good be discerned
without the object is reflected and shown in every light. A local or partial view
does not necessarily enable any man to comprehend it clearly; this can only result
from an inspection into the aggregate. Instructions viewed in this light will be
found to embarrass the best and wisest men” (138–39).
70. Ibid., 139 (remarks of Representative George Clymer of Pennsylvania), 763.
71. Ibid., 139. See Zephaniah Swift, A System of the Laws of the State of Connecticut
(1795), 1:35:
A government by representation, implies the idea that the repre-

sentatives stand in the place of the people, and are vested with all their
power, within the constitution. In the legislature, therefore, consisting
of the representatives, is concentered the majesty of the people, and
the supremacy of the government. They are neither bound to obey the
instruction, nor to consult the will of the people—but being in their
place, and vested with all their power, they have a right to adopt and
pursue such measures as in their judgment, are best calculated to pro-
mote the happiness and welfare of the community, in the same man-
ner as the people themselves would act, if it were possible for them to
assemble and deliberate on their common concerns. The reason why
the instructions of the people are not to be regarded is, because it is
impossible that the general sense should be collected: and even if that
could be done, they have not those means of information which are nec-
essary to qualify them to deliberate and decide. As to the instructions
from any particular district, to the representative by them elected, they
ought to have no influence, because when elected, a person becomes the
representative of the community at large; he cannot therefore regard
the instructions of his immediate constituents, but must consult the
general good of the community and not the particular advantage of a
district
72. The right of instruction was, however, frequently claimed on behalf of state
legislatures seeking to instruct their senators. See Clement Eaton, “Southern
Senators and the Right of Instruction, 1789–1860,” Journal of Southern History
18 (1952); William S. Hoffmann, “Willie P. Mangum and the Whig Revival of

the Doctrine of Instructions,” Journal of Southern History 22 (1956).
73. See, for example, David Rabban, “The Ahistorical Historian: Leonard Levy on
Freedom of Expression in Early American History,” Stanford Law Review 37
(1985).
74. Benton, Abridgement of the Debates of Congress, 1:141. See Manin, Principles of
Representative Government, 179–73, for a discussion. To Madison’s list should
be added the revolutionary implications of requiring the Congress to keep a
public journal. Article I, Section 5. On the implications of opening up legislative
debates, see J. R. Pole, The Gift of Government (Athens: University of Georgia
Press, 2008), 117–40. Pole observes: “Neither political representation nor popu-
lar government was a new idea at the time of the American Revolution. What
was new in the politics of the time was the use of representation as a clearly
defined institutional bridge between people and government. The two-way traf-
fic over this bridge was a traffic in knowledge” (140).
75. Madison, in Records of the Federal Convention of 1787, edited by Farrand, 1:50.
76. Madison, The Report of 1800, in vol. 17 of The Papers of James Madison, edited by
David B. Mattern et al. (Charlottesville: University Press of Virginia, 1991), 344.
77. Nathaniel Gorham, in Records of the Federal Convention of 1787, edited by
Farrand, 1:381.
78. Roger Sherman, in ibid., 423.
79. Madison, Federalist No. 57.
82. Ibid.
85. Madison, Federalist No. 52. “The definition of the right of suffrage is very justly
regarded as a fundamental article of republican government.”
86. Madison, Federalist No. 56 (the representative assembly should be large enough
to fulfill the “sound and important principle that the representative ought to be
acquainted with the interests and circumstances of his constituents”).
87. “Essays of Brutus,” New York Journal, October 18, 1787, in The Anti-Federalist:
An Abridgment, by Murray Dry, of The Complete Anti-Federalist Edited, with
Commentary and Notes, by Herbert J. Storing (Chicago: University of Chicago
Press, 1985), 114. “In a free republic, although all laws are derived from the con-
sent of the people, yet the people do not declare their consent by themselves in
person, but by representatives, chosen by them, who are supposed to know the
minds of their constituents, and to be possessed of integrity to declare this mind”
(ibid.).
88. Ibid., 125.
89. Ibid., 129.
90. Ibid., 129–30.
91. Ibid., 139–31.
93. Ibid.
94. Ibid. “What are we to say to the men who profess the most flaming zeal for
republican government,” Madison asked, “who pretend to be champions for the
right and the capacity of the people to choose their own rulers, yet maintain that
they will prefer those only who will immediately and infallibly betray the trust
committed to them?”

96. “Essays of Brutus,” 124–25. The legislative body “ought to be so constituted, that
a person, who is a stranger to the country, might be able to form a just idea of
their character, by knowing that of their representatives. They are the sign—the
people are the things signified” (124).
97. Ibid., 129.
98. The story is well told in Wiebe, Self-Rule. See Sean Wilentz, The Rise of American
Democracy: Jefferson to Lincoln (New York: W. W. Norton, 2005).
99. Wiebe, Self-Rule, 38–39.
100. James Madison, “Public Opinion,” National Gazette, December 19, 1791, in Papers
of Madison, 14:170. A month later Madison repeated the thought: “All power
has been traced up to opinion. The stability of all governments and security of
all rights may be traced to the same source. The most arbitrary government is
controlled where the public opinion is fixed. . . . How devoutly is it to be wished,
then, that the public opinion of the United States should be enlightened, that
it should attach itself to their governments as delineated in the great charters,
derived . . . from the legitimate authority of the people.” “Charters,” National
Gazette, January 18, 1792, in Papers of Madison, 14:468. Madison’s thinking on
the controlling power of public opinion may be traced to David Hume: “As force
is always on the side of the governed, the governors have nothing to support
them but opinion. It is, therefore, on opinion only that government is founded;
and this maxim extends to the most despotic and most military governments,
as well as to the most free and most popular.” David Hume, Of the First Principles
of Government, in Essays: Moral, Political, and Literary, edited by T. H. Green
and T. H. Grose (1889), 1:110.
101. Madison, “Public Opinion.” With startling profundity, and anticipating the
insights a generation later of de Tocqueville, Madison went on to observe:
The larger a country, the less easy for its real opinion to be ascer-
tained, and the less difficult to be counterfeited; when ascertained or
presumed, the more respectable it is in the eyes of individuals. This is
favorable to the authority of government. For the same reason, the more
extensive a country, the more insignificant is each individual in his own
eyes. This may be unfavorable to liberty.
Whatever facilitates a general intercourse of sentiments, as good
roads, domestic commerce, a free press, and particularly a circulation of
newspapers through the entire body of the people, and representatives
going from and returning among every part of them, is equivalent to a
contraction of territorial limits, and is favorable to liberty, where these
may be too extensive.
102. James Madison, Notes for the “National Gazette” Essays, in Papers of Madison,
4:168.
103. Colleen A. Sheehan, James Madison and the Spirit of Republican Self-Government
(New York: Cambridge University Press, 2009), 105.
104. William Leggett, “Direct Taxation,” Evening Post, April 22, 1834, in A Collection
of the Political Writings of William Leggett, edited by Theodore Sedgwick Jr.
(1840), 1:262.
105. Ibid.
106. Alexis de Tocqueville, Democracy in America, translated by Henry Reeve
(New York: D. Appleton, 1899), 1:33.
107. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the
United States (New York: Basic Books, 2000).
108. De Tocqueville, Democracy in America, 1:219–11.
109. Ibid., 272.
110. Ibid., 175.
111. George Bancroft, Oration Delivered on the Fourth of July 1826 at Northampton,
Mass (Northampton, MA: T. W. Shephard, 1826), 20.
112. De Tocqueville, Democracy in America, 2:493.
113. “The Democratic Principles: The Importance of Its Assertion, and Application
to Our Political System and Literature,” United States Magazine and Democratic
Review 1 (1837): 4–5.
114. Representative Thomas R. Mitchell, 2, pt. 2, Congressional Debates, 1729–30
(March 22, 1826). The sentiment was more or less commonplace during the Jack-
sonian era. Benjamin Franklin Butler, Representative Democracy in the United
States: An Address Delivered before the Senate of Union College, edited by C.
Van Benthuysen (1841), 20 (“Representative government necessarily implies the
supremacy of the constituents over the agents to whom they have delegated their
authority, and entrusted the management of their concerns. When it emanates,
freely and in just proportions, from the whole people, it is as much a government
of the people, as the more simple form of an immediate democracy. The only
difference is, that in the one case the people act personally; in the other, by their
substitutes”).
115. James Madison, “Government of the United States,” National Gazette, Febru-
ary 4, 1792.
116. State of the Union address, December 8, 1829.
117. Woodrow Wilson, Division and Reunion, 1829–1898 (New York: Longmans,
Green, 1895), 12. Compare Bancroft in 1826: “With the people the power resides,
both theoretically and practically. The government is a democracy, a determined,
uncompromising democracy; administered immediately by the people, or by the
people‘s responsible agents.” Bancroft, Oration Delivered on the Fourth of July
1826, 19.
118. George Bancroft, “Eulogy on the Life and Character of General Jackson”
( June 27, 1845), in Life and Public Services of Gen. Andrew Jackson, Seventh
President of the United States: Including the Most Important of His State Papers
(Buffalo, NY: G. H. Derby, 1852), 209.
119. “The Democratic Principles,” 3.
120. The depth of this transformation is difficult to appreciate. As late as 1821 Alex-
ander Hill Everett could write that “where the representative principle is intro-
duced, the form in which the elections are made is altogether indifferent. The
result will be the same, whether they are made by a small or a large proportion
of the citizens, by the rich or the poor, on the same or on various principles,
at one degree, at two, or at three. The same individuals will in fact be designated
by all these different methods. The number of persons to whom the confidence
of the public attaches itself is not very great: and every form of election that
can be indicated is only another mode of proclaiming them.” Alexander Hill
Everett, “Dialogue on the Principles of Representative Government, between
the President de Montesquieu and Dr. Franklin,” North-American Review and
Miscellaneous Journal 12 (April 1821): 360. On the complexities of the transi-
tion from a deference society, see Ronald P. Formisano, “Deferential-Participant
Politics: The Early Republic’s Political Culture, 1789–1840,” American Political
Science Review 68 (1974).
121. “The Democratic Principles,” 1.

122. Wilentz, Rise of American Democracy, 516. “Elections were the crucial events
for this new democracy, toward which all organizing efforts led. But elections
were only the culmination of a continual effort to draw together the faithful.
In place of the discarded nominating caucuses, the Jacksonians substituted a
national network of committees, reaching up from the ward and township level
to the quadrennial national convention, each a place where, at least in prin-
ciple, the popular will would be determined and ratified. The political ferment
continued almost year-round, with local committees calling regular meetings
to approve local nominations, pass public resolutions, and mount elaborate
processions.” Ibid.
123. David J. Russo, “The Major Political Issues of the Jacksonian Period and the
Development of Party Loyalty in Congress, 1839–1840,” Transactions of the
American Philosophical Society, n.s., 62, no. 5 (1972): 48.
124. For contemporary work theorizing how parties can continue to serve this func-
tion, see, for example, Christopher S. Elmendorf and David Schleicher, “Dis-
tricting for a Low Information Electorate,” Yale Law Journal 121 (2012); David
Schleicher, “What If Europe Held an Election and No One Cared?,” Harvard
International Law Journal 52 (2011). Elmendorf and Schleicher build on the
foundational work of Morris Fiorina in Morris P. Fiorina, Retrospective Voting
in American National Elections (New Haven, CT: Yale University Press, 1981).
125. William Leggett, “Small Note Circulation,” Evening Post, August 6, 1834,
in Political Writings of Leggett, 41.
126. William Leggett, “Rich and Poor,” Evening Post, December 6, 1834, in Leggett,
Political Writings of Leggett, 109. See Leggett, “Monopolies,” Evening Post,
November 1834, in ibid., 91 (“What have the People, the Democracy, been strug-
gling for in the last election? was it merely to satisfy a personal predilection in
favour of a few leaders, and to gratify a personal dislike to a few others; or was
it for certain great principles, combined in the one great general term of equal
rights?”).
127. William Leggett, “Prefatory Remarks,” Plain Dealer, December 3, 1836, in Politi-
cal Writings of Leggett, 2:110. Leggett explicitly invokes Edmund Burke, Thoughts
on the Present Cause of the Present Discontents (1770), 119–11, in which Burke
writes that “party is a body of men united for promoting by their joint endeav-
ours the national interest, upon some particular principle in which they are all
agreed.”
For my part, I find it impossible to conceive that any one believes

in his own politics, or thinks them to be of any weight, who refuses to
adopt the means of having them reduced into practice. It is the business
of the speculative philosopher to mark the proper ends of Government.
It is the business of the politician, who is the philosopher in action,
to find out proper means towards those ends, and to employ them with
effect. Therefore, every honourable connection will avow it as their
first purpose to pursue every just method to put the men who hold
their opinions into such a condition as may enable them to carry their
common plans into execution, with all the power and authority of the
State. . . . Without a proscription of others, they are bound to give to
their own party the preference in all things, and by no means, for private
considerations, to accept any offers of power in which the whole body
is not included, nor to suffer themselves to be led, or to be controlled,
or to be over-balanced, in office or in council, by those who contradict,

the very fundamental principles on which their party is formed, and
even those upon which every fair connection must stand. Such a gener-
ous contention for power, on such manly and honourable maxims, will
easily be distinguished from the mean and interested struggle for place
and emolument.
128. Woodrow Wilson, Constitutional Government in the United States (New York:

Columbia University Press, 1908), 203.
129. Ibid., 205.
130. Ibid., 206. See Formisano, “Deferential-Participant Politics,” 475 (“Indeed, the
party’s inherent ambition to unify various levels of government violated the
Whig heritage of the Revolution and some of the most sacred values of eigh-
teenth-century political culture”).
131. Wilson, Constitutional Government in the United States, 217.
132. Ibid., 207.
133. De Tocqueville, Democracy in America, 1:271. See Elmer Eric Schattschneider,
Party Government (New York: Farrar and Rinehart, 1942), 208 (“Party govern-
ment is good democratic doctrine because the parties are the special form of
political organization adapted to the mobilization of majorities. How else can
the majority get organized? If democracy means anything at all it means that the
majority has the right to organize for the purpose of taking over the government.
Party government is strong because it has behind it the great moral authority of
the majority and the force of a strong traditional belief in majority rule”).
134. Daryl J. Levinson and Richard H. Pildes, “Separation of Parties, Not Powers,”
Harvard Law Review 119 (2006): 2322–23.
135. The Political Philosophy of Robert M. La Follette as Revealed in His Speeches and
Writings, edited by Ellen Torelle (Madison: Robert M. La Follette Company,
1920) (1903), 14. See also ibid., 21–25.
136. For contemporary statements of this position, see FEC v. Colorado Republican
Federal Campaign Comm., 518 U.S. 604, 615–16 (1996) (Plurality Opinion of
Breyer, J.) (“A political party‘s independent expression not only reflects its mem-
bers‘ views about the philosophical and governmental matters that bind them
together, it also seeks to convince others to join those members in a practical
democratic task, the task of creating a government that voters can instruct and
hold responsible for subsequent success or failure.”); and 646 (Thomas, J., con-
curring in part and dissenting in part):
What could it mean for a party to “corrupt” its candidate or to

exercise “coercive” influence over him? The very aim of a political party
is to influence its candidate‘s stance on issues and, if the candidate takes
office or is reelected, his votes. When political parties achieve that aim,
that achievement does not, in my view, constitute “a subversion of the
political process.” For instance, if the Democratic Party spends large
sums of money in support of a candidate who wins, takes office, and
then implements the Party’s platform, that is not corruption; that is suc-
cessful advocacy of ideas in the political marketplace and representative
government in a party system.
137. From the perspective of representatives, the Jacksonian era marked the moment
when party discipline would become an indispensable proxy for popular
sentiment. In practice this meant that representatives became beholden not only
to their constituents, but also to their party. The dual loyalty could become espe-
cially confusing in moments when public opinion and party loyalty diverged.
And of course the responsibility of representatives to exercise their own indepen-
dent judgment had never (and could never) entirely disappear. Consider in this
regard the dilemma of poor Congressman Gayton Osgood, a Democrat from
Massachusetts:
Mr. Osgood said it was always an unpleasant task for a Representa-

tive to oppose the wishes of any portion of his constituents. Consider-
ing himself as the organ of their will, he cannot, without many painful
sensations of regret, find his own sentiments in opposition to theirs.
But the diversity of human opinion . . . must often render it necessary
for him to gratify the wishes of one part of his constituents at the risk
of displeasing the rest. Nor will he always be able to find out what the
wishes of a majority of his constituents really are. As to the general
course of his official duties, if he has openly avowed his adherence to a
political party, if he has been chosen with a knowledge on the part of his
constituents of his political predilections, he may safely conclude that
a concurrence with the measures of his party will not be obnoxious to
those who elected him. But a new state of things may arise, unexpected
events may happen, unforeseen measures may be proposed, a different
course of policy may be instituted, and the vote that sanctioned his
adherence to his party at the time of his election may fail to sustain
him in this new junction of events, and he will be compelled to resort
to some other criterion to determine the wishes of his constituents.
If . . . the measure proposed . . . rouse into opposition the adherents of
a political party, he will be liable to be led astray by the overheated exer-
tions of its opponents, and to mistake the noisy clamor of a few zealous
partisans for the real, sober, and permanent sense of the community.
And when the excitement has passed away, and the momentary passions
which created it have subsided, he will find, to his mortification and
regret, that in obeying the instructions of self-constituted conventions,
and in listening to the dictations of interested memorialists, he has over-
looked the opinions of the less obtrusive, but not the less enlightened
portion of his constituents—that he has gone contrary to the wishes,
and, what is more, to the welfare of his district.
Congressional Globe, May 5, 1834, 363–64.

138. See, for example, “Our Electoral Machinery,” North American Review 117 (1873):
In the long run, and as a general rule, parties are neither better nor
worse than the people who compose them—that is, the whole people
of the country. They arise from the fact that in no other way can move-
ments which are to end in needed laws take form, get consistency and
organization, and adapt themselves to the times, in the midst of what
would otherwise be a mere mass of individuals, with as many notions
and shades of notions as there would be minds to entertain them; and
the same law that calls parties into existence as clearly limits them ordi-
narily to two, since more destroy their value as sifting and decisive agen-
cies of public opinion. (394)
139. For a thorough overview of the development of new electoral practices and
structures during the Reconstruction era, see generally Richard Franklin Bensel,
The American Ballot Box in the Mid-Nineteenth Century (New York: Cambridge
University Press, 2004). See also Scott C. James, “Patronage Regimes and Ameri-
can Party Development from ‘the Age of Jackson’ to the Progressive Era,” British
Journal of Political Science 36 (2006): 41. After the Civil War, increased govern-
ment spending made possible ever-increasing graft. See Elisabeth S. Clemens,
The People’s Lobby: Organization Innovation and the Rise of Interest Group Politics
in the United States, 1899–1925 (Chicago: University of Chicago Press 1997),
219–20, citing Frances Cahn and Valeska Bary, Welfare Activities of Federal, State,
and Local Governments in California, 1859–1934 (Berkeley: University of Cali-
fornia Press, 1936), 175.
140. Bensel, American Ballot Box, 16–17.
141. As W. R. Ware, a prominent public intellectual of the period, noted in 1872:
The character of the political machinery everywhere in use is such

that a great amount of preliminary work is needed to set it a going—
caucusing and canvassing, pulling of wires and greasing of wheels—
a work that from its nature must needs be performed by a small knot of
experienced workmen. It is inevitable that in this state of things there
should arise political “rings,” small coteries of political managers with
every opportunity to control and direct the course of party politics to
their mutual advantage. Their injurious influence is felt both by the
public man and by the private citizen.
W. R. Ware, The Machinery of Politics and Proportional Representation, Bris-

tol Selected Pamphlets (1872), 6. In an 1873 pamphlet advocating the adoption
of proportional representation, Samuel Dana Horton, a monetary policy expert
aligned with the Republican Party and later a close adviser to President Benjamin
Harrison, acknowledged the tension between the movement role of party and
the corruption resulting from Reconstruction-era party organizations:
Party has attained among us an extraordinary activity, and while

too much stress can hardly be laid on the abuses that accompany it,
it is only hopelessly unpractical reformers who repine at its existence.
Americans are a full-grown people. They have arrived at years of discre-
tion, and they are determined to know what “measure” as well as what
“men” they are voting for, and in order to secure beyond a peradven-
ture the support of party measures, party organization is indispensible.
While, therefore, the citizen does well to show how especially liable our
present party organization is to corrupt influences, and to point out and
combat those influences, he must also admit that such organization,
even if fallen into the very worst hands, may have an indispensible claim
upon his allegiance. . . .
The radical defect in our party organization is this: It pretends to
represent party, and this pretense is all. It really needs to represent to-
day only those good and those not good men who are active in the early
stages of nomination—those officials who are recognized as party lead-
ers, and various office-holders and politicians who often by fair means,
sometimes by corrupt means, lead the rank and file. This is our impe-
rium in imperio.
S. Dana Horton, Proportional Representation, Earl Gray Pamphlets Col-

lection (1873), 17–18. Horton and others during this period hoped that the
adoption of proportional representation would better enable parties to connect
constituents to representatives—to, in Horton’s words, help voters “know what
‘measure’ as well as ‘men’ they are voting for”—while decreasing the corrupting
capacity of party organizations.
142. James Bryce, The American Commonwealth (London: Macmillan, 1888), 2:344–
45. See, for example, Richard Hofstadter, The American Political Tradition and
the Men Who Made It (New York: Vintage Books, 1954), 164–79 (Republi-
cans and Democrats “divided over spoils, not issues”). For a different view, see
Charles W. Calhoun, “Major Party Conflict in the Gilded Age: A Hundred
Years of Interpretation,” OAH Magazine of History (Summer 1999): 5–10;
Charles W. Calhoun, “Political Economy in the Gilded Age: The Republican
Party’s Industrial Policy,” Journal of Political History 8 (1996).
143. Worth Robert Miller, “The Lost World of Gilded Age Politics,” Journal of the
Gilded Age and Progressive Era 1 (2002).
144. Ronald P. Formisano, “The ‘Party Period’ Revisited,” Journal of American History
86 (1999): 94.
145. Richard McCormick, “The Party Period and Public Policy: An Exploratory
Hypothesis,” Journal of American History 66 (1979): 282.
146. Ibid., 282, 283.
147. William L. Riordan, Plunkitt of Tammany Hall: A Series of Very Plain Talks on
Very Practical Politics (New York: McClure, Phillipps, 1905), 47 (chap. 23).
148. The Tammany district leader “seeks direct contact with the people, does them
good turns when he can, and relies on their not forgetting him on election
day.” Ibid.
149. Mark Voss-Hubbard, “The ‘Third Party Tradition’ Reconsidered: Third Par-
ties and American Public Life, 1839–1900,” Journal of American History 86
(1999): 123.
150. Jay Burroughs, leader of the Nebraska Farmer’s Alliance, quoted in ibid., 130. The
platform of the Prohibition Party proclaimed in 1869 that “a lamentable evil is
the education of the people into the belief that a permanent political party is a
great good” (ibid., 123).
151. Ibid., 134.
152. Peter H. Argersinger, “No Rights on This Floor: Third Parties and the Institu-
tionalization of Congress,” Journal of Interdisciplinary History 22 (1992): 687.
153. Farmers Tribune, May 12, 1897, 3, quoting the Des Moines News.
154. Myra Peppers, “Representative Government,” Farmers Tribune, May 12, 1897, 2.
155. Mark Voss-Hubbard, “ ‘ Third Party Tradition’ Reconsidered,” 131.
156. Wiebe, Self-Rule, 134.
157. See Walter Dean Burnham, “The Changing Shape of the American Political
Universe,” American Political Science Review 59 (1965): 22–23. The old political
order “eroded away very rapidly after 1900” (23).
158. McCormick, “Party Period and Public Policy,” 295.
159. Wiebe, Self-Rule, 135–36.
160. In promoting causes such as the professional civil service and the Australian
ballot, mugwumps, typically disaffected northeastern intellectuals, characteristi-
cally condemned political parties, in the words of former Columbia president
F. A. P. Barnard, as run by “professional or ‘machine’ politicians, a pernicious
class of men who devote themselves to the control of elections as a business,
and make a systematic study and practice of the arts by which the will of the
people may be suppressed, or its expression falsified.” Barnard, “Republican

Government under the American Constitution,” Chautauquan: A Weekly News
Magazine, October 1887, 11, 13. “The consequence is that government in the
United States, whether national, state or municipal . . . has long since ceased
to be representative of the popular sovereignty; but has passed into the hands
of a comparatively small number of unscrupulous men, who employ it for the
advancement of their own personal interests, and direct their efforts both in
legislation and in administration, not for the promotion of the public welfare,
but for the maintenance of themselves in power.”
161. F. N. Judson, “The Future of Representative Government,” American Political
Science Review 2 (1908): 185.
162. A. Lawrence Lowell, Public Opinion and Popular Government (New York: Long-
mans, Green, 1914), 131.
163. Political Philosophy of La Follette, 55.
164. Ibid.
165. J. Allen Smith, The Spirit of American Government: A Study of the Constitu-
tion—Its Origin, Influence and Relation to Democracy (New York: Macmillan,
1907), 208.
166. Ibid., 209.
167. Ibid., 211.
168. Ibid., 210.
169. Ibid., 211.
170. Ibid.
171. Ibid., 216. “Political corruption, then, is a force by which a representative democ-
racy is transformed into an oligarchy, representative of special interests, and the
medium of the revolution is the party.” Lincoln Steffens, “Enemies of the Repub-
lic,” McClure’s Magazine, August 1904 (emphasis in the original).
172. Smith, Spirit of American Government, 372.
173. Ibid., 216.
174. Ibid., 371.
175. Richard L. McCormick, “The Discovery That Business Corrupts Politics:
A Reappraisal of the Origins of Progressivism,” American Historical Review
(1981): 252, 270.
176. Ibid., 265.
177. Albert Shaw, Political Problems of American Development (New York: Columbia
University Press, 1907), 149.
178. Edmund A. Ross, “Political Decay: An Interpretation,” Independent, July 19,
1906, 123, 124.
179. Ibid., 123.
180. Ibid., 124–25.
181. As Ross tells the story:
The transformation of popular government into government by

special interests presents four stages; First, ordinary “political’ legisla-
tors or officials are influenced or bought for specific purposes. This is
the era of lobby and bribe. Second, scenting “easy money: vultures . . .
sell legislation for what they can get. This is the age of boodle. Third,
financed by the Interests the party machines send up “safe” men who
will vote as they are told on bills affecting corporations. . . . This is the
epoch of blackmail and petty graft. Fourth, the Interests, falling gradu-
ally into a system cease to be customers of the bosses. They own them
and are able to grow their own legislators. This brings into politics a
more respectable type that scorns miscellaneous graft and takes his
reward in business favors or professional connections. . . . This decent
conduct of public affairs, free from the odium of grafting and blackmail,
is known as “good government,” and is the fine flower of perfected com-
mercial oligarchy. (“Political Decay: An Interpretation,” 125)
182. “As soon as public opinion began to realize that business exploitation had been
allied with political corruption, and that reformers were confronted, not by
disconnected abuses, but by a perverted system, the inevitable and salutary infer-
ence began to be drawn. Just as business exploitation was allied with political
corruption, so business reorganization must be allied with political reorganiza-
tion.” Herbert Croly, Progressive Democracy (New York: Macmillan, 1914), 10.
183. McCormick, “Discovery That Business Corrupts Politics,” 252, 268.
McCormick writes:
From 1905 to 1907 alone, fifteen new state railroad commissions

were established, and at least as many existing boards were strength-
ened. Most of the commissions were “strong” ones, having rate-setting
powers and a wide range of administrative authority to supervise ser-
vice, safety, and finance. In the years to come, many of them extended
their jurisdiction to other public utilities, including gas, electricity,
telephones, and telegraphs. . . .
The adoption of these measures marked the moment of transition
from a structure of economic policy based largely on the allocation of
resources and benefits to one in which regulation and administration
played permanent and significant roles. (268)
184. Woodrow Wilson, “The Study of Administration,” Political Science Quarterly

2 (1887).
185. Ibid., 210. “Self-government,” Wilson wrote, does not consist in having a hand in
everything, any more than housekeeping consists necessarily in cooking dinner
with one’s own hands. The cook must be trusted with a large discretion as to the
management of the fires and the ovens” (214).
186. The story of the federal statute, 34 Stat. 864, is told in United States v. Interna-
tional Union United Automobile, Aircraft and Agricultural Implement Workers of
America, 352, U.S. 567, 579–76 (1957). More generally, “Many states passed law
explicitly designed to curtail illicit business influence in politics. These included
measures regulating legislative lobbying, prohibiting corporate campaign con-
tributions, and outlawing the acceptance of free transportation passes by public
officials.” McCormick, “Discovery That Business Corrupts Politics,” 266.
187. Elihu Root, Addresses on Government and Citizenship, edited by Robert Bacon
and James Brown Scott (Cambridge, MA: Harvard University Press, 1916), 144.
188. Ibid., 141.
189. Theodore Roosevelt, The New Nationalism (New York: Outlook, 1910),
13–14, 29–30.
190. “The special interests must, of course, guard their means of control, and hence
they are adamant against the merit system, direct primary, referendum, ballot
reform, anti-pass regulation, corrupt practices act and the like ‘fads’ tending
to strengthen the people.” Ross, “Political Decay: An Interpretation,” 125. The
Progressive Era was well known for developing “regular means . . . for newer
interest groups to participate in government,” thus bypassing party government

(McCormick, “Discovery That Business Corrupts Politics,” 258).
191. George H. Haynes, The Election of Senators (New York: Henry Holt, 1906),
166–67 (“Democracy is certainly an illusion unless it works out for itself a gov-
ernment which is, in some genuine fashion, responsible to the people.” But a
senator elected by a state legislature “almost inevitably . . . renounces any attempt
to keep in sensitive touch with the people. It is not to them that he standeth or
falleth. He feels that he must put his political faith in some power that abides;
and hence he turns to the ‘organization’ and relies upon that to secure from him
his reëlection as the reward for his subservience”).
192. McCormick, “Discovery That Business Corrupts Politics,” 266–67.
193. Political Philosophy of La Follette, 28.
194. Ibid., 30, 33, 40. “Great corporations, such as the railways, would not then be able
to rule, as they do now, by controlling the springs and sources of power—the
primary party meeting and the party convention.” Nathan Cree, Direct Legisla-
tion by the People (Chicago: A. C. McClurg, 1892), 140.
195. Walter E. Weyl, The New Democracy (New York: Macmillan, 1919), 300.
196. Ellis Paxson Oberholtzer, The Referendum in America (New York: Charles Scrib-
ner’s Sons, 1900), 392–96.
197. Root, Addresses on Government and Citizenship, 269.
198. Ibid.
199. “Under party government all representation is party representation, and its con-
stitution rests with those who control those first or primary meetings of the par-
ties which are the real springs and sources of power.” Cree, Direct Legislation by
the People, 71. See Judson, “Future of Representative Government,” 195–97. For
a superb discussion of the Progressive antiypartyism and its various institutional
manifestations, see Nancy L. Rosenblum, On the Side of the Angels: An Appre-
ciation of Parties and Partisanship (Princeton, NJ: Princeton University Press,
2008), 165–209.
200. Cree, Direct Legislation by the People, 16.
201. Weyl, The New Democracy, 298–310.
202. Richard Hofstadter, The Age of Reform (New York: Alfred A. Knopf, 1955), 18.
203. Judson, “Future of Representative Government,” 194.
204. De Tocqueville, Democracy in America, 2:752. De Tocqueville also saw that
“when the right of every citizen to co-operate in the government of society is
acknowledged, every citizen must be presumed to possess the power of discrimi-
nating between the different opinions of his contemporaries, and of appreciating
the different facts from which inferences may be drawn. The sovereignty of the
people and the liberty of the press may therefore be looked upon as correlative
institutions; just as the censorship of the press and universal suffrage are two
things which are irreconcilably opposed, and which can not long be retained
among the institutions of the same people.” De Tocqueville, Democracy in
America, 1:187.
205. James Bryce, The American Commonwealth (London: Macmillan, 1888), 3:3.
“We talk of public opinion as a new force in the world,” Bryce writes, “con-
spicuous only since governments began to be popular. Statesmen, even in the
last generation, looked on it with some distrust or dislike. Sir Robert Peel, for
instance, in a letter written in 1820, speaks with the air of a discoverer, of ‘that
great compound of folly, weakness, prejudice, wrong feeling, right feeling, obsti-
nacy, and newspaper paragraphs, which is called public opinion’ ” (14).
206. Ibid., 24.
207. Ibid., 27.
208. “The obvious weakness of government by opinion is the difficulty of ascertaining
it” (144).
209. Ibid., 47. See V. O. Key Jr., Public Opinion and American Democracy (New York:
Alfred A. Knopf, 1961), 17.
210. Bryce, The American Commonwealth, 3:159. With remarkable foresight, Bryce
seems to have anticipated the advent of modern polling, speculating about
what would happen “if the will of the majority of the citizens were to become
ascertainable at all times, and without the need of its passing through a body
of representatives, possibly even without the need of voting machinery at all.
In such a state of things the sway of public opinion would have become more
complete. . . . Popular government would have been pushed so far as almost to
dispense with, or at any rate to anticipate, the legal modes in which the major-
ity speaks its will at the polling booths; and this informal but direct control of
the multitude would dwarf, if it did not superseded, the importance of those
formal but occasional deliverances made at the elections of representatives”
(19). For an explanation of how polling began to shape public discourse and
the concept of the American “public” by the 1940s, see Sarah Igo, The Averaged
American: Surveys, Citizens, and the Making of the Mass Public (Cambridge,
MA: Harvard University Press, 2008), 168–80, 282. For an exploration of the
constitutional consequences of modern public opinion polling, see Or Bassok,
“The Two Countermajoritarian Difficulties,” St. Louis University Public Law
Review 31 (2012).
211. Ibid. In Great Britain, Goldwin Smith was simultaneously making an analogous
observation: “Parliaments are losing much of their importance, because the real
deliberation is being transferred from them to the press and the general organs
of discussion by which the great questions are virtually decided, parliamentary
speeches being little more than reproductions of arguments already used outside
the House, and parliamentary divisions little more than registrations of public
opinion. It is not easy to say how far, with the spread of public education, this
process may go, or what value the parliamentary debate and division list will
in the end retain.” Goldwin Smith, “The Machinery of Elective Government,”
Popular Science Monthly 20 (1882): 629–30.
212. Bryce, The American Commonwealth, 3:160.
213. Ibid., 161.
214. John Dewey, The Public and Its Problems (New York: Henry Holt, 1927).
215. Mary Parker Follett, The New State: Group Organization the Solution of Popular
Government (New York: Longmans, Green, 1926).
216. Follett did stress that “the vote in itself does not give us democracy” (ibid., 179).
“The ballot-box . . . creates nothing—it merely registers what is already cre-
ated. . . . The essence of democracy is an educated and responsible citizenship
evolving common ideas and willing its own social life” (180).
217. Croly, Progressive Democracy, 228.
218. Ibid., 228–29.
219. Ibid., 229. “It would be absurd to attach the prerogatives of sovereignty to the
electorate, although the absurdity of so doing does not prevent many progres-
sives from doing it” (227). See, for example, Robert H. Fuller, Government by
the People (New York: Macmillan, 1908), 1 (“In the government of the United
States sovereignty is divided equally among the qualified voters and it is exercised
by a plurality of those who vote”).
220. Ibid., 264.
221. Root, Addresses on Government and Citizenship, 39.

223. Ibid., 265.
224. Ibid., 267.
225. Ibid., 283.
226. Ibid., 281.
227. Ibid., 283.
228. Ibid.
229. Ibid., 272. Croly forcefully opposed those who sought “to hinder the unre-
strained movement of the popular will . . . by praise of the virtues of represen-
tative government.” Herbert Croly, “State Political Reorganization,” American
Political Science Review 6 (supplement: “Proceedings of the American Political
Science Association at Its Eight Annual Meeting”) (Feb. 1912): 126.
231. Ibid.
232. Ibid., 131. Croly spoke of the executive’s “inevitable responsibilities to public
opinion” (132). He also believed that “the value of executive leadership consists
in its peculiar serviceability not merely as the agent of prevailing public opinion,
but also as the invigorator and concentrator of such opinion” (304).
233. Ibid., 132. On the radical increase in executive power contemplated by Croly, see
ibid., 303.
234. The Progressive solution to the problem of representative integrity might be
thought to depend upon the weakness of parties as a medium for political iden-
tification. The appeal to public opinion as a solution to representative integrity
is thus connected to the phenomenon of independent voters, with its atten-
dant “elevation of the individual, educated, rational voter as the model citizen.”
Michael Schudson, “Politics as Cultural Practice,” Political Communication 18
(2001): 427. Schudson writes that “the model of the informed citizen” separates
us “dramatically from the politics of most other democratic systems in the world
where an anti-party reformation did not take place. . . . As the Progressives aban-
doned politics for science, party for city manager, parades for pamphlets, streets
for parlors . . . , so we have accepted an ideal of citizenship at once privatized,
effortful, cerebral, not much fun. Citizenship became spinach, if you will, dis-
tasteful but good for you” (429). See also Michael Schudson, The Good Citizen:
A History of American Civic Life (New York: Martin Kessler Books, 1998).
The rise of independent voters has been a long-term secular trend. See
Larry M. Bartels, “Electoral Continuity and Change, 1868–1996,” Electoral
Studies 17 (1998): 307 (conducting an empirical study and concluding that “the
persistence of partisan loyalties appears to have declined throughout the first half
of the 20th century from the very high level of the Gilded Age”); and Thomas R.
Pegram, Partisans and Progressives: Private Interest and Public Policy in Illinois,
1879–1922 (Urbana: University of Illinois Press, 1992), 155–58 (noting that during
the Progressive Era candidates began designing campaigns to appeal to uncom-
mitted voters). This trend continues through the present day. By 1952, roughly a
quarter of the population identified as independent. See Russell J. Dalton, The
Apartisan American: Dealignment and Changing Electoral Politics (Thousand
Oaks, CA: CQ Press, 2013), 17–21 (noting that reliable data about partisan
affiliation became available only in the middle of the twentieth century, when
Gallup and the American National Election Survey [ANES] began asking vot-
ers about their partisan affiliations). This percentage held steady or increased
throughout the second half of the twentieth century (17–21), reaching a high of
40 percent in 2011 and 2012. Jeffrey M. Jones, “In U.S., Democrats Re-establish

Lead in Party Identification, Gallup,” January 9, 2013, http://www.gallup.com/
poll/159740/democrats-establish-lead-party-affiliation.aspx (noting that Gallup’s
asks: “In politics today, do you consider yourself a Republican, a Democrat, or an
independent?”). See also Dalton, Apartisan American, 181 (noting that as of 2008
roughly 40 percent of Americans lacked a partisan identification). The percentage
of the population identifying as independent was 40 percent or greater in thirty-
two of sixty-five Gallup polls conducted between January 2010 and March 2013
and never fell below 33 percent during that period. “Party Affiliation,” March 11,
2013, http://www.gallup.com/poll/15370/party-affiliation.aspx.
While some political scientists argue that independents are really partisans
in disguise and, as a result, that the “decline of parties” hypothesis is overstated,
see, for example, Larry M. Bartels, “Partisanship and Voting Behavior, 1952–
1996,” American Journal of Political Science 44 (2000): 44, which maintains that
independents may generally vote for candidates of a particular party without
feeling any strong allegiance to that party. Studies suggest that independents
who report a lean toward one party or the other are significantly more likely
than even self-described “weak” partisans to switch their partisan preference or
to begin affiliating as pure independents. Dalton, Apartisan American, 22–23.
Although empirical studies suggest that the major parties have become more
polarized over the past thirty years at the elite level (particularly in government),
see Marc J. Hetherington, “Review Article: Putting Polarization in Perspective,”
British Journal of Political Science 39, no. 2 (2009): 415–19 (surveying empirical
studies of elite polarization and concluding that “little doubt remains that elites
are polarized today”), empirical studies have failed to find similar polarization in
the general populace. See ibid., 431–36; Morris P. Fiorina and Samuel J. Abrams,
“Political Polarization in the American Public,” Annual Review of Political Sci-
ence 11 (2008): 584 (surveying empirical studies of mass polarization and con-
cluding that “the American public as a whole is no more polarized today than
it was a generation ago”). As a result, moderate and independent voters may
increasingly view the party they favor as the lesser of two evils, especially if par-
ties serve elite interests rather than the interests of the general population. See
Kathleen Bawn et al., “A Theory of Political Parties: Groups, Policy Demands
and Nominations in American Politics,” Perspectives on Politics 10 (2012): 571.
Thus, even if partisan identification functions for some people as a component
of individual identity, see, for example, Donald Green et al., Partisan Hearts and
Minds: Political Parties and the Social Identities of Voters (New Haven, CT: Yale
University Press, 2002), 78, independent voters may resist the socializing pull
of partisan identity, perhaps generally voting for members of a party without
allowing that party to determine what they believe or how they view themselves
in relation to others.
235. Consider:
Analysts report that for the electorate as a whole, parties are less
objects of dissatisfaction than insignificant. “The parties are currently
perceived with almost complete indifference by a large proportion of
the population.” . . . Voters see parties as irrelevant for solving prob-
lems and inconsequential for government outcomes. Roughly one-
third of voters prefer that “candidates run as individuals without party
labels.” . . . In surveys, fewer than 10 percent of respondents disagree
with the statement “The best rule in voting is to pick the best candidate,
regardless of party label.”
Rosenblum, On the Side of the Angels, 326–28. See ibid., 524n16 (“Polling in
the United States indicates that only a bare majority of respondents, 53%, feels
well represented by the two major parties”).
236. Judson, “Future of Representative Government,” 194–95. “The sober advocate
of the referendum no longer claims that it will be a substitute for representative
government, but that it will furnish an additional and needed restraint upon our
legislative bodies. . . . In a great political crisis it may represent the sovereign will
of the people, but its warmest friends must admit that it is not and cannot be a
means of working out the necessary details of legislation.”
237. See text at notes 208–9. Bryce said of public opinion, “It rules as a pervading
and impalpable power, like the ether which, as physicists say, passes through all
things” (The American Commonwealth, 3:30). See also Adrian Vermeule, “ ‘Gov-
ernment by Public Opinion’: Bryce’s Theory of the Constitution, http://papers
.ssrn.com/sol3/papers.cfm?abstract_id=1809794.
238. For a discussion of democratic legitimation, see Robert Post, Democracy, Exper-
tise, Academic Freedom: A First Amendment Jurisprudence for the Modern State
(New Haven, CT: Yale University Press, 2012).
239. See Shaun Bowler and Todd Donovan, Demanding Choices: Opinion, Voting,
and Direct Democracy (Ann Arbor: University of Michigan Press, 2000), 4–5.
240. Weyl, The New Democracy, 310.
241. Thus, Weyl could write that “although men are crying that representative govern-
ment is dead and that the occupation of the legislator is gone, the fundamental
issue in America is in reality not between representative and direct government
(both of which systems have merits, inconveniences, and perils), but between
a misrepresentative, plutocratic government and a democratic government,
whether representative, direct, or mixed” (The New Democracy, 308).
242. See text at note 218.
243. The story is well told in David M. Rabban, “Free Speech in Progressive Social
Thought,” Texas Law Review 74 (1996).
244. Key, Public Opinion and American Democracy, 538–39 (“If an elite is not to
monopolize power and thereby to bring an end to democratic practices, its rules
of the game must include restraints in the exploitation of public opinion. . . .
A body of customs that amounts to a policy of ‘live and let live’ must prevail.
In constitutional democracies some of these rules are crystalized into fundamen-
tal law in guarantees such as those of freedom of speech, freedom of press, and
the right to appeal to the electorate for power”).
245. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory
of Law and Democracy, translated by William Rehg (Cambridge: MIT Press,
1996), 486.
246. Ibid.
247. Bernard Manin, Elly Stein, and Jane Mansbridge, “On Legitimacy and Political
Deliberation,” Political Theory 15 (1987): 352.
248. Ibid.
249. Rabban, “Free Speech in Progressive Social Thought.” See Key, Public Opinion
and American Democracy, 4–5: “Democratic hopes and expectations reached a
great peak in the United States in the years before World War I, when the doughty
Progressives fought their battles against privilege and preached the righteousness
of the popular will. To see that the popular will prevailed, they contrived no end
of means to involve the people in the process of government. . . . The courts,

regarded as the sturdiest bastion of the special interest, were to be subjected to
the humiliation of a popular review of their constitutional decisions.”
250. See Christopher Capozzola, Uncle Sam Wants You: World War I and the Mak-
ing of the Modern American Citizen (Oxford: Oxford University Press, 2008),
144–73; David M. Kennedy, Over Here: The First World War and American
Society (New York: Oxford University Press, 1980), 75–92. The Espionage Act
of 1917 and its 1918 amendments, which were known informally as the Sedition
Act, made it a crime to “utter, print, write or publish any disloyal, profane, scur-
rilous, or abusive language about the form of government of the United States,
or the Constitution of the United States, or the military or naval forces of the
United States, or the flag . . . or the uniform of the Army or Navy of the United
States, or any language intended to bring the form of government . . . or the
Constitution . . . or the military or naval forces . . . or the flag . . . of the United
States into contempt, scorn, contumely, or disrepute.” Sedition Act of 1918,
40 Stat. 553. See also Espionage Act of 1917, 40 Stat. 217 (proscribing “mak[ing]
or convey[ing] false reports or false statements” with intent to undermine the
ability of the United States military to prevail in war); and Geoffrey R. Stone,
“Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled,”
University of Chicago Law Review 70 (2003): 356n95 (“The purpose of the 1918
Act was quite clearly to broaden and strengthen the prohibitions of the Espio-
nage Act. A year of war, with all of its casualties, had significantly changed the
mood of the country and the Congress. Whatever tolerance may have existed for
dissent in 1917 was largely dissipated after a year of brutal conflict and unrelent-
ing government-sponsored anti-German propaganda”).
The first great scholarly treatment of freedom of speech was Zechariah
Chafee, Freedom of Speech (New York: Harcourt, Brace, and Howe, 1920), who
made plain enough at the outset what motivated his work:
Never in the history of our country, since the Alien and Sedition
Laws of 1798, has the meaning of free speech been the subject of such
sharp controversy as to-day. Over nineteen hundred prosecutions and
other judicial proceedings during the war, involving speeches, newspa-
per articles, pamphlets, and books, have been followed since the armi-
stice by a widespread legislative consideration of bills punishing the
advocacy of extreme radicalism. It is becoming increasingly important
to determine the true limits of freedom of expression, so that speakers
and writers may know how much they can properly say, and govern-
ments may be sure how much they can lawfully and wisely suppress. (1)
In correspondence with Chafee, Alfred Bettman, who as special assistant

attorney general under President Wilson was responsible for Espionage Act
prosecutions, stressed similar themes. See David M. Rabban, “The Emergence
of Modern First Amendment Doctrine,” University of Chicago Law Review
50 (1983): 1292 (quoting letter from Alfred Bettman to Zechariah Chafee Jr.,
October 27, 1919, Zechariah Chafee Jr. Papers, Box 14, Folder 3, Harvard Law
School Library) (“Bettman believed that the constitutional guarantee of free
speech should ‘unquestionably’ prevent any legislative attempt ‘to suppress the
absolutely free discussion of past, present and future governmental policies’ and
officials, and admitted that many Espionage Act convictions violated this con-
ception of the first amendment. He criticized federal judges in some of these
cases for having ‘lost their heads,’ for giving ‘unfair charges,’ and for not exercising
sufficient ‘control over the juries.’ He hoped that in at least one of the Espionage
Act cases still pending the Supreme Court would hand down a decision that
‘will assist the Department of Justice during the next war in counteracting the
pressure of public intolerance’ ”).
251. In the words of the editor of the New York World Frank I. Cobb:
For five years there has been no free play of public opinion in
the world.
Confronted by the inexorable necessities of war, Governments
conscripted public opinion as the conscripted men and money and
materials.
Having conscripted it, they dealt with it as they dealt with other
raw recruits. They mobilized it. They put it in charge of drill sergeants.
They goose-stepped it. They taught it to stand at attention and salute.
This governmental control over public opinion was exerted
through two different channels—one the censorship and the other pro-
paganda. . . . As the war progressed the censorship became less and less
a factor, and propaganda increased in importance. . . . Governments
relied on propaganda to equip and sustain their armies, to raise money,
to furnish food and munitions, and to perform all those services with-
out which armies would be vain and helpless. The organized manipu-
lation of public opinion was as inevitable a development of modern
warfare as airplanes, tanks, and barbed-wire entanglements.
Frank I. Cobb, Public Opinion, Senate Document No. 175, 69th Cong., 2nd
sess. ( January 10, 1920), 3–4. Cobb’s perspective should be contrasted Edward
Bernays, who in his 1928 book, Propaganda, recognized and celebrated the
power of government to manipulate public opinion:
The politician] sends up his trial balloon. He may send out an anon-
ymous interview through the press. He then waits for reverberations to
come from the public—a public which represents itself in mass meet-
ings, or resolutions, or telegrams, or even such obvious manifestations
as editorials in the partisan or nonpartisan press. On the basis of these
repercussions he then publicly adopts his originally tentative policy,
or rejects it, or modifies it to conform to the sum of public opinion
which has reached him. . . .
[This] is a method which has little justification. If a politician is a
real leader, he will be able, by the skillful use of propaganda, to lead the
people, instead of following the people by means of the clumsy instru-
ment of trial and error.
The propagandist’s approach is the exact opposite of that of the
politician just described. The whole basis of propaganda is to have an
objective and then to endeavor to arrive at it through an exact knowl-
edge of the public and modifying circumstances to manipulate and
sway that public.
Edward Bernays, Propaganda (New York: H. Liveright, 1928), 125–26.

Of course, the period around the First World War also coincided with the
beginning of mass consumer private advertising, spearheaded by none other

than Edward Bernays.
252. Cobb, Public Opinion, 6.
253. Ibid., 6–8. On the linkage of First Amendment rights to self-g overnments,
Cobb writes:
Either the people are fit to govern or they are not. If they are fit to
govern it is no function of government to protect them from any kind
of propaganda. They will protect themselves. That capacity for self-
protection is the very essence of self-government. Without it popular
institutions are inconceivable, and the moment that a republican form
of government sets itself up as the nursemaid of the people to train their
immature minds to suit its own purposes and to guard them from all
influences that it considers contaminating, we already have a revolution
and a revolution backward, a revolution by usurpation. (Ibid.)
As early as October 1917 Herbert Croly had written to President Wilson

to protest “the censorship over public opinion” in which the administration
was engaged. Croly to Wilson, October 19, 1917, in The Papers of Woodrow Wil-
son, edited by Arthur S. Link (Princeton, NJ: Princeton University Press, 1983),
44:408. After the war, Croly explicitly recognized the necessity of constitutional
protections for the communicative rights that constitute public opinion. In 1919
he wrote an article in the New Republic to praise Holmes’s dissent in Abrams v.
United States, 250 U.S. 616, 624 (1919), which had specifically and for the first
time acknowledged that First Amendment rights should be used to invalidate
government action. Croly wrote:
Democracy is capable of curing the ills it generates by means of

peaceful discussion and unhesitating acquiescence in the verdict of hon-
estly conducted elections but its self-curative properties are not uncon-
ditional. They are the creation of a body of public opinion which has
access to the facts, which can estimate their credibility and significance
and which is in effective measure open to conviction. The most articular
public opinion in America is temporarily indifferent to the facts and
impervious to conviction. . . . American educators and lawyers no longer
act as if the government and Constitution of the United States is, as Jus-
tice Holmes says, an experiment which needs for its own safety an agency
of self-adjustment and which seeks it in the utmost possible freedom of
opinion. They act as good Catholics formerly acted in relation to the
government and the creed of the Catholic Church—as if the govern-
ment and Constitution were the embodiment of ultimate political and
social truth, which is to be perpetuated by persecuting and exterminating
its enemies rather than by vindicating its own qualifications to carry on
under new conditions the difficult job of supplying political salvation
to mankind. If they begin by the sacrificing freedom of speech to what
is supposed to be the safety of constitutional government they will end
by sacrificing constitutional government to the dictatorship of one class.
Herbert Croly, “The Call to Toleration,” New Republic, November 26, 1919,

362. On Croly’s authorship, see Rabban, “Free Speech in Progressive Social
Thought,” at 1014–15.
Noting that freedom of expression should be nearly absolute in a function-

ing democracy, Judge Learned Hand, in a letter to Chafee, argued in favor of
using constitutional rights to protect freedom of expression against the types of
abuses Croly lamented:
I prefer a test based upon the nature of the utterance itself. If, taken
in its setting, the effect upon the hearers is only to counsel them to
violate the law, it is unconditionally illegal. . . .
As to other utterances, it appears to me that regardless of their
tendency they should be permitted. The reason is that any State which
professes to be controlled by public opinion, cannot take sides against
any opinion except that which must express itself in the violation of
law. On the contrary, it must regard all other expression of opinion as
tolerable, if not good. . . .
Nothing short of counsel to violate law should be itself illegal. . . .
Therefore, to be a real protection to the expression of egregious
opinion in times of excitement, I own I cannot see any escape from
construing the privilege as absolute, so long as the utterance, objectively
regarded, can by any fair construction be held to fall short of counsel-
ling violence.
Learned Hand to Zechariah Chafee Jr., January 8, 1920, Chafee Papers,

Box 4, Folder 20, Harvard Law Library, Treasure Room (reprinted in Gerald
Gunther, “Learned Hand and the Origins of Modern First Amendment Doc-
trine: Some Fragments of History,” Stanford Law Review 27 [1975]: 764–66).
254. John Dewey and James H. Tufts, Ethics, rev. ed. (New York: Henry Holt, 1936),
398. Dewey and Tufts explained that freedom of speech “is central because the
essence of the democratic principle is appeal to voluntary disposition instead
of to force, to persuasion instead of coercion. Ultimate authority is to reside in
the needs and aims of individuals as these are enlightened by a circulation of
knowledge, which in turn is to be achieved by free communication, conference,
discussion. . . . The idea [of freedom of speech] is implicit in our Constitution
because whatever interferes with the free circulation of knowledge and opinions
is adverse to the efficient working of democratic institutions” (398–99). On the
shift in Dewey’s position in the years after World War I, see Rabban, “Free
Speech in Progressive Social Thought,” 1021–26. For a discussion of the shift of
another key Progressive, John Lord O’Brien, see Paul L. Murphy, The Meaning
of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (Westport,
CT: Greenwood, 1972), 97–98 (noting that O’Brien was one of many Progres-
sives who, during and after World War I, “realized that the state could be an
instrument for evil as well as good” and as a result “suddenly entered the fray in
defense of free expression”).
255. For the story, see David M. Rabban, Free Speech in Its Forgotten Years (Cam-
bridge: Cambridge University Press, 1997).
256. See, for example, Michael Curtis, Free Speech, “the People’s Darling Privilege”:
Struggles for Freedom of Expression in American History (Durham, NC: Duke
University Press, 2000); and Charles Beard, “The Great American Tradition:
A Challenge for the Fourth of July,” Nation, July 7, 1926, 7.
257. David Rabban, “The First Amendment in Its Forgotten Years,” Yale Law Journal
90 (1981): 523. I should note that in the prewar years, at least two state supreme
courts used state freedom of speech guarantees to invalidate Progressive campaign
regulations. See Wisconsin v. Pierce, 163 Wisc. 615 (1916) (striking down Wis-
consin restrictions on third-party campaign expenditures); and Nebraska es rel.
Ragan v. Junkin, 85 Neb. 1 (1909) (striking down direct primary).
258. Patterson v. Colorado, 205 U.S. 454, 462 (1907) (per Holmes, J.). See Timothy
Walker, Introduction to American Law 188–89 (Philadelphia: P. H. Nicklin and
T. Johnson, Law Booksellers, 1837) (“The doctrine then is, that the liberty of
speech and of the press consists in freedom from previous censorship or restraint,
and not in exemption from subsequent liability for the injury which may thereby
be done”); Joseph Story, Commentaries on the Constitution of the United States
3:731–46 (Boston: Hilliard, Gray, 1833); Theophilus Parsons, The Personal and
Property Rights of a Citizen of the United States (Hartford, CT: S. S. Scranton,
1877), 185–86; and Christopher G. Tiedeman, A Treatise on the Limitations of
Police Power in the United States (St. Louis: F. H. Thomas Law Book, 1886),
189–93. A notable dissenter from this consensus was Thomas M. Cooley, A Trea-
tise on the Constitutional Limitations, 3rd ed. (Boston: Little, Brown, 1874),
429–21. Chafee, Freedom of Speech, would subsequently emphasize Cooley’s dis-
sent in order to reconstruct a history of First Amendment “rights” in the United
States. For an illuminating discussion of Cooley and the largely lost tradition of
conservative libertarianism, see Mark A. Graber, Transforming Free Speech: The
Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California
Press, 1991).
259. Samuel Freeman Miller, Lectures on the Constitution of the United States
(New York: Albany, Banks, and Brothers, 1893), 645.
260. Abrams v. United States, 250 U.S. 616, 624 (1919). For a discussion of the con-
stitutional innovations of Abrams, see Robert Post, “Reconciling Theory and
Doctrine in First Amendment Jurisprudence,” California Law Review 88,
no. 6 (2000).
261. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
262. See Vince Blasi, “Propter Honores Respectum: Reading Holmes through the Lens
of Schauer—t he Abrams Dissent,” Notre Dame Law Review 72 (1997): 1349, 1351.
We know that Holmes’s epistemological perspective was associated with that of
Charles Peirce, who was quite explicit that a free market in ideas was no way at
all to determine scientific truth:
Some persons fancy that bias and counter-bias are favorable to the
extraction of truth—that hot and partisan debate is the way to investi-
gate. This is the theory of our atrocious legal procedure. But Logic puts
its heel upon this suggestion. It irrefragably demonstrates that knowl-
edge can only be furthered by the real desire for it, and that the methods
of obstinacy, of authority, and every mode of trying to reach a foregone
conclusion, are absolutely of no value. These things are proved. The
reader is at liberty to think so or not as long as the proof is not set forth,
or as long as he refrains from examining it. Just so, he can preserve, if he
likes, his freedom of opinion in regard to the propositions of geometry;
only, in that case, if he takes a fancy to read Euclid, he will do well to
skip whatever he finds with A, B, C, etc., for, if he reads attentively that
disagreeable matter, the freedom of his opinion about geometry may
unhappily be lost forever.
Charles Sanders Peirce, Collected Papers, edited by Charles Hartshorne, Paul

Weiss, and Arthur Burks (Cambridge, MA: Harvard University Press, 1931–58),
2:635. On the connection between Holmes and Peirce, see “Holmes, Peirce and
Legal Pragmatism,” 84 Yale Law Journal (1975).
263. Gilbert v. Minnesota, 254 U.S. 355, 357–58 (1920) (Brandeis, J., dissenting). Before
Brandeis, of course, there was the great opinion of Learned Hand in Masses
Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), which concerned wartime
censorship and verged on explaining judicially enforceable First Amendment
rights as necessary to protect the formation of “that public opinion which is
the final source of government in a democratic state.” See James Weinstein, “The
Story of Masses Publishing Co. v. Patten: Judge Learned Hand, First Amendment
Prophet,” in First Amendment Stories, edited by Richard W. Garnett and Andrew
Koppelman (New York: Foundation Press, 2011).
264. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
265. Ibid. at 375. Compare Edward Everett Hale in 1889:
In truth . . . the business of voting is only a small part of the duty of

a good citizen in a Republic. . . . The people we choose at elections are
the people’s servants in a very pathetic sense. This is no statement of a
demagogue; it is the simple statement of the truth that public opinion
governs the country. . . .
The business of the citizen, then, consists very largely in what he can
do in the right moulding of public opinion. This he does all the time;
in the street-cars he may do it; he may do it in waltzing in the german;
he may do it in his pew at church; he may do it as he talks with the
foreman in the mill. The public opinion of the country is improved in
proportion as he does it, and the country is the better governed. And
the really valuable magistrates and officers in this Republic are, invari-
ably, men who are in close connection with all sorts of people, who have
that delicate touch by which they find out what the people means to
have done, and then, with promptness and willingness, do it.
Edward Everett Hale, “The Tree of Political Knowledge,” North American

Review 148 (1889): 566–67.
266. 283 U.S. 359, 369 (1931).
267. Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). “Political speech is the primary
object of First amendment protection.” Nixon v. Shrink Missouri Government,
528 U.S. 377, 410 (2000) (Thomas, J., dissenting).
268. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
269. Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hard-
ware Co., 458 U.S. 886, 913 (1982).
270. Buckley v. Valeo, 424 U.S. at 14.
271. Post, Democracy, Expertise, Academic Freedom.
272. Knox v. Service Employees Intern. Union, Local 1000, 132 S.Ct. 2277, 2288 (2012).
273. Brown v. Hartlage, 456 U.S. 45, 60 (1982).
274. Habermas, Between Facts and Norms, 486.
275. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality
(New York: Basic Books, 1983), 310.
276. Clemens, People’s Lobby.
277. Schattschneider, Party Government, 107–9 (“American politics is remarkable
for the exaggerated role played by pressure groups. . . . The executive agencies
cannot resist pressures if Congress will not support them. Congress in its turn
is prodigal in is concessions to organized minorities because the parties are too
decentralized to impose an effective discipline on their congressional repre-

sentation”). For reasons analogous to those of J. Allen Smith, Schattschneider
concluded that the American Constitution has “made impossible the rise of
responsible cabinet government and all that a responsible cabinet system might
mean in terms of party government” (126). “If the tendency of the system of
separation of powers to frustrate central party control were not sufficient to
disorganize the parties, the federal system would complete the task” (128).
278. Arthur F. Bentley, The Process of Government: A Study of Social Pressures (Chi-
cago: University of Chicago Press, 1908), 210.
279. Clemens, People’s Lobby, 329–21.
280. See, for example, Issacharoff, “Constitutional Logic of Campaign Finance
Regulation,” 383–88. On the weakness of the American political system, see
Paul S. Edwards, “Madisonian Democracy and Issue Advocacy: An Argument
for Deregulating,” Catholic University Law Review 50 (2000): 61 (“Despite the
emerging consensus that healthy, competitive parties are an essential, intermedi-
ating institution in modern democracies, American political parties are relatively
weak”); Paul L. McKaskle, “Of Wasted Votes and No Influence: An Essay on
Voting Systems in the United States,” Houston Law Review 35 (1998): 1131–32
(“Party organizations can be divided into two types. The first type, such as exists
in the United States, . . . are very weak . . . in that their leadership has little for-
mal control over the party’s membership or candidates. . . . Moreover, there is no
formal ability to discipline those elected under the party banner for voting con-
trary to the wishes of the party”); Terri Peretti, “The Virtues of ‘Value Clarity’
in Constitutional Decisionmaking,” Ohio State Law Journal 55 (1994): 1099–91
(“United States political institutions are not well-designed or structured so as
to ascertain and respond to majority desires effectively. Political parties in the
United States, for example, have traditionally been weak and highly decentral-
ized organizations . . . [and thus] have only a limited capacity for organizing that
morass of preferences into coherent and comprehensive policy packages and for
enforcing adherence to that platform by all of the party’s candidates”). For one
explanation of this fact, see Jeff Bowen and Susan Rose-Ackerman, “Partisan
Politics and Executive Accountability: Argentina in Comparative Perspective,”
Superior Court Economic Review 10 (2003): 195 (“Political parties are likely to
be relatively weak in presidential systems because they are not required to form
the government. For example, in a weak party system, such as the United States,
legislative majorities are frequently cobbled together across party lines”).
LECTURE II.
CAMPAIGN FINANCE REFORM AND
THE FIRST AMENDMENT
In Citizens United v. FEC,1 the Supreme Court, by a bitterly divided vote of
five to four, struck down long-standing federal regulation of independent
corporate campaign expenditures. Due to its extraordinarily broad ratio-
nale, the decision sent shock waves through the world of campaign finance
regulation, as well as through First Amendment jurisprudence generally.
At stake in Citizens United is the nature of the state’s authority to
regulate campaign finances. The Court in Citizens United is explicit that
the First Amendment is implicated in campaign finance reform because
“speech is an essential mechanism of democracy, for it is the means to hold
officials accountable to the people. . . . The right of citizens to inquire,
to hear, to speak, and to use information to reach consensus is a precondi-
tion to enlightened self-government and a necessary means to protect it.”
The First Amendment therefore “ ‘has its fullest and most urgent applica-
tion’ to speech uttered during a campaign for political office.’ ”2
Citizens United squarely imagines the First Amendment as protecting
the value of what in the first lecture I called discursive democracy. The con-
stitutional challenge of the case is how this value may be reconciled with
the requirements of representative government, which campaign finance
regulations seek to serve.
Constitutional restraints enforced by nondemocratically accountable
courts are always serious business in a free country. The application of con-
stitutional rights must be carefully tailored to their underlying purposes.
The need for such intellectual discipline is especially acute in the context
of the First Amendment.
By its terms, the First Amendment protects “the freedom of speech,”
and human interaction everywhere characteristically occurs through the
medium of communication. “We are men,” Montaigne writes, “and we
have relations with one another only by speech.”3 On their face, there-
fore, First Amendment rights can potentially govern almost all human
transactions.
Were First Amendment rights to be indiscriminately applied in a man-
ner not tailored to their underlying purpose, they could potentially consti-
tutionalize vast stretches of social life. They could become an irrepressible
engine of judicial control, wresting authority from democratic institutions
in virtually any circumstance. In such circumstances constitutional rights
[265]
need to be carefully construed, lest they become loose cannons of the most
dangerous kind.
I
Before analyzing Citizens United in light of the history we discussed the first
lecture, it is necessary to clear away a preliminary claim that has received
much attention. In its first major campaign finance decision of the modern
era, the Court held in Buckley v. Valeo that legislative efforts to regulate
campaign contributions and expenditures implicate core First Amendment
values, because “discussion of public issues and debate on the qualifications
of candidates are integral to the operation of the system of government
established by our Constitution.”4 It has been contended by some that
because “money is property” rather than “speech,” it is inappropriate to
rely “on the first Amendment” to evaluate “campaign finance regulations.”5
The argument is that statutory bans on campaign expenditures should
not trigger any First Amendment scrutiny at all. I regard this argument as
untenable. As a general matter, First Amendment review can be triggered
either by the purpose of legislation or by the objects that legislation regu-
lates.6 The claim that money is not speech at most seeks to characterize
the object of campaign finance legislation. It does not and cannot address
the question of whether the purpose of campaign finance legislation is
consistent with First Amendment principles.
If legislation were to prohibit campaign expenditures by Democrats,
but not Republicans, no one would deny that a serious First Amendment
question has been raised. This conclusion would rest on the premise that
the legislation is likely motivated by the improper purpose of distorting
the free formation of public opinion. Even if the legislation applies only to
expenditures, no one would deny that its improper purpose would render
the legislation subject to strict First Amendment review.
The example illustrates that the First Amendment restrains government
action that is enacted for constitutionally improper purposes.7 About such
legislation one does not ask whether it applies to speech or to conduct.
A law that prevents Democrats, but not Republicans, from buying ink or
newsprint should fall under the First Amendment, regardless of whether
the purchases are or are not speech.8 Even if it is assumed that money is
“not speech,” therefore, it does not follow that campaign finance regula-
tions are immune from First Amendment scrutiny.
Moreover, the underlying assumption that money is “not speech” is
far from obvious. It can with great plausibility be maintained that speech
[Post] Campaign Finance Reform and the First Amendment 267
is so dependent upon the resources necessary to create and disseminate it

that the regulation of the latter should be regarded as the regulation of the
former. There are important precedents for the proposition that legisla-
tive suppression of the financial resources necessary to create or publish
speech is equivalent to suppression of the speech itself.9 These precedents
are neither foolish nor implausible. Legislation prohibiting the sale of
books containing the biographies of current political figures should be
regarded as effectively prohibiting the biographies themselves.
Even if a law is enacted for an unquestionably proper purpose, it may
nevertheless trigger First Amendment scrutiny if its impact on public
opinion formation is sufficiently consequential. Consider a law that bans
newsprint in order to save trees. The purpose of the law may be entirely
legitimate, but its effect would be to eliminate an important medium for
the communication of ideas, and First Amendment scrutiny would accord-
ingly be triggered.10 If the regulation of campaign finance expenditures
sufficiently diminishes the exchange of ideas believed necessary for public
opinion formation, the regulation should also trigger First Amendment
review.11
The question before us, therefore, is not whether First Amendment
scrutiny should apply to campaign finance regulations of the kind reviewed
in Citizens United. The question is how this scrutiny should be conducted.
II
At issue in Citizens United was the constitutionality of §441b of the Bipar-
tisan Campaign Reform Act of 2002 (BCRA), which prohibited inde-
pendent expenditures by the treasury funds of corporations “for speech
defined as an ‘electioneering communication’ or for speech expressly advo-
cating the election or defeat of a candidate.”12 The opinion for the Court
in Citizens United is not a model of clarity, and it is difficult to discern the
decisive line of the Court’s constitutional reasoning.
It is nevertheless clear that an important aspect of the Court’s decision
concerns the failure of the government to articulate a compelling govern-
ment interest capable of justifying the prohibition contained in §441b.
The Court held that §441b is “subject to strict scrutiny,” which means
that the legislation is constitutional only if the government can prove that
it “furthers a compelling interest and is narrowly tailored to achieve that
interest.”13 A major portion of the Court’s opinion in Citizens United is
devoted to demonstrating that §441b does not further any compelling
interest.
Three major state interests have traditionally been advanced to support

restrictions on campaign expenditures. These are interests in promoting
equality, in removing distortion, and in eliminating corruption. Each of
these interests makes good constitutional sense within the logic of repre-
sentation. Each offers a cogent justification of why an effective system of
representation might wish to control independent campaign expenditures.
But none of these justifications translates easily into the context of First
Amendment rights and the discursive democracy that it seeks to preserve.
A
We construct elections to equalize the potential influence of each citizen.
That is why, with the notorious exception of the United States Senate, the
Constitution is interpreted to require that the franchise be distributed
according to the formula of “one person, one vote.” As the Court famously
said in Reynolds v. Sims: “Full and effective participation by all citizens in
state government requires . . . that each citizen have an equally effective
voice in the election of members of his state legislature.”14 If the Constitu-
tion demands that citizens be given an equally effective voice in elections,
why would it not also permit government to regulate campaign financing
so as to promote the equal influence of all?15
The principle of equality is given full-throated expression in Cana-
dian law. Canada imposes stringent restrictions on all campaign contri-
butions and expenditures. Rejecting a challenge to these restrictions, the
Canadian Supreme Court affirmed that “individuals should have an equal
opportunity to participate in the electoral process” and that “wealth is the
main obstacle to equal participation.”16 “The egalitarian model of elections
adopted by Parliament is an essential component of our democratic soci-
ety,” the Court explained; it “promotes an electoral process that requires
the wealthy to be prevented from controlling the electoral process to the
detriment of others with less economic power.”17
In sharp contrast to the Canadian approach, the United States Supreme
Court in Buckley firmly rejected the idea that a “governmental interest
in equalizing the relative ability of individuals and groups to influence
the outcome of elections” can “justify” restrictions on campaign expen-
ditures.18 In a famous passage, the Court asserted that “the concept that
government may restrict the speech of some elements of our society in
order to enhance the relative voice of others is wholly foreign to the First
Amendment, which was designed ‘to secure “the widest possible dissemina-
tion of information from diverse and antagonistic sources,”’ and ‘“to assure
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.”’ ”19 The Court conceded that persons may
have “an equal right to vote for their representatives regardless of factors
of wealth or geography,” but it insisted that “the principles that underlie
invalidation of governmentally imposed restrictions on the franchise do
not justify governmentally imposed restrictions on political expression.”20
Regulations of the “franchise” must comply with the logic of represen-
tation, whereas regulations of “political expression” must comply with the
logic of discursive democracy. The logic of representation ultimately turns
on decision making; elections are institutions that decide the identity of
representatives. Insofar as elected officials represent persons, and insofar
as persons are regarded as having an equal interest in the identity of their
representatives, it makes perfect sense to allocate the vote equally to all
persons.21 The rule of equality expresses the moral judgment that each
person should have an equal right to influence the outcome of the decision.
By contrast, the logic of discursive democracy does not turn on deci-
sion making. Discursive democracy inheres in ongoing communicative
processes that are incompatible with decision making. Because discursive
democracy regards public opinion as continuously evolving, there is never
an “outcome” with respect to which each affected person can be entitled
to equal influence. Instead, each person is entitled to the equal right to
participate in the ongoing dialogue that constitutes public opinion. The
right to participate is equally distributed, but not the substance of that
participation. This distinction reflects a fundamental difference between
the logic of representation and the logic of discursive democracy.
Following the terminology of the Court, I shall use the term public dis-
course to describe the communicative processes by which persons partici-
pate in the formation of public opinion.22 The opportunity to participate
in public discourse is equally distributed to all because all are potentially
affected by government actions taken in response to public opinion. In a
democracy in which all citizens are equal before the law, each citizen is
equally entitled to the opportunity to participate in public discourse.
Yet the point of First Amendment rights is not to accord equal influ-
ence on government action to each citizen. The First Amendment does
not protect direct democracy; it should not be analogized to an initia-
tive. The function of First Amendment rights is instead to protect the
possibility of democratic legitimation. First Amendment rights embody
the hope that affording each person the opportunity to participate in
public discourse can create the “communion of interests and sympathy of
sentiments” between persons and their government that is a foundation of

self-g overnment.23 First Amendment rights should be defined so as to safe-
guard to each person the potential experience of democratic legitimation.
Democratic legitimation occurs when persons believe that government
is potentially responsive to their views. If they do not believe this, if they
become alienated from their government and lose the experience of owner-
ship, their government ceases to be democratically legitimate with respect
to them.24 Democratic legitimation therefore depends upon what people
actually believe. A government cannot enjoy democratic legitimacy unless
it carries the trust and confidence of its people. If a government possesses
the trust and confidence of its people, it will be democratically legitimate,
even if the impartial verdict of reason declares that the people ought to
withdraw their allegiance from their government. Conversely, if persons
are persuaded to forfeit confidence in their government, their government
will pro tanto lose democratic legitimacy, even if impartial reason would
suggest a different conclusion.
The subjective nature of democratic legitimacy underwrites the sub-
jective nature of First Amendment rights. The history of American First
Amendment jurisprudence is premised on the thought that the subjective
conviction of democratic legitimacy depends upon the subjective expe-
rience of freedom to participate in the formation of public opinion in
a manner adequate to the urgency of political convictions. We live in a
diverse and heterogeneous society, in which consensus on government
action is unlikely. In the midst of such disagreement, our primary hope
for democratic legitimacy lies in our identification with free processes of
public opinion formation. If these processes do not offer me what I regard
as meaningful opportunity to shape the content of public opinion, I may
begin to withdraw my identification with a government that will inevitably
take actions to which I would otherwise sharply object.
First Amendment rights therefore protect the opportunity of persons
to participate in public discourse in the manner they believe will be most
likely to make government responsive to their views. If they believe pas-
sionately about a particular public issue, they can express that passion in
the intensity and substance of their speech. They can expound their own
views as they see fit. What matters is that persons are given the opportunity
to participate in public opinion formation in a manner adequate to their
own convictions.25 Because different persons will be more or less passion-
ate about their beliefs, because they will be differently persuasive, they will
exercise disparate influences on the development of public opinion.
Highly structured decision-making occasions, like town meetings or

courtrooms, typically regulate the speech of participating persons, both as
to subject matter and as to time. Such regulation is designed to make deci-
sion making fair and legitimate. But public discourse is not about decision
making, and so it is not structured in this way. First Amendment rights
are instead structured to provide equality of opportunity to experience the
value of democratic legitimation. Democratic legitimacy is undermined
if persons are not given the right to participate in ways they regard as
meaningful, even if the lack of meaningful participation is equally shared.
The right concerns meaningful participation, not equal participation.26
If rights of participation in public discourse were to be equally distributed
so that each person were entitled to five minutes of participation on a
public access cable channel, persons might well cease to imagine public
discourse as a medium in which government is rendered accountable.27
The First Amendment guarantees persons the right to determine for
themselves how they will participate in public discourse.28 The state cannot
choose their vocabulary or media or genre. The state cannot put words in
their mouths. This is because the whole point of First Amendment rights
is to allow persons to choose the words they believe will be most effective.
The possibility of democratic legitimation rests on the freedom to make
such choices. That is why First Amendment rights authorize persons to
participate in public discourse in the manner they believe will best realize
for them the value of self-governance.
Preventing persons from participating in public discourse on the
simple ground that their participation is unequal to others is for this rea-
son constitutionally suspect.29 It would be unthinkable to enact legisla-
tion limiting each person to publishing no more than one book a year,
or contributing annually no more than two hundred column inches to a
newspaper, even though such legislation might serve the goal of equality.
The Court in Buckley was thus correct to hold that the principle of equality
cannot mechanically be transposed from the logic of representation to the
logic of discursive democracy.
B
A second state justification that has been advanced in support of campaign
finance reform is what has become known as the “antidistortion interest.”30
The antidistortion interest first made its appearance in 1990 in Austin v.
Michigan Chamber of Commerce,31 in which the Court upheld a Michi-
gan statute prohibiting corporations from using general treasury funds for
independent expenditures in connection with elections for state office. The

Court ruled that the legislation was justified by the state’s interest in con-
trolling “the corrosive and distorting effects of immense aggregations of
wealth that are accumulated with the help of the corporate form and that
have little or no correlation to the public’s support for the corporation’s
political ideas.”32 The Court emphasized that this interest was distinct
from the effort “to equalize the relative influence of speakers on elections.33
The antidistortion interest does not hold that each person should pos-
sess an equal right to influence the outcome of an election. It affirms instead
that the outcome of an election should “reflect actual public support.”34
Because corporate expenditures can affect the outcome of elections, and
because such expenditures are unrelated to actual public support, Austin
held that the state possesses a constitutional interest in eliminating “the
distortion caused by corporate spending.”35 Section 441b of BCRA was
enacted in reliance on the Court’s decision in Austin.
The antidistortion interest expresses a fundamental principle of repre-
sentation. Elections should represent public sentiments in a manner that
transparently reflects the actual opinions of the public. “A republic in the
modern sense of the word is a government in which the real judgment and
opinion of the body of the people are supposed to control the selection of
the public officers.”36 Whatever disrupts the pure expression of that judg-
ment and opinion undermines the function of an election. The effort to
create a pure and immediate relationship between majority will and public
decision making underlies Progressive reforms such as the initiative, refer-
endum, and recall.
In an election campaign, persons spend time and resources to convince
public opinion about their view of the decision at hand. The Court in
Austin adopted the plausible view that corporate expenditures are not cor-
related with the judgment and opinion of actual people. “ ‘ The resources in
the treasury of a business corporation . . . are not an indication of popular
support for the corporation’s political ideas. They reflect instead the eco-
nomically motivated decisions of investors and customers. The availability
of these resources may make a corporation a formidable political presence,
even though the power of the corporation may be no reflection of the
power of its ideas.’ ”37 Exactly this judgment has been operational in the
American polity since 1907; it was the rationale for Progressive regulation
of corporate campaign expenditures that we discussed in the first lecture.38
Because the antidistortion principle expresses a basic norm of rep-
resentative government, there have been many versions of the principle
advanced in support of campaign finance reform. To mention only the

most prominent, Lawrence Lessig in Republic Lost has recently argued
that elections should function to make government “dependent upon the
People alone.”39 Lessig explains that elections are about exercising “control”
over the actions of elected officials.40 If elections are properly designed,
elected officials will be controlled by the opinions of the people, as col-
lected and tabulated in the election itself. The republican principle of rep-
resentation41 requires that elected officials be “dependent” upon, “meaning
answerable to, relying upon, controlled by” the opinions of the people
“alone—meaning dependent upon nothing or no one else.”42 Departure
from this “constitutional baseline”43 is a “distortion”44 of foundational
republican values. Campaign expenditures must therefore be regulated
so that elected officials will not be dependent upon “the funders” instead
of “the People.”45 Because we have every reason to expect “a gap between
‘the funders’ and ‘the People,’ ”46 unregulated campaign expenditures will
fundamentally undermine republican principles.
Antidistortion arguments of this kind follow directly from the logic of
representation. Once we determine who should be represented in a deci-
sion, and how their views are to be aggregated, every departure from this
“baseline” ought to count as a distortion of the relevant decision. Lessig’s
version of the antidistortion argument follows once we assume that deci-
sions about representation should be made by persons and that each person
ought to have roughly equal influence in such decisions. If some persons
have a great deal more money than others, and if their money exerts a cor-
respondingly greater influence on the outcome of elections, it follows that
representation has become dependent upon funders rather than people
and that a distortion of the decision-making structure of representation
has occurred.
From the perspective of the First Amendment, however, the difficulty
with the antidistortion interest is that it presupposes a transparent and
fixed representation of public opinion. Within the discursive democ-
racy established by the First Amendment, public opinion is a continuous
process, so there can never be a “baseline” from which distortion can be
assessed. Within discursive democracy, public opinion does not make deci-
sions, so the “true” identity of the people is never revealed. Sovereignty
withdraws into the “subjectless forms of communication that regulate the
flow of discursive opinion- and will-formation.”47
The direct democracy celebrated by Progressives invites the people
to appear and to register an unmediated expression of their will. This
appearance is acclaimed as an expression of genuinely popular sentiment.

Popular authority is imagined as it is in populism,48 or, more darkly, as it is
in the full-throated acclamation of “a present, genuinely assembled people”
theorized in the scholarship of Carl Schmitt.49
Discursive democracy, in contrast to direct democracy, is hostile to the
“unmediated” appearance of the people. It knows that the appearance of
the people is always constructed. Discursive democracy therefore focuses
on the procedures by which this “appearance” is constituted. It focuses on
the communicative rights that define whether popular decisions count as
legitimate expressions of public opinion.
Refusing the temptation to make the people visible was famously
stressed by the French political theorist Claude Lefort, who insisted that
in a democracy, the place of the people must be “an empty place.”50 The
vacancy signifies that in discursive democracy, “the identity of the people”
is always “subject to an ongoing contestation.”51 The empty place of the
people stands for the authority of public opinion as such, and this author-
ity should be contrasted to any momentary snapshot of public opinion.52
“Political rights . . . underpin a process that has no endpoint, an argument
that has no definitive conclusion. In democratic politics, all destinations
are temporary. No citizen can ever claim to have persuaded his fellows once
and for all. There are always new citizens, for one thing; and old citizens
are always entitled to reopen the argument.”53
Within the logic of the First Amendment, therefore, antidistortion
arguments carry little purchase. Because democratic legitimation is ulti-
mately subjective, First Amendment rights regard public opinion as appro-
priately responsive to the intensity of public convictions. This means that
public opinion will be responsive to the resources persons are willing to
commit to the expression of their views. There can be no sharp distinc-
tion between the people and the funders. Within the context of discursive
democracy, it is unthinkable to prevent someone from speaking on the
ground that their speech would “distort” public opinion. Public opinion
is whatever persons choose to make it by speaking how they choose to
speak.54 That is why First Amendment doctrine would prohibit legislation
capping the budgets of feature films in order to prevent runaway block-
busters from “distorting” public opinion.
It follows that distortion can never be a ground to prevent partici-
pation in public discourse. Within the framework of First Amendment
rights, limiting speech to prevent distortion is equivalent to freezing public
opinion and preventing it from changing in response to new ideas and
convictions. But because public opinion is always in the making, there

can be no “authentic” point at which public opinion can be frozen. There
can be no “baseline,” no Archimedean point, from which to normalize the
content of public opinion.
Although the holding of Austin makes good sense within the logic of
representation, it does not translate to the context of contemporary First
Amendment doctrine. So long as First Amendment doctrine continues
to be interpreted to protect discursive democracy, the antidistortion prin-
ciple, like the equal influence principle, will express a government interest
that is incompatible with First Amendment rights.55
C
The third and doctrinally most important state interest that the Court has
advanced in support of campaign finance reform is the need to prevent
“corruption and the appearance of corruption.”56 The Court has even gone
so far as to assert “that preventing corruption or the appearance of corrup-
tion are the only legitimate and compelling government interests thus far
identified for restricting campaign finances.”57
The Court has never been precise about the meaning of either corrup-
tion or the appearance of corruption.58 It has “not always spoken about
corruption in a clear or consistent voice.”59 All agree that the paradigm case
of corruption is the quid pro quo contribution, the contribution given in
return for official action.60 The paradigm case of appearance of corruption
has tended also to be the public perception that representatives are accept-
ing quid pro quo contributions.61
In Buckley v. Valeo, the Court explained that “the increasing impor-
tance of the communications media and sophisticated mass-mailing and
polling operations to effective campaigning make the raising of large sums
of money an ever more essential ingredient of an effective candidacy.
To the extent that large contributions are given to secure a political quid
pro quo from current and potential office holders, the integrity of our
system of representative democracy is undermined.”62 A decade later the
Court elaborated: “Corruption is a subversion of the political process.
Elected officials are influenced to act contrary to their obligations of office
by the prospect of financial gain to themselves or infusions of money into
their campaigns. The hallmark of corruption is the financial quid pro quo:
dollars for political favors.”63
To speak roughly and schematically, the Court has conceptualized the
state’s interest in preventing corruption as the state’s interest in preserving
the integrity of representative government. Corruption occurs when

“elected officials are influenced to act contrary to their obligations of
office” by making “improper commitments.”64 The nature of the state’s
interest in regulating corruption depends upon a theory of the proper role
morality of elected representatives.65 The state’s interest in eliminating cor-
ruption does not arise from the First Amendment, and it thus must be bal-
anced against the state’s interest in maintaining First Amendment rights.
The fundamental doctrinal structure of Buckley, which has shaped our
entire jurisprudence of campaign finance reform, turns precisely on a com-
promise between the needs of representative government and the values of
the First Amendment. In effect, the Court in Buckley held that because the
state possesses a compelling interest in preventing the risk of corruption
inherent in direct campaign contributions, the First Amendment values
at stake in contributions can be overridden in order to preserve the integ-
rity of representative government. But because independent expenditures
create no such immediate danger to representative government, the state’s
interest in regulating independent expenditures must be sharply limited
by First Amendment rights.
In crafting this compromise, Buckley badly underestimated the dan-
gers to representative government posed by independent expenditures66
and unduly minimized the First Amendment values inherent in contribu-
tions.67 Nevertheless the Buckley compromise has served since 1976 as the
foundation for the constitutional law of campaign finance reform.
The Buckley compromise is doctrinally sterile. This is because the Court
cannot explain the concept of corruption on which it is based. Funds depos-
ited into a candidate’s personal bank account may be in tension with the
role morality of a representative, no matter how we define that role morality.
No one contends that bribery is not corrupt. But campaign contributions do
not increase the personal wealth of candidates. They instead support electoral
campaigns, and it is presumably in the public interest that electoral campaigns
be supported.68 For the concept of corruption to be theoretically generative,
we require an account of representative role morality that will help us to
determine when commitments made in return for support are “improper.”
It turns out that it is very difficult to construct such an account. Rep-
resentatives, as distinct from judges or administrators, are expected to
be responsive to the support of constituents. “ ‘Favoritism and influence
are not . . . avoidable in representative politics. It is in the nature of an
elected representative to favor certain policies, and, by necessary corollary,
to favor the voters and contributors who support those policies. It is well
understood that a substantial and legitimate reason, if not the only reason,
to cast a vote for, or to make a contribution to, one candidate over another
is that the candidate will respond by producing those political outcomes
the supporter favors. Democracy is premised on responsiveness.’ ”69
The contemporary constitutional law of campaign finance reform holds
that it is improper for a representative to promise to undertake official action
in return for a campaign contribution. Although this conclusion is robust,
it is not clear why Americans condemn quid pro quo contributions.70 There
are many different possible explanations, which lead to very different accounts
of representative role morality.71 For this reason the concept of quid pro quo
contributions has not proved theoretically generative.72 It has not inspired
a convincing account of representative role morality to balance against the
concrete First Amendment concerns raised by campaign finance reform.
This may explain why the Court’s efforts to expand the concept of cor-
ruption beyond the context of quid pro quo contributions have not been
based upon a theory of representative role morality. Instead, the Court
announced in McConnell v. FEC:
Just as troubling to a functioning democracy as classic quid pro quo cor-

ruption is the danger that officeholders will decide issues not on the merits
or the desires of their constituencies, but according to the wishes of those
who have made large financial contributions valued by the officeholder.
Even if it occurs only occasionally, the potential for such undue influence
is manifest. And unlike straight cash-for-votes transactions, such corrup-
tion is neither easily detected nor practical to criminalize. The best means
of prevention is to identify and to remove the temptation.73
The Court has analogously identified “the appearance of undue influence”

with “the appearance of corruption.”74 It is noteworthy that neither “undue
influence” nor the “appearance of undue influence” offers an account of
what it is improper or proper for representatives to do.
Because the Court accepts that representatives should be responsive
to “the desires of their constituencies,” and because the Court also accepts
that constituents can express their desires through financial donations,75
representatives cannot look to the concept of “undue influence” in order to
understand the difference between appropriate and inappropriate action.
From the point of view of representatives, the criterion of “undue influ-
ence” does not distinguish between support that should be influential and
support that should not be.76
Instead, the criterion of “undue influence,” and its correlative expan-

sion into “the appearance of undue influence,” affirms a value that derives
from the structural integrity of our system of representation. Influence is
“undue” when it either “distorts” the behavior of representatives by making
them unduly responsive to wealthy contributors or promotes “inequality”
by giving wealthy contributors undue influence with regard to the behav-
ior of representatives.77 This suggests that the state’s interest in curtailing
“undue influence” essentially depends upon its interests in implementing
the “equality of influence” principle or the “antidistortion” principle.
For the reasons that I have previously explored, these principles are
deeply in tension with fundamental First Amendment values. That is why
justices who privilege First Amendment rights over campaign finance
reform also seek to limit the concept of corruption to quid pro quo trans-
actions. In Citizens United, for example, the Court flatly ruled that “When
Buckley identified a sufficiently important governmental interest in pre-
venting corruption or the appearance of corruption, that interest was lim-
ited to quid pro quo corruption.”78 Building on the Buckley compromise,
the Court in Citizens United held that the independent expenditures regu-
lated by §441b cannot pose a sufficient danger of quid pro quo corruption
to justify regulation under the First Amendment.79
The legacy of Buckley is evident in the way that Citizens United con-
ceptualizes the state’s interest in preventing corruption. Because Citizens
United conceives this interest as distinct from the values protected by the
First Amendment, it imagines campaign finance reform as intrinsically in
conflict with First Amendment jurisprudence. The conflict can be resolved
only through unstable and arbitrary compromises of the kind advanced by
Buckley.
Conceptualizing campaign finance reform in terms of the state’s inter-
ests in preventing corruption leads us down a constitutional blind alley.
It not only stunts the impulse toward a comprehensive constitutional the-
ory of campaign finance reform, but also deprives us of the jurisprudential
resources necessary to craft a more durable and theoretically satisfying
connection between basic First Amendment principles and the needs of
representative government.
III
To understand how the First Amendment ought to be applied in the
context of campaign finance reform, we must theorize the relationship
between discursive democracy, which the First Amendment protects, and
representative government, which campaign finance reform seeks to pre-

serve. Discursive democracy and representative government each strives
for the good of self-government. Each seeks to empower the people to
claim “ownership” of their own government. Yet each functions according
to a different logic.
Representative government requires constant and recurring episodes
of decision making, whereas discursive democracy depends upon unin-
terrupted and continuous processes of communication. In representative
government, the people must become visible so that their will can be repre-
sented; in discursive democracy, the people must disappear into a subject-
less framework for communication. This divergence means that although
principles of “equality of influence” and “antidistortion” are required
within representative government, they are forbidden within discursive
democracy.
This does not imply, however, that discursive democracy and repre-
sentative government are incapable of being theorized within a common
constitutional framework. Discursive democracy requires not only free
participation in public discourse, but also a structure of government that
connects official decision making to public opinion. We have historically
and constitutionally adopted forms of representative government designed
to serve this purpose. Like the framers, we believe that “frequency of elec-
tions” is “the great bulwark of our liberty.”80 We use elections to guarantee
that government will be responsive to public opinion. Habermas formu-
lates the point in this way: “The flow of communication between public
opinion-formation, institutionalized elections, and legislative decisions is
meant to guarantee that influence and communicative power are trans-
formed through legislation into administrative power.”81
Elections underwrite discursive democracy by focusing and prompt-
ing public opinion. Participants in public discourse debate what to do in
the next election and whether officials already elected remain sufficiently
attentive to public opinion. Public opinion continuously evolves in the
course of this debate.82 Although elections provide momentary glimpses
of public opinion, and in this way serve the direct democracy celebrated by
progressives, they do not displace ongoing processes of public opinion for-
mation. To the contrary, elections promote these processes. Elections give
citizens good reason to participate in public discourse and hence fashion
an “effective democracy.” Elections are essential to discursive democracy
because they inspire public trust that representatives will be responsive to
public opinion.83
First Amendment rights protect the possibility that citizens can par-
ticipate in the formation of public opinion. The hope is that government
will be responsive to public opinion, and thus to the communicative
efforts of citizens. Elections are therefore essential to the First Amendment
because they are the principal mechanism by which government is made
responsive to public opinion. If the public does not believe that elections
produce officials who attend to public opinion, the link between public
discourse and self-government is broken.84 Unless there is public trust that
elections will select officials responsive to public opinion, the very First
Amendment rights so vigorously affirmed in Citizens United cannot pro-
duce democratic legitimation. They cannot connect communication to
self-government.85
This strongly suggests that First Amendment rights presuppose that
elections must be structured to select for persons who possess the “commu-
nion of interests and sympathy of sentiments” to remain responsive to pub-
lic opinion.86 I shall henceforth use the term electoral integrity exclusively
to denominate elections that have the property of choosing candidates
whom the people trust to possess this sympathy and connection. Without
electoral integrity, First Amendment rights necessarily fail to achieve their
constitutional purpose. If the people do not believe that elected officials
listen to public opinion, participation in public discourse, no matter how
free, cannot create the experience of self-government.
It is perhaps because discursive democracy requires its own form of
electoral integrity that the Court has taken to characterizing the United
States as a “representative democracy.”87 If we analyze campaign finance
reform from the perspective of this kind of electoral integrity, we are not,
as with principles such as “equality of influence” and “antidistortion,”
attempting to force a procrustean marriage between discursive democ-
racy and representative government. We are instead seeking to make First
Amendment rights, and the discursive democracy for which they stand,
more efficacious.
Electoral integrity does not require that representatives be delegates,
as distinct from trustees. It does not require representatives to “take
instruction” from public opinion. It presupposes only public belief in the
responsiveness of representatives to public opinion. Within the framework
of discursive democracy, public opinion cannot be a source of instruc-
tion because public opinion is incapable of definitive representation. The
influence of public opinion is indirect. The content of public opinion is
intrinsically subject to interpretation and judgment, and it is potentially
always evolving. This means that representatives must be responsive to a

public opinion that they are partly responsible for constructing.
As Hanna Pitkin rightly explains, “None of the analogies of acting for
others on the individual level seems satisfactory for explaining the relation-
ship between a political representative and his constituents. He is neither
agent nor trustee or deputy nor commissioner.”88 Electoral integrity is not
a concept that can be applied to the particular decisions of particular rep-
resentatives. It is instead a property of a system of representation, in which
the public trusts that representatives will be attentive to public opinion.
In Pitkin’s words, “The representing done by an individual legislator must
be seen . . . as embodied in a whole political system. . . . What makes it
representation is not any single action by any one participant, but the over-
all structure and functioning of the system.”89
The Court in its opinions has not considered the state’s interest in
promoting the electoral integrity required by the First Amendment.
The Court has instead been preoccupied by attempting to balance First
Amendment rights against the need to prevent corruption. The upshot
has been a series of unstable constitutional compromises that have left the
jurisprudence of campaign finance reform vulnerable to wildly inconsis-
tent holdings.
If we instead reformulate our campaign finance jurisprudence upon
the principle of electoral integrity, on which all sides can potentially
agree, we may create a more enduring foundation for the contested area
of campaign finance reform. Those who treasure First Amendment rights
should support the electoral integrity that is necessary for First Amend-
ment rights to achieve their constitutional purpose. Those who support
campaign finance reform should affirm the electoral integrity required for
contemporary representation to exemplify the value of self-government.
Once the bitter dust of the current controversy settles, the principle of
electoral integrity offers the possibility of reconstructing on firm common
ground the constitutional jurisprudence of campaign finance reform.
This ground is not utterly foreign to the Court. Buckley itself empha-
sized the state’s compelling interest in maintaining “ ‘confidence in the
system of representative Government,’ ”90 noting that in previous decisions
the Court had held that this interest justified restricting the First Amend-
ment rights of government employees to engage in partisan political activi-
ties. But Buckley linked this interest to a concern with preventing “the
appearance of corruption,”91 and thus severed the interest from any inter-
nal connection to First Amendment values. Understood as a specifically
First Amendment principle, electoral integrity must focus sharply on pub-

lic confidence that elections are structured to produce officials who are
attentive to public opinion.
As I discussed in the previous lecture, the Progressive Era experienced
a crisis of representation because of the widespread belief that elected offi-
cials were beholden to political parties, which in turn were answerable to
corporate wealth rather than to the people. The solution to the crisis of the
Progressive Era was to make representatives more directly dependent upon
public opinion. Contemporary campaign finance reform proposals may
best be understood as analogously seeking to ameliorate the widespread
perception that elected representatives are responsive to wealthy donors,
but not to public opinion.92
In 1914 Harvard president A. Lawrence Lowell wrote that if “reëlection
depends upon a boss whose good will in the matter is . . . contrary to the
real sentiment of the electorate, then this mode of expressing public opin-
ion is vitiated at its source.”93 Americans responded by seeking to mini-
mize the influence of the boss in determining the outcome of elections.
They acted to ensure that elections would hold candidates accountable
to public opinion. Contemporary campaign finance reform has exactly
the same ambition. It seeks to assure Americans that elections will select
candidates who are responsive to public opinion, not merely to the views
of the wealthy.94
This formulation of the issue does not depend upon principles such as
equality of influence, antidistortion, or corruption. It depends instead on
the simple need for democratic legitimation. Americans cannot maintain
the blessing of self-government unless they believe that elections produce
representatives who are responsive to public opinion. Without trust and
faith in this version of electoral integrity, Americans have no reason to
exercise the communicative rights guaranteed by the First Amendment.
The closest the Court has come to expressing this perspective is in Nixon
v. Shrink Missouri Government PAC, where the Court observed that “the
cynical assumption that large donors call the tune could jeopardize the
willingness of voters to take part in democratic governance. Democracy
works ‘only if the people have faith in those who govern.’ ”95
The Court in Shrink properly understood that the achievement of
electoral integrity was empirically contingent. At times in our history
elections have possessed electoral integrity, and at other times they have
not. Electoral integrity can be lost, and it can be gained. To the extent
that the Court in Citizens United glimpsed the profound constitutional
significance of electoral integrity, it seemed to imagine electoral integrity

as a matter of law, rather than of fact. The Court impatiently swatted away
the suggestion that corporate expenditures might cause corruption or the
appearance of corruption, affirming:
The appearance of influence or access, furthermore, will not cause the

electorate to lose faith in our democracy. By definition, an independent
expenditure is political speech presented to the electorate that is not
coordinated with a candidate. The fact that a corporation, or any other
speaker, is willing to spend money to try to persuade voters presupposes
that the people have the ultimate influence over elected officials. This is
inconsistent with any suggestion that the electorate will refuse “ ‘to take
part in democratic governance’ ” because of additional political speech
made by a corporation or any other speaker.96
The American people have worried since the Progressive Era that
unlimited corporate expenditures might make elected officials respon-
sive to corporate wealth rather than to public opinion. They have been
apprehensive that unlimited corporate political spending might endanger
electoral integrity. This concern has been expressed in the long-standing,
democratically endorsed legislative judgments of the American people.
It is the height of hubris for the Court, by a vote of five justices on a bench
of nine, simply to dismiss concerns for electoral integrity on the ground
that electoral integrity is a question of law rather than of social fact.97
Since the beginning of our nation, since the debate between Madison
and Brutus, Americans have agreed that electoral integrity depends on
questions of institutional design. It is certain that if the design of con-
temporary elections has caused Americans to lose faith in the electoral
integrity of their representative system, their faith will not be restored by
the professional legal assertions of the Supreme Court, particularly in the
context of a divisive, politically controversial opinion.
Electoral integrity depends upon how Americans believe their elec-
tions actually work. In 2012 the Supreme Court was presented with a peti-
tion for certiorari to review a decision of the Montana Supreme Court
upholding the state’s prohibition on corporate campaign expenditures in
order to preserve “the integrity of its electoral process.”98 The state pro-
hibition was first enacted in 1912 in response to a manifest loss of faith
in representative government caused by massive expenditures by mining
and industrial corporations, a history vividly and convincingly recounted
by the Montana Supreme Court. As one Montana newspaper said at the

time, “If the copper trust must rule Montana, why not cut out all pretense
of representative government and haul down the flag of a free state? Why
not abolish the legislature and dispense with a state government?”99
In a shocking result, the United States Supreme Court, by a vote of
five to four, granted the petition for certiorari only to summarily reverse
the Montana decision on the basis of the legal principle announced in
Citizens United.100 In effect the Supreme Court held that the loss of elec-
toral integrity could never under any circumstances justify limitations on
independent corporate campaign finance expenditures. It is beyond my
comprehension how a responsible Court might regard electoral integrity
as irrelevant to the protection of First Amendment rights and how it might
regard history as irrelevant to the precious resource of electoral integrity.
Electoral integrity is a foundational value for American democracy. Not
only is electoral integrity consistent with received First Amendment juris-
prudence, it is required by that jurisprudence. And there can be no doubt
that electoral integrity is today under threat. Americans’ trust and confi-
dence in their representative institutions have fallen to record lows; we are
once more experiencing what most regard as a crisis of representation.101
In such circumstances it is especially disappointing that the Court seems
unwilling to recognize even the existence of the constitutional principle of
electoral integrity, much less to think through the doctrinal implications
of how threats to electoral integrity might be constitutionally established.
In these lectures I shall not explore the question of whether electoral
integrity is in fact at risk or that campaign finance reform would in fact
ameliorate that risk. I argue only that the protection of electoral integrity
constitutes a compelling state interest and that the need for such protec-
tion depends upon the relevant facts of the matter. Anyone who reads the
undisputed facts of the Montana case must acknowledge that there have
been times in our history when electoral integrity has been threatened.
The example of the Montana Corrupt Practices Act suffices to illustrate
that dangers to electoral integrity can be real and potentially catastrophic
and that they can be addressed by changes in institutional design. It is the
height of folly to allow arid legalisms to blind us to these essential lessons.
When government acts to preserve electoral integrity, it acts for the
right reasons. Tailoring state action to the maintenance of electoral integ-
rity is thus unlikely to produce counterintuitive results. Consider that
Citizens United had originally come to the Court as a narrow, technical
case,102 and that it escalated into a major constitutional controversy only
after a government lawyer conceded during initial argument that corpora-

tions could be prohibited from using treasury funds to publish books of
express advocacy during a campaign.103 The concession produced shock
that the government’s efforts at campaign finance reform could reach so
surprisingly far. No doubt the shock consolidated the Court’s determi-
nation to author an equally broad repudiation of government efforts to
regulate campaign finance expenditures.104
Under the present constitutional framework of campaign finance
reform, the government’s concession follows directly from the broad and
ill-defined nature of the state interest in preventing corruption and the
appearance of corruption, which can justify a seemingly endless series of
overreaching prohibitions. Providing practically anything of substantial
value for support of a candidate’s election is easily categorized as a bid for
“undue influence” or reciprocal favors.
If the government were instead required to justify legislation in terms
of preserving electoral integrity, I very much doubt that it could plausibly
be maintained that books (or pamphlets,105 or even movies) are respon-
sible for Americans’ fear that elected representatives are not responsive
to public opinion. If electoral integrity is presently at risk because of sub-
stantial expenditures, it is almost certainly because of the relentless tide of
campaign advertisements on broadcast and cable television.
My best guess is that justifying campaign finance regulation on the
basis of actual threats to electoral integrity would suggest natural and intu-
itively obvious constitutional limits to the regulation of campaign speech.
Regulation should be confined to the kinds of expenditures that actually
undermine faith in democratic responsiveness. It would of course require
empirical study to identify such expenditures. I claim only that we ask
the right constitutional question when we inquire about the relationship
between campaign expenditures and electoral integrity.
IV
As presently conceived, campaign finance reform entails restrictions on
campaign expenditures and contributions. Such regulations inevitably
raise First Amendment questions about the rights of those who wish to
contribute and spend in campaigns. The First Amendment costs of limit-
ing these rights must be set against the First Amendment gains achieved
by sustaining electoral integrity. Assessing this trade-off will require a firm
sense of the nature of the First Amendment rights that campaign finance
regulations potentially compromise.
If the absence of a compelling government interest was one important

strand in the reasoning of Citizens United, another was the importance of
First Amendment doctrine prohibiting discrimination among speakers. The
Court was quite categorical about the rule prohibiting such discrimination:
Premised on mistrust of governmental power, the First Amendment

stands against attempts to disfavor certain subjects or viewpoints. Pro-
hibited, too, are restrictions distinguishing among different speakers,
allowing speech by some but not others. As instruments to censor,
these categories are interrelated: Speech restrictions based on the iden-
tity of the speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulating content, more-
over, the Government may commit a constitutional wrong when by
law it identifies certain preferred speakers. By taking the right to speak
from some and giving it to others, the Government deprives the disad-
vantaged person or class of the right to use speech to strive to establish
worth, standing, and respect for the speaker’s voice. The Government
may not by these means deprive the public of the right and privilege
to determine for itself what speech and speakers are worthy of consid-
eration. The First Amendment protects speech and speaker, and the
ideas that flow from each.106
The Court never asked what value this First Amendment rule is meant
to serve. Its formal invocation of the rule caused it to stumble badly in its
interpretation of precedent and principle.
It is easy to recognize the paradigm case from which the Court derives
its “rule” against discriminating “among different speakers.” If a liberal and
a conservative are each vying for public support, the state may not suppress
the speech of the conservative on the basis of the latter’s identity. This con-
clusion seems unproblematic. But the question is whether it is meaningful
to create a general and abstract rule on the basis of this paradigm case.
A general and abstract rule is neither possible nor desirable. The para-
digm case illustrates that all persons ought to be allowed an equal oppor-
tunity to participate in the free formation of public opinion. It does not
follow from this purpose that discrimination between persons who are not
participating in public discourse is also forbidden. Such discrimination is
in fact routine and necessary.
A simple example might be the unauthorized practice of law. Assume
A and B each communicate the same legal advice to the same client, but
that A is a licensed lawyer and that B is not. Contrary to the dicta of
Citizens United, the law will treat the speech of B differently than the
speech of A. B will be sanctioned for the unauthorized practice of law,
but A will not. This difference in treatment between A and B will most
likely not receive any First Amendment scrutiny at all. Whereas the rule
invoked by Citizens United refers to participation in public discourse, the
regulation of the unauthorized practice of law refers to professional speech
between lawyers and clients, which forms no part of the creation of public
discourse. That is why the professional communications of professional
speakers are treated very differently than would be suggested by the rule
enunciated in Citizens United.
I refer to this example to suggest that First Amendment “rules” of the
kind invoked by Citizens United are of little value until we know the pur-
pose that such rules are designed to serve.107 Most First Amendment rules
exist to protect the value of democratic legitimation. First Amendment
doctrine provides that all should be free to participate in public discourse
so that all can feel that government is potentially responsive to their own
personal contributions to public discourse. Because each person has an
equal right to attempt to influence public opinion, canonical First Amend-
ment doctrine forbids government from discriminating among speakers
in public discourse on the basis of their identity or their viewpoint.108
The value of democratic legitimation applies to persons, not to things.
If there were a self-perpetuating viral communication on the Internet,
it would not have First Amendment rights. This is because computer pro-
grams cannot experience the value of democratic legitimation. At issue
in Citizens United are the First Amendment rights of corporations. Cor-
porations are not persons; they cannot experience the subjective value of
democratic legitimation. That is why we do not permit corporations to
vote in elections or to hold seats in a legislature. The corporation, qua
corporation, is a legal entity, nothing more.
A corporation can, however, assert the rights of persons in two distinct
ways: it can assert the rights of persons who make up the corporation, or it
can assert the rights of persons who are strangers to the corporation. With
regard to the former, the question is how and when the rights of persons
employed by a corporation should be attributed to the corporation itself.
There is no simple answer to this question. Sometimes a corporation can
assert the rights of persons within it, and sometimes not. Although per-
sons within a corporation can vote, it does not follow that a corporation
can vote.
First Amendment jurisprudence contains a well-worked-out theory

of when organizations can exercise the First Amendment rights of their
members. Although there is no generic independent First Amendment
right to associate, there is an independent First Amendment right to asso-
ciate more effectively to exercise First Amendment rights. As Chief Justice
Roberts has written for the Court: “We have recognized a First Amend-
ment right to associate for the purpose of speaking. . . . The reason we
have extended First Amendment protection in this way is clear: The right
to speak is often exercised most effectively by combining one’s voice with
the voices of others. . . . If the government were free to restrict individu-
als’ ability to join together and speak, it could essentially silence views
that the First Amendment is intended to protect”.109 First Amendment
rights of association protect the “ability and the opportunity to combine
with others to advance one’s views.”110 “The Court has recognized a right
to associate for the purpose of engaging in those activities protected by
the First Amendment—speech, assembly, petition for the redress of griev-
ances, and the exercise of religion.”111
If persons form an association for the purpose of engaging in First
Amendment activities, the association may claim the personal First
Amendment rights of its members.112 In FEC v. Massachusetts Citizens
for Life, Inc.,113 the Court explicitly held that even if such an association
assumes a corporate form, it may nevertheless assert First Amendment
rights that are equivalent to the First Amendment rights of those who have
associated together in order to form the corporation.
Most corporations, however, are not formed for the purpose of engag-
ing in First Amendment activities. Ordinary commercial corporations are
not expressive associations, and for this reason they may not assert the First
Amendment rights of persons who make up ordinary commercial corpora-
tions. As Justice Scalia has written, “The robust First Amendment freedom
to associate belongs only to groups ‘engage[d] in “expressive association.”’
The Campbell Soup Company does not exist to promote a message, and
‘there is only minimal constitutional protection of the freedom of commer-
cial association.’ ”114 The distinction is fundamental to the constitutional
status of the most ordinary regulations of economic life. State corporate
law pervasively regulates the way persons may join together to form a cor-
poration. If there were a First Amendment right to join together to form
ordinary commercial corporations, if Justice Scalia were not correct, every
aspect of state corporate law would be subject to severe First Amendment
scrutiny.115
If ordinary commercial corporations possess First Amendment rights,

therefore, it must be because of the rights of persons who are strangers to
the corporation. This is in fact the holding of the Court in First National
Bank of Boston v. Bellotti,116 the Court’s seminal decision on the First
Amendment rights of commercial corporations and the decision most
heavily relied upon by the Court in Citizens United. In Bellotti, the Court
stated, quite explicitly and carefully:
The court below framed the principal question in this case as whether
and to what extent corporations have First Amendment rights.
We believe that the court posed the wrong question. The Constitu-
tion often protects interests broader than those of the party seeking
their vindication. The First Amendment, in particular, serves signifi-
cant societal interests. The proper question therefore is not whether
corporations “have” First Amendment rights and, if so, whether they
are coextensive with those of natural persons. Instead, the question
must be whether [the statute at issue in this case] abridges expression
that the First Amendment was meant to protect.117
At issue in Bellotti was a Massachusetts statute prohibiting ordinary

business corporations from making independent expenditures to influence
the result of election referenda. Reasoning according to logic first system-
atically explored by Alexander Meiklejohn, the Court in Bellotti held that
the First Amendment protected the flow of information to voters in an
election, because such information is “indispensable to decision-making
in a democracy.”118 The Court reasoned that the “inherent worth of the
speech in terms of its capacity for informing the public does not depend
upon the identity of its source, whether corporation, association, union,
or individual.”119
Because ordinary commercial corporations are not natural persons
who can experience the subjective value of democratic legitimation, they
do not possess original First Amendment rights to participate in public
discourse as speakers.120 Bellotti holds that ordinary commercial corpora-
tions instead possess the derivative First Amendment right to speak in ways
that inform their auditors, who are strangers to the corporation.121
There are obvious and important distinctions between these two dif-
ferent kinds of First Amendment rights. Those who possess an original
right to participate in public discourse cannot be compelled to speak in
public discourse.122 First Amendment rights include “both the right to
speak freely and the right to refrain from speaking at all.”123 By contrast
commercial corporations are routinely required to make factual public
disclosures, and these requirements do not trigger any First Amendment
scrutiny at all. This is because the First Amendment rights of commercial
corporations are derived from the rights of its auditors to be informed, not
from the subjective experience of democratic legitimation.
The Court in Citizens United is oblivious to this fundamental distinc-
tion, misinterpreting Bellotti as rejecting “the argument that political
speech of corporations or other associations should be treated differ-
ently under the First Amendment simply because such associations are
not ‘natural persons.’ ”124 Bellotti carefully explained that it was holding
no such thing. Bellotti explicitly signaled that in theory and practice, the
First Amendment rights possessed by commercial corporations differ from
those possessed by natural persons.
First Amendment doctrine controls government regulations of public
discourse. By public discourse I refer to the participation of natural persons
in the formation of public opinion. First Amendment doctrine holds that
such participation is “delicate and vulnerable, as well as supremely pre-
cious in our society. The threat of sanctions may deter [its] exercise almost
as potently as the actual application of sanctions. Because First Amend-
ment freedoms need breathing space to survive, government may regulate
in the area only with narrow specificity.”125 First Amendment rights are
supremely precious because their exercise makes democratic legitima-
tion possible. As Brandeis wrote almost a century ago, the “full and free
exercise” of First Amendment rights is a “political duty” essential to the
nation; the “greatest menace to freedom is an inert people.”126 Only active
participation can produce the democratic legitimation that underlies self-
government. When the state chills public discourse, it chills the possibility
of democratic legitimation.
The derivative right of an ordinary commercial corporation to con-
tribute to informed decision making is an entirely different kind of right.
Ordinary commercial corporations have no “political duty” to participate
in public discussion. It is not a menace to freedom if commercial corpora-
tions are inert. Ordinary commercial corporations are neither subjects
nor objects of democratic legitimation. If public opinion is understood
from a constitutional point of view as, in Brandeis’s words, the “resultant
of the struggle between contending forces,” commercial corporations have
neither the right nor the responsibility to contribute their views to public
opinion. Instead, they have the right only to publish such information as
may be relevant to natural persons as they strive to formulate and com-

municate their views to other persons.
Important constitutional distinctions follow from this difference.
Because government restrictions on public discourse potentially impair
democratic legitimation, courts may properly require the state to advance
only the most compelling interests when it seeks to regulate public dis-
course. Because restrictions on the speech of ordinary commercial cor-
porations at most risks impairing the circulation of possibly valuable
information, the state should be able to regulate such speech on the basis
of less pressing interests.127 The Court has explicitly embraced this conclu-
sion in the closely analogous context of commercial speech, which trig-
gers First Amendment scrutiny only because it provides information to its
auditors.128
Government cannot prohibit participation in public discourse on the
ground that it fails to promote informed public decision making. This
is because participation in public discourse is not protected because it
promotes informed public decision making, but because it creates demo-
cratic legitimation. If the speech of ordinary commercial corporations fails
to inform public decision making, however, its speech may be regulated,
because promoting informed public decision making is the only ground
for the constitutional protection of such speech. There is once again a
strong analogy to the doctrinal category of commercial speech.129 It is a
contingent, empirical question whether independent campaign expen-
ditures by commercial corporations promote informed public decision
making.130
The Court’s opinion in Citizens United is pervasively confused by its
failure to appreciate these basic constitutional distinctions. Section 441b
of BCRA does not absolutely prohibit ordinary commercial corporations
from express advocacy or electioneering communications. It instead pro-
vides that expenditures for such purposes can be made only from separately
segregated funds called political action committees (PACs), funds espe-
cially created for this purpose and supported by donations from stock-
holders and employees of the corporation. The Court held that §441b was
nevertheless the constitutional equivalent of an absolute prohibition:
Section 441b is a ban on corporate speech notwithstanding the fact

that a PAC created by a corporation can still speak. A PAC is a separate
association from the corporation. So the PAC exemption from §441b’s
expenditure ban, §441b(b)(2), does not allow corporations to speak.
Even if a PAC could somehow allow a corporation to speak—and it

does not—the option to form PACs does not alleviate the First Amend-
ment problems with §441b. PACs are burdensome alternatives; they
are expensive to administer and subject to extensive regulations. . . .
Section 441b’s prohibition on corporate independent expenditures
is thus a ban on speech. . . . If §441b applied to individuals, no one
would believe that it is merely a time, place, or manner restriction on
speech.131
This passage flatly equates the First Amendment right of ordinary com-
mercial corporations with those of natural persons. It thus basically misun-
derstands the constitutional status of ordinary commercial corporations.
The First Amendment has nothing to say about the kinds of commercial
associations a state can authorize. It is open to a state to create forms of
commercial associations that are forbidden from participating in politics,
either through express advocacy or through electioneering communica-
tions. Individuals may have a First Amendment right to form expressive
associations, but they have no First Amendment right to form ordinary
commercial associations. An ordinary commercial corporation has no
original First Amendment right to speak in its own voice.
The speech of an ordinary commercial corporation possesses consti-
tutional value only because it provides information to auditors. It carries
no constitutional significance whether that information is communicated
in the voice of a distinct commercial corporate entity or in the voice of
a PAC. The only constitutional question presented by BCRA is whether
prohibiting persons who make up a commercial corporation from speak-
ing through the corporate form, as distinct from speaking through PACs,
undermines informed public decision making.132
The Court’s opinion in Citizens United repeatedly appropriates the
form of First Amendment doctrine that is associated with “chilling effect”
analysis.133 It argues that because it is more burdensome to speak through
a PAC than to speak directly without a PAC, BCRA might discourage
protected speech that would otherwise be produced. Chilling-effect analy-
sis turns on the premise that First Amendment rights are “delicate and
vulnerable, as well as supremely precious.”134 Yet the speech of ordinary
commercial corporations is not supremely precious, because ordinary com-
mercial corporations do not produce the good of democratic legitimation.
Their speech is neither delicate nor vulnerable, because by law the speech of
commercial corporations must be justified in terms of corporate interests.
Although the value of a politically active citizenry is incalculable, it is

always easiest for citizens to retreat to private life and to refuse the chal-
lenge of public participation.135 The First Amendment has therefore been
interpreted to prohibit state regulations that chill the creation of demo-
cratic legitimation. Because the speech of ordinary commercial corpora-
tions is motivated by corporate financial interests, there is no reason to
regard it as vulnerable and delicate. That is why chilling-effect analysis
typically does not apply in the arena of commercial speech.136
That the regulation of PACs might be burdensome if applied to the
speech of natural persons is of little constitutional significance in the con-
text of ordinary commercial corporations. The relevant question, which
the Court neither asks nor answers, is whether prohibiting direct corpo-
rate speech, but allowing the speech of PACs, promotes or undermines
informed public decision making.
The First Amendment theorist who has thought most deeply about
First Amendment rights that depend upon informed public decision mak-
ing is Alexander Meiklejohn, who has concluded that such rights not only
may permit, but may require, discrimination among speakers. Meiklejohn
famously argued that First Amendment rights are necessary to ensure that
“a self-governing community,” committed to “the method of voting,” can
“gain wisdom in action.”137 “The point of ultimate interest,” Meiklejohn
observed, “is not the words of the speakers, but the minds of the hearers.
The final aim . . . is the voting of wise decisions.”138
Citing the protocols of “the traditional American town meeting,”139
Meiklejohn observed that if our goal is to allow “all facts and interests
relevant to the problem [to] be fully and fairly presented,” we must adopt a
fairly intrusive procedure that enables “facts and interests” to be presented
“in such a way that all the alternative lines of action can be wisely mea-
sured in relation to one another.”140 In constructing this procedure, “what
is essential is not that everyone shall speak, but that everything worth
saying shall be said. To this end, for example, it may be arranged that each
of the known conflicting points of view shall have, and shall be limited to,
an assigned share of the time available.”141
We adopt rules of procedure like those described by Meiklejohn
in almost every setting in which we desire to maximize informed pub-
lic decision making. Such rules inevitably distinguish among speakers.
Meiklejohn himself discussed the rules of procedure that govern town
meetings, which regularly discriminate among speakers based upon
whether they are “in order” or “out of order,” whether they mean to speak
about material versus immaterial matters, whether they are disruptive or

orderly, and so on. Analogous rules obtain in all legislative proceedings and
hearings, which are designed to promote the informed decision making of
lawmakers. Analogous rules govern all courtroom proceedings, which are
designed to inform the decision making of judges and juries. It would be
simply chaos if all could speak in a courtroom according to their resources
and desires. Similar rules apply in state college and high school classrooms,
which have the aim of most effectively and efficiently informing students
about a subject matter. Teachers who wish fully to inform their students
do not permit class time to be taken up by the indiscriminate chatter of
anyone who has the capacity or desire to talk.
When the Court itself first sought to apply the First Amendment to
a situation that did not involve the original right to participate in public
discourse, it readily acknowledged that orderly procedures distinguishing
among speakers were essential to the informed decision making of the gen-
eral public. In Red Lion Broadcasting Co. v. FCC,142 the Court considered
the constitutionality of the fairness doctrine, as well as subsidiary FCC
rules requiring those personally attacked to be given a right to reply. Decid-
ing on the assumption that broadcast frequencies were a scarce commodity
and that it was therefore “idle to posit an unabridgeable First Amendment
right to broadcast comparable to the right of every individual to speak,
write, or publish,”143 the Court declared that “the people as a whole retain
their interest in free speech by radio and their collective right to have the
medium function consistently with the ends and purposes of the First
Amendment. It is the right of viewers and listeners, not the right of the
broadcasters, which is paramount.”144 The Court stressed that “the right
of the public to receive suitable access to social, political, esthetic, moral,
and other ideas and experiences . . . may not constitutionally be abridged
either by Congress or by the FCC.”145 The Court reasoned that the fair-
ness doctrine and the right of reply regulations were acceptable rules of
procedure to ensure “the First Amendment goal of producing an informed
public capable of conducting its own affairs.”146 The Court recognized
that an orderly procedure can produce a more informed public than can
unregulated communicative laissez-faire.
In the opening decades of the twentieth century, when public opinion
became the foundation for representative government as well as for the
creation of judicially enforceable First Amendment rights, faith in pub-
lic opinion emerged simultaneously with a profound critique of public
opinion. Many feared that public opinion would be vulnerable to “the
manufacture of consent” based upon “propaganda” and “censorship.”147

Deeply moved by the perversions of public sentiment during World War I,
Walter Lippmann in his 1922 masterpiece Public Opinion spelled out mod-
ern techniques for the manipulation of popular thought, stressing the inca-
pacity of ordinary citizens to assimilate and understand the information
necessary for self-governance. Lippmann’s insights have since given birth
to a cottage industry dedicated to illustrating the limitations and vulner-
ability of public opinion.
Taken to its logical conclusion, Lippmann’s insights undercut the
very aspiration to self-determination. Like most Americans, however,
Lippmann was unprepared to accept a government controlled by Platonic
Guardians.148 He was therefore moved to stress the need for “a procedure”
by which popular intelligence could be educated.149 He imagined forums
of discussion, like those elaborated by Meiklejohn or Red Lion, in which
there would be a “chairman or mediator, who forces the discussion to
deal with the analyses supplied by experts,” a procedure analogous to “the
essential organization of any representative body dealing with distant mat-
ters.”150 The insight that public opinion might require orderly educational
procedures precisely in order to become more informed thus arose in our
history at about the same time as the insight that public opinion requires
a framework of judicially enforceable First Amendment rights.
We can learn from Meiklejohn’s scholarship that if we are to take
seriously the constitutional value of informed public decision making,
we ought not commit ourselves to a rule that forbids discrimination
between speakers. Citizens United thus has it exactly backward. Public
decision making is best facilitated by careful rules of procedure, like those
we employ in courtrooms, legislative hearings, or classrooms. All such pro-
cedures discriminate among speakers. This insight underlies the conclusion
of the Canadian Supreme Court that election expenditures ought to be
carefully regulated in ways that differentiate between speakers:
The question, then, is what promotes an informed voter? For voters to

be able to hear all points of view, the information disseminated by third
parties, candidates and political parties cannot be unlimited. In the
absence of spending limits, it is possible for the affluent or a number
of persons or groups pooling their resources and acting in concert to
dominate the political discourse. The respondent’s factum illustrates
that political advertising is a costly endeavour. If a few groups are able
to flood the electoral discourse with their message, it is possible, indeed
likely, that the voices of some will be drowned out. . . . Where those
having access to the most resources monopolize the election discourse,
their opponents will be deprived of a reasonable opportunity to speak
and be heard. This unequal dissemination of points of view undermines
the voter’s ability to be adequately informed of all views.151
Our constitutional structure differs from that of Canada because we

classify election speech as public discourse. We protect election speech
to serve the constitutional value of democratic legitimation rather than
that of informed public decision making.152 But the essential point, as I
have argued, is that democratic legitimation is not at stake in the speech
of ordinary commercial corporations. With regard to such speech, the
correct First Amendment value to adopt is that of informed public deci-
sion making. The Court adopted this constitutional value as its lodestar
in the Red Lion decision, in which democratic legitimation was also not
at stake. With regard to the speech of ordinary commercial corporations,
the government ought to be free to regulate speech to promote informed
public decision making, which frequently involves thoughtful and effec-
tive regulations that differentiate among speakers.
V
In the course of its opinion, the Court in Citizens United makes a thought-
ful observation. It writes:
The Court has upheld a narrow class of speech restrictions that operate
to the disadvantage of certain persons, but these rulings were based on
an interest in allowing governmental entities to perform their func-
tions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683
(1986) (protecting the “function of public school education”); Jones v.
North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (1977)
(furthering “the legitimate penological objectives of the corrections
system” (internal quotation marks omitted)); Parker v. Levy, 417 U.S.
733, 759 (1974) (ensuring “the capacity of the Government to dis-
charge its [military] responsibilities” (internal quotation marks omit-
ted)); Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 557 (1973)
(“[F]ederal service should depend upon meritorious performance
rather than political service”). The corporate independent expendi-
tures at issue in this case, however, would not interfere with govern-
mental functions, so these cases are inapposite. These precedents stand
only for the proposition that there are certain governmental functions
that cannot operate without some restrictions on particular kinds of
speech. By contrast, it is inherent in the nature of the political process
that voters must be free to obtain information from diverse sources in
order to determine how to cast their votes. At least before Austin, the
Court had not allowed the exclusion of a class of speakers from the
general public dialogue.153
The cases cited by the Court stand for a simple proposition. When gov-
ernment creates institutions in order to accomplish specific ends, it must
instrumentally organize persons in such institutions so as to accomplish
the relevant “governmental functions.” The state must manage the behav-
ior of persons within such institutions, which means that it must also man-
age their speech. Managing persons will inevitably entail discriminating
between persons and viewpoints.154 Within a public school, teachers may
call on some students to speak, but not recognize other students; within a
prison, guards may authorize the speech of some prisoners, but not others;
within a bureaucracy, some employees may be allowed to speak, but others
required to listen; within a courtroom, one witness may be authorized to
testify, but not another.
We might generalize these observations by saying that within state insti-
tutions the government possesses what I shall call managerial authority to
regulate speech in ways that would be impermissible in public discourse.
Managerial authority rests on the necessity of supervising speech in order
to accomplish the instrumental function of a state institution. Within a
school, speech must be regulated so as to achieve the task of education;
within a prison, to accomplish the purpose of security or rehabilitation;
within a bureaucracy, to attain the goal for which the bureaucracy has been
created; within a courtroom, to realize the value of justice.
Managerial authority is typically exercised merely upon a showing
of functional need. The scope of managerial authority is defined by the
boundaries of the organization within which it is exercised. These bound-
aries define what for First Amendment purposes we might designate as a
managerial domain. Managerial domains are inevitable in modern states
because they are necessary to achieve the very goals that government has
democratically decided to pursue.
Elections are institutions designed to accomplish a purpose. Elections
transform public opinion into legitimate public will. They are “the means
through which a free society democratically translates political speech
into concrete governmental action.”155 There are a multitude of ways in

which elections can work this transformation,156 but elections, like any
government institution, must manage speech in order to accomplish their
designated purpose.
In holding that Hawaii’s ban on write-in voting did not violate the
First Amendment rights of voters, for example, the Court affirmed that
“common sense, as well as constitutional law, compels the conclusion that
government must play an active role in structuring elections; ‘as a practi-
cal matter, there must be a substantial regulation of elections if they are
to be fair and honest and if some sort of order, rather than chaos, is to
accompany the democratic processes.’ ”157 “Elections and related demo-
cratic processes are pervasively regulated (far more so than the general
realm of public debate). In the more visible foreground, states print ballots,
determine the conditions under which candidates and parties attain bal-
lot access, and organize and structure the process of voting. In the back-
ground, prior decisions have been made about the underlying structure of
elections and representative institutions.”158
Within the managerial domain of an election, the state is entitled to
regulate speech so as to preserve the purpose of the election. “ ‘A State
indisputably has a compelling interest in preserving the integrity of its
election process.’ Confidence in the integrity of our electoral processes
is essential to the functioning of our participatory democracy.”159 To the
end of preserving electoral integrity, the state can and must restrict speech
that would otherwise be viewed as public discourse. Throughout much
of the nineteenth century, voters expressed their preferences by using
ballots privately printed by political parties. Because voters’ preferences
were revealed by the color and shape of their ballots, bribery and coercion
thrived, and elections lost integrity. The state responded by adopting the
Australian ballot, which was formulated and printed by the state and was
cast in secret.160 The Australian ballot restricted the rights of political par-
ties to express themselves through privately printed ballots.
Decades later, when distrust of private political parties threatened
to undermine the purpose of elections, the state moved to assert “pub-
lic control and regulation of the machinery of party nominations,” most
especially through direct primaries.161 The direct primary regulated the
associational rights of private political parties, which heretofore had been
free to nominate candidates as they wished, but which after the direct
primary were obliged to follow government rules if they wished to access
the state-organized Australian ballot. Decades after the creation of direct
primaries, when it was perceived that electoral integrity was once again
threatened because racial discrimination made primaries responsive to
white public opinion rather than to public opinion, the Court itself chose
to intervene in the White Primary Cases to end the discrimination caused
by the private political speech of private political parties.162 It is well recog-
nized that “election laws invariably ‘affec[t]—at least to some degree—the
individual’s right . . . to associate with others for political ends.’ ”163
Elections, like all state institutions, must regulate speech within their
managerial domain in order achieve their governmental function. The
Court has “ ‘repeatedly upheld reasonable, politically neutral regulations
that have the effect of channeling expressive activit[ies] at the polls.’ ”164
The state is explicitly given considerable latitude to regulate speech within
polling places. It does so in order to ensure the legitimacy of the electoral
process. Within the polling place, the state can authorize the speech of
some persons (election workers), but deny the speech of others (partisan
advocates). What justifies such regulation is the necessity for elections to
fulfill their purpose of freely and legitimately choosing candidates.
It is sometimes controversial whether speech occurs inside or outside
of the managerial domain of a state institution. Institutional boundaries
are not marked with signposts. Organization theory regards “organiza-
tions as open systems,” whose “boundaries must necessarily be sieves, not
shells, admitting the desirable flows and excluding the inappropriate or
deleterious elements.”165 Boundaries are therefore “very difficult to delin-
eate in social systems, such as organizations.”166 Because all organizations
are dependent on their environments, they have strong incentives to reach
out and extend their “control” over important external resources,167 push-
ing their already open boundaries into a state of constant motion.
The porous quality of organizational boundaries is visible in the Court’s
cases establishing managerial authority. The Court has held that a police
department can punish a raunchy video made by a police officer on private
time and in a private location, in private dress and privately distributed
through eBay, on the mere ground that the video was “detrimental to the
mission and functions of the employer.”168 The Court has held that a pri-
vately funded and maintained mailbox can be regulated as if it were Post
Office property, on the ground that mailboxes are “an essential part of the
Postal Service’s nationwide system for the delivery and receipt of mail,”169
and must be “under the direction and control of the Postal Service”170 if
the service is “to operate as efficiently as possible a system for the delivery
of mail.”171 The Second Circuit has held that a public school can punish a
student for speech distributed through an independent blog posting made

from a private computer at home during nonschool hours, so long as pun-
ishment is necessary in order to maintain institutional discipline within
the school.172
Cases such as these illustrate that when exercising managerial authority,
the state can regulate speech upon a showing of functional need, in con-
trast to the more compelling interests that must be demonstrated before
the state can regulate public discourse.173 They also illustrate that the man-
agerial domain of a state institution can extend far beyond its ordinary
physical geography. State institutions exercise managerial authority over
speech that does not occur on state property, that does not occur during
regular working hours, that is not clothed with the accoutrements of offi-
cial uniforms or other indicia of official control or direction. Courts seem
to locate the institutional boundaries of managerial authority on the basis
of their perception of an institution’s functional needs.
This same pattern is discernible in the history of elections. Before the
Australian ballot, political parties communicated by printing and orga-
nizing private ballots. Because the state needed to maintain the effective-
ness of elections, the state preempted this heretofore private speech and
converted ballots into a “public expense.”174 After the Australian ballot,
the state was empowered to regulate the ballot in functional ways. Before
the state created the direct primary, nominations for public office were
decided by the voluntary procedures of private political parties. When
these procedures caused the public to lose confidence in elections, the state
expanded the boundaries of the election process to preempt the associative
rules necessary to qualify candidates for the state-produced Australian
ballot.175
It follows from this reasoning that speech within elections can be regu-
lated to achieve the purpose of elections. The speech that accompanies
elections is usually classified as public discourse, and so the assertion of
managerial control over electoral speech is typically quite limited. The
managerial boundaries of elections are tightly constricted so as to maximize
the possibility that public discourse might achieve the good of democratic
legitimation. We know, however, that the speech of ordinary commercial
corporations does not form part of public discourse. Bellotti teaches that
such speech is constitutionally valuable only because it facilitates informed
public decision making.
The managerial domain is the First Amendment concept that best
expresses this insight. There can be no objection to establishing a managerial
domain authorizing government to regulate the electoral speech of ordi-

nary commercial corporations to the end of promoting informed public
decision making. The boundaries of such a domain should be pegged to the
necessities of achieving this purpose. The structure of such a domain would
no doubt follow Meiklejohnian principles, which we employ whenever we
are serious about actually educating an audience, whether in a courtroom,
legislature, or classroom. How corporate speech might best be organized
so as to educate the public about electoral questions is an empirical issue,
requiring a working knowledge of the material facts. It cannot be deter-
mined on the basis of abstract doctrinal rules.
VI
The Court in Citizens United writes as if First Amendment analysis ends
with the observation that §441b of the BCRA prohibits public discourse
and must therefore receive the strictest form of First Amendment scrutiny.
The Court finds §441b without compelling justification and consequently
unconstitutional.
If the arguments I have thus far advanced are correct, the Court’s entire
framework of analysis is flawed. First, and most important, the Court fails
to acknowledge the fundamental significance of electoral integrity as a jus-
tification for state regulation of campaign expenditures. Electoral integrity
is necessary for the First Amendment rights that the Court believes it is
protecting. It is necessary for contemporary American self-government.
Second, to the extent that the Court glimpses the possibility of a state
interest in electoral integrity, it falsely imagines that electoral integrity is
a matter of law, rather than of fact. Electoral integrity is contingent on
government design and institutions. Governments in the United States
have continuously altered the structure of elections in order to maintain
the supremely precious resource electoral integrity.
Third, the Court writes as if §441b of the BCRA regulates public dis-
course. But §441b does not control the speech of natural persons. Section
441b does not create an inert people. As applied to ordinary commercial
corporations (as distinct from expressive associations that happen to be
corporations), §441b merely regulates entities that provide constitution-
ally valuable information to the public. As in commercial speech, strict
scrutiny is thus an inappropriate standard of review.
Fourth, it is an empirical question whether §441b actually diminishes
the flow of useful information to the public. Section 441b permits the
distribution of information underwritten by corporate PACS. Citizens
United presumes the public will be better informed after it strikes down
§441b than in the decades before the Citizens United decision. But this is
far from obvious.176
Fifth, the Court ignores the possibility that the speech of ordinary
commercial corporations might be constitutionally organized into a
managerial domain dedicated to informed public decision making. Such
speech is constitutionally valuable only because it informs the public, and
Meiklejohn’s scholarship demonstrates that when we truly care about
informing the public, we create domains that do not typically forbid dis-
tinctions among speakers.
Sixth, assuming that §441b actually produces a less informed public,
this loss must be set against whatever gains in electoral integrity §441b
may promote. Since the beginning of the twentieth century, the American
public has associated unrestricted corporate electoral expenditures with
the loss of electoral integrity. In Citizens United five members of the Court
brush this history aside without so much as noticing the constitutional
stakes. The constitutionality of §441b cannot be assessed unless the poten-
tial informational losses caused by §441b are somehow balanced against
the necessity of preserving electoral integrity.
Electoral integrity does not, like quid pro quo corruption, turn on
whether officials promise political favors in return for dollars.177 Electoral
integrity resides instead in the confidence of the people that elected offi-
cials attend to public opinion. It has been rightly observed that the state’s
“interest in protecting public confidence ‘in the integrity and legitimacy
of representative government’ ” is of the highest order, because “public
confidence in the integrity of the electoral process . . . encourages citizen
participation in the democratic process.”178
Electoral integrity is a special kind of constitutional virtue. It depends
upon what people actually believe.179 Americans now accept our govern-
ment as legitimate because we believe in electoral integrity. Electoral integ-
rity grounds the authority of the state. Other constitutional rights, such as
those that implement the “equally effective voice”180 that every citizen is
guaranteed in elections, do not have this subjective structure. If citizens sin-
cerely believe that certain groups are too influential in elections, this belief
is not itself a reason to burden the right of these groups to vote.181 Whereas
the principle of equal influence turns on the objective facts of equality, the
principle of electoral integrity turns on what people actually believe.
Construed in the most narrow possible way, the constitutionality of
§441b might be assessed by balancing the informational losses inflicted
by restrictions on independent corporate campaign expenditures against

the gains in public confidence achieved by prohibiting independent cor-
porate campaign expenditures. These gains might include both increased
participation and increased trust that elections select for officials attentive
to public opinion. Understanding this trade-off would require canvassing
relevant contingent empirical facts about beliefs and about the circulation
of information.
In Turner Broadcasting System v. FCC, the Court considered a fed-
eral statute that required cable television systems to dedicate channels to
local broadcast television stations in order to promote “the widespread
dissemination of information from a multiplicity of sources.”182 Although
the legislation compromised the asserted First Amendment rights of cable
owners, it was intended to serve an important First Amendment inter-
est. Viewing the legislation as a content-neutral regulation that advanced
important governmental interests unrelated to the suppression of free
speech, the Court held that substantial deference ought to be given to
congressional findings involving predictive judgments:
In reviewing the constitutionality of a statute, “courts must accord

substantial deference to the predictive judgments of Congress.” Our
sole obligation is “to assure that, in formulating its judgments, Con-
gress has drawn reasonable inferences based on substantial evidence.”
As noted in the first appeal, substantiality is to be measured in this
context by a standard more deferential than we accord to judgments of
an administrative agency. . . . We owe Congress’ findings deference in
part because the institution “is far better equipped than the judiciary
to ‘amass and evaluate the vast amounts of data’ bearing upon” legisla-
tive questions. . . . This is not the sum of the matter, however. We owe
Congress’ findings an additional measure of deference out of respect
for its authority to exercise the legislative power. Even in the realm of
First Amendment questions where Congress must base its conclusions
upon substantial evidence, deference must be accorded to its findings
as to the harm to be avoided and to the remedial measures adopted for
that end, lest we infringe on traditional legislative authority to make
predictive judgments when enacting nationwide regulatory policy.183
I note that congressional legislation regulating independent campaign

expenditures for the purpose of enhancing electoral integrity, like the leg-
islation at issue in Turner, serves important First Amendment interests
that are unrelated to the suppression of expression. Such legislation would

thus be content neutral, at least under many of the definitions of content
neutrality that the Court has advanced in its doctrine.184 Turner holds
that such legislation should be valid if based upon cogent congressional
fact-finding, which ought to receive “substantial deference.”
I note further that the question of judicial deference acquires distinc-
tive resonance in the context of electoral integrity. Electoral integrity con-
cerns the foundational democratic legitimacy of the state. Although the
assessment of electoral integrity requires knowledge of empirical facts,
it ultimately depends upon political judgment.185 Whether the people
trust that their representatives are responsive to public opinion cannot
be reduced to voting statistics or opinion polls. Such facts are no doubt
relevant, but, as I have argued, electoral integrity requires an informed
interpretation of the contents of public opinion, which in no small mea-
sure must be constructed by an interpreter.186
Judges are not well positioned to make this kind of political judgment.
Congress, by contrast, is composed of politicians from diverse parties and
geographical regions. Of the three branches of the federal government,
Congress is best situated to assess electoral integrity. Of course, Congress
consists of incumbents who have a common interest in preserving their
own incumbency. In reviewing campaign finance legislation, courts should
be alert to the danger that legislation is designed to protect incumbents
rather than to sustain electoral integrity. But this suspicion is not incon-
sistent with a strong margin of judicial appreciation for the necessarily
political judgment involved in assessing electoral integrity.
I shall conclude this lecture by observing that the constitutional issues
posed by Citizens United might be considered from a somewhat broader
perspective than whether the gains in electoral integrity caused by prohib-
iting independent corporate campaign expenditures outweigh the infor-
mational losses created by restrictions on independent corporate campaign
expenditures. Instead of analyzing the constitutionality of §441b in isola-
tion, we might consider how the larger question of electoral campaigns
might be theorized under the First Amendment. The most useful con-
ceptual tool for this question is that of the managerial domain, which is a
traditional and widely used constitutional concept recognized in Citizens
United itself.
The compromise struck by Buckley has proved unstable and unsettling.
Some would say that it has produced a disastrous electoral environment.
Because Buckley prohibited the state from regulating independent expen-

ditures while allowing it to regulate contributions, it “produced a sys-
tem in which candidates face an unlimited demand for campaign funds
(because expenditures generally cannot be capped) but a constricted sup-
ply (because there is often a ceiling on the amount each contributor can
give). . . . [T]he result is an unceasing preoccupation with fundraising.”187
Forty years ago a majority of Americans believed that the dependence
of elections on private funding held great dangers for the American
Republic.188 In succeeding years American political campaigns have grown
exponentially more expensive, and concomitant dangers have accordingly
multiplied. The public cannot help but worry that he who pays the piper
will call the tune. In a recent decision the Court has even gone so far as
to hold that it would violate the “appearance of partiality” required by
the Due Process Clause for a judge to decide the case of someone who
had made significant independent expenditures in support of the judge’s
reelection campaign.189 It is not difficult to understand why the Buckley
compromise has put public confidence intrinsically and perennially at risk.
A truly systemic risk to electoral integrity might require a more
comprehensive constitutional approach. We might kick aside the rot-
ten floorboards of Buckley and begin our analysis from the premise that
electoral integrity remains fundamentally threatened so long as campaign
expenditures remain unregulated. The threat derives not from corporate
expenditures alone, but from all campaign expenditures, including those
of wealthy candidates and supercharged PACS. Because election speech is
public discourse, we ordinarily guarantee persons the right to participate
in the manner of their choice. We do not permit expenditure limitations.
But if the absence of such limitations is threatening to undermine the
electoral integrity of the entire system, we undermine the very reason we
ordinarily protect uncontrolled independent expenditures. We thus face a
deep paradox. If we prevent government control over independent expen-
ditures, we undermine the constitutional values that such expenditures are
meant to embody. But if we permit government control over independent
expenditures, we regulate in a manner that is inconsistent with democratic
legitimation.
A paradox such as this does not disappear because we ignore it. Sooner
or later we must face it down. If we ultimately decide that democratic
values are best sustained by regulating independent expenditures, then
we must construct a managerial domain to control such expenditures. The
domain would not only offer constitutional guidance about permissible

government regulations, but also limit potential interference with public
discourse outside the domain. Just as the state presently possesses manage-
rial authority to regulate the ballot, so the state might be constitutionally
authorized to manage election expenditures in the interest of sustaining
public confidence that elections will select officials who are attentive to
public opinion. Whether we take this step should depend upon a compara-
tive assessment of the constitutional dangers of action versus inaction, and
this in turn should depend upon the relevant facts of the matter.
Although managerial authority in this context may sound quite alien
and strange, because it would displace the public discourse that we nor-
mally expect to accompany electoral contests, it is in fact practiced by
many democracies in the world. These democracies conceive elections as
discrete temporal periods that are bounded by sharp beginnings and ends.
They authorize managerial public control of electioneering within these
designated electoral periods.190 The state may regulate to ensure that the
public receives a fair and comprehensive education, in much the same way
that in the United States courts presently control the flow of information
to juries so that they can reach informed and fair decisions.191
Creating a distinct managerial domain for elections requires “drawing
a line between elections and politics.”192 The “crucial issue” is to establish
a “boundary between [an] institutionalized electoral realm and general
civic or public life.”193 Our present law already tentatively draws such
lines. We create disclosure requirements that apply to campaign-related
expenditures (as well as contributions), but not to expenditures for public
discourse generally.194 We impose disclosure obligations on speakers that
are triggered only during an “election.”195 We impose obligations on media
that are triggered only during an “election.”196
BCRA itself attempts to establish a boundary between politics and
elections by defining as an “electioneering communication” any broad-
cast, cable, or satellite communication that refers to a candidate for federal
office and that is aired within thirty days of a federal primary election or
sixty days of a federal general election in the jurisdiction in which that can-
didate is running for office.197 BCRA seeks to impose obligations on elec-
tioneering communications that government can not impose on speech
generally.198
BCRA’s ungainly definition of an electioneering communication
should be understood as a rough attempt to distinguish communications
within an election from political speech generally. It is an early, halting

effort to define a distinct managerial domain for American elections.
BCRA’s efforts in this regard were blasted by the Court in an important
2007 decision holding that because BCRA’s definition of an electioneering
communication “burdens political speech, it is subject to strict scrutiny.”199
In essence the Court held that public discourse could not be preempted
by any distinct managerial domain for elections. Apparently, the Court
did not believe that systematic threats to electoral integrity were suffi-
cient to warrant expanding the managerial authority necessary to regulate
elections.
Sadly, the Court reached this conclusion without ever explaining its
reasons. Restrictions on public discourse are subject to strict scrutiny to
protect the precious value of democratic legitimation. But electoral integ-
rity is also essential to democratic legitimation. First Amendment rights
are meaningless without electoral integrity. It follows that the question of
whether the First Amendment does or does not require a distinct domain
for elections cannot be answered by reference to the First Amendment
itself. It cannot be settled by any doctrinal test. The question can be settled
only by the relevant facts of the matter. And these were never considered
by the Court. Instead, as in Citizens United, the Court chose to rest its
decision entirely on formal and abstract First Amendment doctrine.
In these Tanner Lectures I do not argue that the facts lead inevitably to
the conclusion that elections should constitutionally be regarded as a dis-
tinct managerial domain. I am not equipped to pursue the serious empirical
inquiry that would be necessary to address this issue. I do not even argue
that the much simpler question presented in Citizens United must necessar-
ily be settled in one way or another. I do not contend that gains in electoral
integrity from restricting independent corporate campaign expenditures
constitutionally outweigh the informational costs created by §441b.
When pressed, many opponents of campaign finance reform do not
contest the nation’s compelling constitutional interest in preserving elec-
toral integrity. They instead worry that our tools for discerning voter trust
and confidence are primitive, inexact, and diffuse, so that recognizing a
constitutionally compelling interest in electoral integrity threatens to
throw First Amendment rights to the mercy of the political process. This
would indeed be a worrisome outcome. But courts can be alert to this
danger even while remaining vigilant to the equally alarming threat that
First Amendment rights might themselves be undermined by the loss of
electoral integrity. The Montana case, which I discussed earlier,200 seems

to me a case in point. The historical loss of electoral integrity documented
by the Montana Supreme Court ought to be obvious and disturbing.
In these Tanner Lectures I do not point the way forward to specific
measures of reform. My own personal policy inclination is to establish
effective public support for electoral campaigns, rather than limitations on
campaign spending.201 I would require TV and radio stations to provide
free time for electioneering communication as a condition of receiving
their broadcast licenses. But in the past Congress has chosen to pursue a
different policy, and in these lectures I am concerned only with how this
policy ought constitutionally to be evaluated.
My conclusion is that the Court in its recent campaign finance cases
has posed the wrong constitutional questions and has failed to consider
the material constitutional facts. The Court has focused far too narrowly
on the opaque question of corruption and has never crisply addressed the
First Amendment necessity of electoral integrity. It has never articulated
doctrine adequate to recognize the constitutional necessity of restoring
public confidence and trust in representational government. Barricaded
behind formidable formal First Amendment rules such as strict scrutiny or
antidiscrimination, the Court has never appreciated, much less considered,
the true First Amendment stakes that underlie contemporary campaign
finance legislation.
A line of cases this misguided about matters of such fundamental
importance to American politics is a frightful thing. In the long run, self-
government will not be denied. It does not require a prophet to foresee a
constitutional impasse of potentially tragic proportions.
Notes
1. 130 S.Ct. 876 (2010).
2. Ibid. at 898.
3. On Liars, in Michel de Montaigne, Essays, translated by J. M. Cohen (1958), 31.
4. Buckley v. Valeo, 424 U.S. 1, 14 (1976).
5. Nixon v. Shrink Missouri Government PAC, 528 U.S. 397, 398–99 (2000) (Ste-
vens, J. dissenting). See J. Skelly Wright, “Politics and the Constitution: Is Money
Speech?,” Yale Law Journal 85 (1976); Jim Leach, “Citizens United: Robbing
America of Its Democratic Idealism,” Daedalus 142 (Spring 2013): 96–97.
6. The argument is elaborated in Robert Post, “Recuperating First Amendment
Doctrine,” Stanford Law Review 47 (1995).
7. Jed Rubenfeld, “The First Amendment’s Purpose,” Stanford Law Review 53
(2001); Elena Kagan, “Private Speech, Public Purpose: The Role of Governmental
Motive in First Amendment Doctrine,” University of Chicago Law Review

63 (1996).
8. Sorrell v. IMS Health, Inc., 131 S.Ct. 2653, 2667 (2011).
9. See, for example, Simon & Schuster, Inc. v. Members of New York State Crime
Victims Bd., 502 U.S. 105 (1991), in which the Court struck down under the
First Amendment the New York “Son of Sam” law, which required that the
income received by authors accused or convicted of a crime be put into an
escrow account for the benefit of the victims of the crime, whenever such authors
described the reenactment of their crime by way of a movie, book, magazine
article, tape recording, phonograph record, radio or television presentation, live
entertainment of any kind, or whenever they expressed their thoughts, feelings,
opinions, or emotions regarding their crime. See also United States v. National
Treasury Employees Union, 513 U.S. 454 (1995), striking down a ban on receipt
of honoraria by federal employees.
Those defending the position that First Amendment scrutiny should not
apply to campaign finance regulation sometimes assert the distinction between
the regulation of “pure speech” and the regulation of “a form of conduct related
to speech—something roughly equivalent to the physical act of picketing.”
Wright, “Politics and the Constitution,” 1006. I think the distinction is inde-
fensible. There is no such thing as “pure speech.” All communication requires a
physical substrate, whether it is the sound vibrations of oral speech or the paper
required by old-fashioned books or leaflets. The regulation of the substrate is
not separable from the regulation of the speech.
10. See Ladue v. Gilleo, 512 U.S. 43 (1994); and Watchtower Bible and Tract Society
v. Village of Stratton, 536 U.S. 150, 163 (2002).
11. The Court has in at least one instance struck down state campaign finance regu-
lation on this basis. Randall v. Sorrell, 548 U.S. 230 (2006).
12. Citizens United, 130 S.Ct. at 886.
13. Ibid. at 898.
14. Reynolds v. Sims, 377 U.S. 533, 565 (1964). In actuality, the story may be a bit
more complicated. Every court to consider the issue has held that jurisdictions
may, consistent with the “one person, one vote” principle of Reynolds, design
districts with equal total populations, rather than equal numbers of eligible vot-
ers. See Chen v. City of Houston, 206 F.3d 502, 528 (5th Cir. 2000); Garza v.
County of Los Angeles, 918 F.2d 763, 775 (9th Cir. 1990); and Calderon v. City of
Los Angeles, 481 P.2d 489, 494 (Cal. 1971). Judge Kozinski has referred to this
as a choice between “electoral equality” and “equality of representation.” Under
“electoral equality,” each eligible voter must have an equally weighted vote; under
“equality of representation,” each resident must have an equal ability to petition
for constituent services. Garza, 918 F.2d at 781 (Kozinski, J., dissenting).
15. David A. Strauss, “Corruption, Equality, and Campaign Finance Reform,”
Columbia Law Review 94 (1994); Frank Pasquale, “Reclaiming Egalitarianism
in the Political Theory of Campaign Finance Reform,” University of Illinois Law
Review 2008, no. 2 (2008); Edward B. Foley, “Equal-Dollars-per-Voters: A Con-
stitutional Principle of Campaign Finance,” Columbia Law Review 94 (1994).
16. Harper v. Canada, 2004 SCCC 33, at ¶ 62.
17. Ibid. The Canadian Supreme Court conceives the problem of campaign finance
regulation as exemplifying a fundamental tension between what it calls “the
democratic values of freedom of expression” (Libman v. Quebec, [1997] 3 S.C.R.
569, at ¶ 61), and what it calls the “the right to ‘effective representation’ ” (Harper,
2004 S.C.J. at ¶ 68). The egalitarian model adopted by Harper privileges the

latter value.
18. 424 U.S. at 48.
19. Ibid. at 48–49.
20. Ibid. at 49n55.
21. In the United States this rule is violated by the election of the president by the
Electoral College.
22. See, for example, Synder v. Phelps, 131 S.Ct. 1207, 1220 (2011); Rosenberger v.
Univ. of Va., 515 U.S. 819, 831 (1995); Falwell, 485 U.S. at 55.
23. First Amendment rights are a necessary but not sufficient condition for the
creation of democratic legitimacy.
24. This is a difficult concept to articulate within the context of representation.
As David Runciman observes, “When a government is voted out of office fol-
lowing . . . elections, many individuals will have voted for the defeated party, yet
we do not say that these individuals altogether cease to be represented by the
new government that replaces their preferred choice. This is because we do not
believe that governments simply represent individuals and their choices; they
also represent the people as a whole.” David Runciman, “The Paradox of Politi-
cal Representation,” Journal of Political Philosophy 15 (2007): 102. But how can
it be that governments “represent” those who did not vote for them? Runciman
concludes that we must draw a distinction “between the public on whose behalf
political representatives act, and the public whose opinions of the actions of
those representative determine whether or not they can plausibly claim to be rep-
resenting the people as a whole” (106). The views of the latter public, however,
cannot by definition be captured by any election, since every election will have
winners and losers. It is more accurate to say, therefore, that the views of the latter
public concern the general and diffuse question of democratic legitimacy, which
is not a matter of representation but rather of the legitimacy of the government
qua government. This suggests that democratic legitimacy makes possible the
legitimacy of any given election.
25. Of course, the usual qualifications apply. The First Amendment rights of one
individual must be consistent with the First Amendment rights of other indi-
viduals. Ordinary “rules of the road,” typically formulated as content-neutral
“time, place and manner” regulations, may also be applicable.
26. There may be circumstances in which participation is so unequal that those on
the short end of the draw experience their participation as meaningless. In such
cases, it is the lack of meaningful participation that is constitutionally determina-
tive, not the lack of equal participation.
27. For a more developed discussion, see Robert Post, “Democracy and Equality,”
Law, Culture, and the Humanities 1 (2005); and Robert Post, “Equality and
Autonomy in First Amendment Jurisprudence,” Michigan Law Review 95 (1997).
28. Cohen v. California, 403 U.S. 15 (1971).
29. Arizona Free Enterprise Club v. Bennett, 131 S.Ct. 2806, 2825–26 (2011) (“We have
repeatedly rejected the argument that the government has a compelling state
interest in ‘leveling the playing field’ that can justify undue burdens on politi-
cal speech. . . . ‘Leveling the playing field’ can sound like a good thing. But in
a democracy, campaigning for office is not a game. It is a critically important
form of speech. The First Amendment embodies our choice as a Nation that,
when it comes to such speech, the guiding principle is freedom . . . not whatever
the State may view as fair”). William Douglas, dissenting in the Automobile
Workers decision about twenty years before Buckley, expressed the thought this
way: “Undue influence . . . cannot constitutionally form the basis for making
it unlawful for any segment of our society to express its views on the issues of a
political campaign.” 353 U.S. at 598n2.
31. 494 U.S. 654 (1990). Austin was formally overruled in Citizens United, 130
S.Ct. at 913.
32. 494 U.S. at 660.
33. Ibid. Compare ibid. at 705–6 (Kennedy, J., dissenting) and 684–85 (Scalia, J.,
dissenting); Elizabeth Garrett, “New Voices in Politics: Justice Marshall’s Juris-
prudence on Law and Politics,” Howard Law Journal 52 (2009).
34. 494 U.S. at 660.
35. Ibid.
36. George F. Edmunds, “Corrupt Political Methods,” Forum, June 1889, 349, 350.
37. 494 U.S. at 659, quoting FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,
258 (1986). In dissent Justice Scalia critiqued this reasoning, arguing that it was
“entirely irrational. Why is it perfectly all right if advocacy by an individual bil-
lionaire is out of proportion with ‘actual public support’ for his positions?” 494
U.S. at 685 (Scalia, J., dissenting). Scalia does have a point. As Judge Calabresi has
observed in a deep and excellent opinion, “Money does not measure intensity
of desire equally for rich and poor. . . . [A] large contribution by a person of
great means may influence an election enormously, and yet may represent a far
lesser intensity of desire than a pittance given by a poor person. . . . [I]ntensity
of desire is not well-measured by money in a society where money is not equally
distributed.” Landell v. Sorrell, 406 F.3d 159, 161–62 (2d Cir. 2005) (en banc).
In favor of the Michigan statute, however, it might be said that whatever
any individual spends in favor of a particular electoral outcome, the expendi-
ture is a register of personal belief, and elections are supposed to measure the
sum of individual beliefs. Corporate expenditures, by contrast, do not express
personal beliefs, but rather corporate decision making, which elections are not
supposed to measure. Scalia may be correct that in a perfect world, all campaign
expenditures would be regulated so as to ensure, in Judge Calabresi’s words, that
“one’s intensity of desire, as expressed in monetary terms, be measured equally”
(at 162). Compared to such regulation, the Michigan statute may be underinclu-
sive. But that does not render it “entirely irrational.” It merely makes it practical.
38. See note 186 in the first lecture.
39. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to
Stop It (New York: Twelve 2011), 128.
40. Ibid., 95.
41. See ibid., 127.
42. Ibid., 128.
43. Ibid.
44. Ibid., 151.
45. Ibid., 232.
46. Ibid., 232–33.
47. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory
of Law and Democracy, translated by William Rehg (Cambridge: MIT Press,
1996), 486.
48. See Nadia Urbinati, “Democracy and Populism,” Constellations 5 (1998).
49. Carl Schmitt, Constitutional Theory, translated by Jeffrey Seitzer (Durham, NC:
Duke University Press, 2008), 272; Duncan Kelly, “Carl Schmitt’s Political The-
ory of Representation,” Journal of the History of Ideas 65 (2004).
50. Claude Lefort, Democracy and Political Theory (Minneapolis: University of

Minnesota Press, 1988), 17. See Claude Lefort, The Political Forms of Modern
Society: Bureaucracy, Democracy, Totalitarianism, edited by John B. Thompson
(Cambridge: Polity Press, 1986), 279. For Lefort this is most true at the moment
of elections. “Nothing . . . makes the paradox of democracy more palpable than
the institution of universal suffrage. It is at the very moment when popular sov-
ereignty is assumed to manifest itself, when the people is assumed to actualize
itself by expressing its will, that social interdependence breaks down and that the
citizen is abstracted from all the networks in which his social life develops and
becomes a mere statistic. Number replaces substance” (Democracy and Political
Theory, 18–19). Like Habermas, Lefort identifies the emptiness of democracy
with the “public space,” which is “negative” in that it cannot be identified with
any “group, not even the majority.” The public space is “so constituted that every-
one is encouraged to speak and to listen without being subject to the author-
ity of another. . . . This space, which is always indeterminate, has the virtue of
belonging to no one, of being large enough to accommodate only those who
recognize one another within it” (41). As such, a “democratic society is instituted
as a society without a body, as a society which undermines the representation of
an organic totality. . . . [N]either the state, the people nor the nation represent
substantial entities. Here representation is itself, in its dependence upon political
discourse and upon a sociological and historical elaboration, always bound up
with ideological debate” (18).
51. Sofia Näsström, “Representative Democracy as Tautology: Ankersmit and
Lefort on Representation,” European Journal of Political Theory 5 (2006): 332. See
Lisa Disch, “Toward a Mobilization Conception of Democratic Representation,”
American Political Science Review 105 (2011): 104 (repudiating a “metaphysics of
presence” that assumes “the fantasy of a reality that is self-evident, unmediated
by social processes, and sovereign so that it can be imagined to provide an origin
and point of reference for assessing the accuracy and faithfulness of any attempt
to represent it”); and Nadia Urbinati, Representative Democracy: Principles and
Genealogy (Chicago: University of Chicago Press, 2006), 33 (rejecting the idea
of “a single or collective sovereign that seeks pictorial representation through
election”). Bryan Garsten seeks to arrive at this same conclusion through the
logic of representation. He writes that “by locating the source of sovereignty in
an abstract entity, ‘the people,’ whose voice can be heard only through the various
interpretations of its many spokespeople, representative government instigates
constant debate about what the popular will actually is. . . . Representation prop-
erly understood requires a distinction between representatives and the people.
This is the distinction that demagogues aim to obscure whenever they claim to
fully represent the people; it the distinction that representative government,
with its indirectness, aims to preserve.” Bryan Garsten, “Representative Govern-
ment and Popular Sovereignty,” in Political Representation, edited by Ian Shap-
iro et al. (Cambridge: Cambridge University Press, 2009), 105. “Representative
government aims . . . to provoke debate about precisely what the popular will is
and thereby to prevent any one interpretation of the popular will from claim-
ing final authority” (91). This view is precisely the opposite of Schmitt’s, who
writes that “by its presence, specifically, the people initiate the public. Only the
present, truly assembled people are the people and produce the public” Schmitt,
Constitutional Theory, 272. “Public opinion,” Schmitt writes, “is the modern type
of acclamation” (275).
52. See Urbinati, Representative Democracy, 228 (“Politics keeps the sovereign in
perpetual motion, so to speak, while transforming its presence into an exquisite
and complex manifestation of political influence”). I should stress that logic
explained in the text refers to the communicative rights that define public opin-
ion, because it is through these rights that the “self ” in “self-government” is
constructed. By determining these rights, the people define the parameters of
their own self-governance. The logic does not apply to legislation that does not
apply to communicative rights, as, for example, to laws regulating property or
civil rights. Such legislation properly concerns the exercise of self-government
rather than the preconditions of self-government.
53. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality
(New York: Basic Books, 1983), 309–10.
54. Of course, defining who is constitutionally authorized to participate in public
discourse is a distinct question, which I address in below. Ordinary commercial
corporations should not be regarded as participants in public discourse.
55. Of course, the purpose and aim of First Amendment rights might change,
through the same dialogic processes that alter the meaning of other constitu-
tional provisions. See, for example, Robert Post and Reva B. Siegel, “Democratic
Constitutionalism,” in The Constitution in 2020, edited by Jack M. Balkin and
Reva B. Siegel (Oxford: Oxford University Press 2009), 25; Robert Post, “Theo-
rizing Disagreement: Reconceiving the Relationship between Law and Politics,”
California Law Review 98 1319 (2010); Reva B. Siegel, “Constitutional Culture,
Social Movement Conflict and Constitutional Change: The Case of the De Fact
ERA,” California Law Review 94 (2006). In such dialogue, the presence of the
people is constructed, as it is in every such circumstance.
56. Buckley, 424 U.S. at 25.
57. FEC v. National Conservative PAC, 470 U.S. 448, 496–97 (1985) (NCPAC).
See Davis v. FEC, 128 S.Ct. 2759, 2773 (2008).
58. There is a massive and illuminating literature on this topic. I have found espe-
cially helpful Strauss, “Corruption, Equality, and Campaign Finance Reform”;
Samuel Issacharoff, “On Political Corruption,” Harvard Law Review 124 (2010);
David A. Strauss, “What Is the Goal of Campaign Finance Reform?,” University
of Chicago Legal Forum 1995 (1995); Bruce M. Cain, “Moralism and Realism in
Campaign Finance Reform,” University of Chicago Legal Forum 1995 (1995);
Daniel Hays Lowenstein, “Campaign Contributions and Corruption: Com-
ments on Strauss and Cain,” University of Chicago Legal Forum 1995 (1995);
Thomas F. Burke, “The Concept of Corruption in Campaign Finance Law,”
Constitutional Commentary 14 (1997); Lillian R. BeVier, “Money and Politics:
A Perspective on the First Amendment and Campaign Finance Reform,” Califor-
nia Law Review 73 (1985); Dennis F. Thompson, “Two Concepts of Corruption:
Making Campaigns Safe for Democracy,” George Washington Law Review 73
(2005); Zephyr Teachout, “The Anti-corruption Principle,” Cornell Law Review
94 (2009).
59. Citizens United, 130 S.Ct. at 961 (Stevens, J., dissenting). Indeed, the Court origi-
nally introduced the antidistortion rationale as a component of the corruption
rationale. See Austin, 494 U.S. at 659–60 (“Michigan‘s regulation aims at a dif-
ferent type of corruption in the political arena”).
60. “In the context of the real world only a single definition of corruption has been
found to identify political corruption successfully and to distinguish good politi-
cal responsiveness from bad—that is quid pro quo. Favoritism and influence are
not, as the Government‘s theory suggests, avoidable in representative politics. . . .
Democracy is premised on responsiveness. Quid pro quo corruption has been,

until now, the only agreed upon conduct that represents the bad form of respon-
siveness and presents a justiciable standard with a relatively clear limiting prin-
ciple: Bad responsiveness may be demonstrated by pointing to a relationship
between an official and a quid.” McConnell v. Federal Election Com’n, 540 U.S.
93, 297 (2003) (Kennedy, J., concurring in part and dissenting in part).
61. Although the Court has occasionally employed language suggesting that the
appearance of corruption is of concern because it erodes public trust in gov-
ernment. See McConnell, 540 U.S. at 136–38; Nixon, 528 U.S. at 390; Buckley,
424 U.S. at 27; At 103–4, the Court seems to have accepted the “appearance of
corruption” rationale primarily because an appearance of corruption suggests a
high likelihood of actual corruption. See Nathaniel Persily and Kelli Lammie,
“Perceptions of Corruption and Campaign Finance: When Public Opinion
Determines Constitutional Law,” University of Pennsylvania Law Review 153
(2004): 135 (“The unique position of ‘appearance of corruption’ in the campaign
finance jurisprudence has more to do with the difficulties of proving actual cor-
ruption . . . than the importance of the state interest in combating such negative
perceptions”). On this account, the constitutional force of the “appearance of
corruption” rationale depends upon the constitutional force of the actual cor-
ruption rationale.
Several scholars have suggested harms that an “appearance of corruption”
can produce regardless of actual corruption. See Dennis F. Thompson, Ethics in
Congress: From Individual to Institutional Corruption (Washington, DC: Brook-
ings Institution Press, 1995), 125–26 (arguing that the appearance of corruption
rationale not only serves as a proxy for the corruption rationale but also pro-
motes public trust in government and, “because appearances are usually the only
window that citizens have on official conduct,” facilitates “democratic account-
ability”); Mark E. Warren, “Democracy and Deceit: Regulating Appearances of
Corruption,” American Journal of Political Science 50 (2006): 172 (“Democratic
systems of representation depend upon the integrity of appearances, not simply
because they are an indication of whether officials are upholding their public
trust, but because they provide the means through which citizens can judge
whether, in any particular instance, their trust in public officials is warranted. . . .
Likewise, institutions that fail to support citizens’ confidence in appearances
produce political exclusions and generate a form of disempowerment. Together
these failures amount to a corruption of democratic processes”); and Deborah
Hellman, “Judging by Appearances: Professional Ethics, Expressive Govern-
ment, and the Moral Significance of How Things Seem,” Maryland Law Review
60 (2001): 668 (arguing that as long as the relationship between a representative
and her constituents is conceptualized as a “joint enterprise,” “the representative
[must] avoid, where possible, providing her constituents with a reason to doubt
her. The fact that citizens are often justified in drawing conclusions on the basis
of appearances provides a reason for legislators to avoid appearing corrupt”).
62. Buckley, 424 U.S., at 26–27.
63. NCPAC, 470 U.S. at 497.
64. Ibid., at 497–98. See McCormick v. United States, 500 U.S. 257, 272–73 (1991):
Serving constituents and supporting legislation that will benefit

the district and individuals and groups therein is the everyday business
of a legislator. It is also true that campaigns must be run and financed.
Money is constantly being solicited on behalf of candidates, who run
on platforms and who claim support on the basis of their views and
what they intend to do or have done. Whatever ethical considerations
and appearances may indicate, to hold that legislators commit the fed-
eral crime of extortion when they act for the benefit of constituents or
support legislation furthering the interests of some of their constitu-
ents, shortly before or after campaign contributions are solicited and
received from those beneficiaries, is an unrealistic assessment of what
Congress could have meant by making it a crime to obtain property
from another, with his consent, “under color of official right.” To hold
otherwise would open to prosecution not only conduct that has long
been thought to be well within the law but also conduct that in a very
real sense is unavoidable so long as election campaigns are financed
by private contributions or expenditures, as they have been from the
beginning of the Nation. . . .
This is not to say that it is impossible for an elected official to com-
mit extortion in the course of financing an election campaign. Political
contributions are of course vulnerable if induced by the use of force,
violence, or fear. The receipt of such contributions is also vulnerable
under the Act as having been taken under color of official right, but only
if the payments are made in return for an explicit promise or undertak-
ing by the official to perform or not to perform an official act. In such
situations the official asserts that his official conduct will be controlled
by the terms of the promise or undertaking. This is the receipt of money
by an elected official under color of official right within the meaning of
the Hobbs Act.
This formulation defines the forbidden zone of conduct with sufficient clar-
ity. As the Court of Appeals for the Fifth Circuit observed in United States v.
Dozier, 672 F.2d 531, 537 (1982):
A moment’s reflection should enable one to distinguish, at least

in the abstract, a legitimate solicitation from the exaction of a fee for
a benefit conferred or an injury withheld. Whether described famil-
iarly as a payoff or with the Latinate precision of quid pro quo, the
prohibited exchange is the same: a public official may not demand pay-
ment as inducement for the promise to perform (or not to perform)
an official act.
See Evans v. United States, 504 U.S. 255 (1992).

65. Burke, “Concept of Corruption in Campaign Finance Law,” 128.
66. In Caperton v. A. T. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009), the Court, per
Justice Kennedy, held that large independent expenditures on behalf of a can-
didate for judicial office could so undermine public confidence in the fairness
of the candidate’s subsequent judgment as to violate the Due Process Clause.
What is particularly striking about the case is that there were no allegations of
contributions to the judge’s campaign. Instead, the allegation was that some-
one who would subsequently become a party to a case heard by the judge had
made independent expenditures on behalf of the judge’s election. The distinc-
tion between contributions and independent expenditures was so immaterial to
the potential loss of public confidence in the disinterest of the elected judicial
official that Justice Kennedy conflated the two terms throughout his opinion.
See Pamela S. Karlan, “Electing Judges, Judging Elections, and the Lessons of
Caperton,” Harvard Law Review 123 (2009): 91.
67. See, for example, Citizens against Rent Control/Coalition for Fair Housing v.
Berkeley, 454 U.S. 290, 294–99 (1981) (“Contributions by individuals to support
concerted action by a committee advocating a position on a ballot measure is
beyond question a very significant form of political expression.”).
68. See, for example, John Samples, The Fallacy of Campaign Finance Reform (Chi-
cago: University of Chicago Press, 2006).
69. Citizens United, 130 S.Ct. at 909 (quoting McConnell, 540 U.S. at 297 (Ken-
nedy, J., concurring in part and dissenting in part)). See also Colorado Repub-
lican Federal Campaign Comm. v. FEC, 518 U.S. 604, 646 (1996) (Thomas, J.,
concurring in part and dissenting in part); McConnell, 540 U.S., at 153 (“Mere
political favoritism or opportunity for influence alone is insufficient to justify
regulation”); NCPAC, 470 U.S. at 498 (“The fact that candidates and elected
officials may alter or reaffirm their own positions on issues in response to politi-
cal messages paid for by the PACs can hardly be called corruption, for one of the
essential features of democracy is the presentation to the electorate of varying
points of view”); Kathleen Sullivan, Comment, “Political Money and Freedom
of Speech,” University of California Davis Law Review 30 (1997): 680 (“Legisla-
tors respond disproportionately to the interests of some constituents all the time,
depending, for example, on the degree of their organization, their intensity of
their interest in particular issues, and their ability to mobilize voters to punish
the legislator who does not act in their interest. On one view of democratic
representation, therefore, there is nothing wrong with private interest groups
seeking to advance their own ends through electoral mobilization and lobbying,
and for representatives to respond to these targeted efforts to win election and
reelection. It is at least open to question why attempts to achieve the same ends
through amassing campaign money are more suspect, at least in the absence of
personal inurement”).
70. David Strauss, for example, has famously argued that quid pro quo contribu-
tions, as distinct from outright bribes, are not improper at all, since they amount
to nothing more than “delivering a certain number of votes.” Strauss, “Corrup-
tion, Equality, and Campaign Finance Reform,” 1373. Our opposition to quid pro
quo contributions, Strauss contends, reflects either our deeper opposition to the
inequality that quid pro quo contributions facilitate or our worry that candidates
may commit themselves to constituent interest groups and so fail to engage in the
“duty” of “deliberation” that should attach to the role of a representative.
71. Perhaps, for example, quid pro quo contributions are improper because they
require representatives to make binding promises, and such promises are incon-
sistent with the duty of a representative fully to participate in the deliberations
required by a legislative assembly. See notes 65–74 in lecture 1 and note 70 in this
lecture. But this interpretation would seem to rule out all campaign promises
and pledges, and it therefore does not seem a plausible account of representation.
See Brown v. Hartlage, 456 U.S. 45, 55–56 (1982).
Perhaps quid pro quo contributions are corrupt because it is improper for
representatives to undertake official action in return for gifts of value. The federal
antibribery statute, 18 U.S.C. §201, prohibits offering or promising “anything of
value” to any public official “with intent to influence any official act.” This view
of corruption would have far-reaching consequences. Money is one form of value,
but there are many others. Offers of money do not seem any more intrinsically
“coercive” than other forms of valuable support. See, for example, FEC v. Demo-
cratic Senatorial Campaign Committee, 454 U.S. 27, 41 (1981); Richard L. Hasen,
“Campaign Finance Laws and the Rupert Murdoch Problem,” Texas Law Review
77 (1999): 1665n80; Ofer Raban, “Constitutionalizing Corruption: Citizens
United, Its Conceptions of Political Corruption and the Implications for Judicial
Election Campaigns,” University of San Francisco Law Review 46 (2011); United
States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979). Does it follow, therefore, that a
candidate who promises to vote for legislation in return for valuable contribu-
tions like volunteer labor or a newspaper endorsement should be condemned
for “improper commitments”? Does it follow that a candidate who pledges to
support his party’s platform in return for his party’s active support is guilty of
corruption? On the whole, this is not the way that quid pro quo corruption has
been conceptualized or policed. Daniel Hays Lowenstein, “Political Bribery and
the Intermediate Theory of Politics,” UCLA Law Review 32 (1985).
Perhaps quid pro quo contributions are corrupt only because they promise
official action in return for support that is not otherwise constitutionally valu-
able. It may be valuable to our constitutional system to write editorials and to
canvass for voters, or for parties actively take part in campaigns, so that official
promises to act in return for these forms of support serve democratic ends and
should not be condemned as corrupt. But why would we regard giving financial
support to candidates as an activity that we wish to discourage or that is not
otherwise valuable? We regard charitable contributions as quite valuable. Why
are political contributions not analogous?
It may be that a candidate’s promise to take official action in return for
valuable support is corrupt because it commits the candidate to act on behalf
of only some constituents, rather than on behalf of all constituents. See, for
example, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S.Ct.
2806, 2830 (2011) (Kagan, J., dissenting). The Court has sometimes spoken of the
obligation of elected officials to represent “their constituency as a whole.” In the
context of reapportionment plans, for example, the Court has struck down dis-
tricts that appear to be drawn to provide representation of a particular racial
group: “When a district obviously is created solely to effectuate the perceived
common interests of one racial group, elected officials are more likely to believe
that their primary obligation is to represent only the members of that group,
rather than their constituency as a whole. This is altogether antithetical to our
system of representative democracy.” Shaw v. Reno, 509 U.S. 630, 648 (1993).
Yet American candidates routinely pledge to act at the behest of some of
their constituents rather than all their constituents. Constituencies are com-
monly divided. If a candidate runs on a controversial platform to battle public
employee unions, for example, it is not inconsistent with the role of an elected
representative to speak for those constituents who oppose public employee
unions, rather for the “constituency as a whole.” See note 137 in lecture 1. Can-
didates frequently pledge to act in support of those constituents who offer them
valuable support, as, for example, members of their own party.
Quid pro quo contributions might be improper because they require a can-
didate to pledge to act in response to the wishes of a fewer number of constitu-
ents than would be required to win an election. There is no opprobrium attached
to a candidate who pledges to act in a certain way, and who on the basis of that
pledge attracts enough votes to gain election. Does it follow that there would
be no objection to a candidate who receives quid pro quo contributions from an
organization representing 51 percent of her constituents? Does it equally follow
that a representative who stubbornly pledges to act on behalf of the views of a

minority of her constituents is guilty of improper behavior?
These potentially distinct interpretations are illuminated by the actual prac-
tices of justification in modern American political life. Consider how a candidate
would be judged if he were to make the following statements in the press (these
examples are inspired by the work of Daniel Lowenstein, “Campaign Contribu-
tions and Corruption”):
1. “I am voting for Statute X because if I do I shall receive a large

campaign donation.”
2. “I am voting for Statute X because if I do labor unions shall donate
labor to my reelection campaign.”
3. “I am voting for Statute X because if I do the New York Times will
endorse my candidacy.”
4. “I am voting for Statute X because if I do I shall be reelected.”
5. “I am voting for Statute X because if I do a majority of my constitu-
ents shall donate substantial campaign contributions.”
6. “I am voting for Statute X because it is in the public good.”
7. “I am voting for Statute X because my constituents want it.”
8. “I am voting for Statute X because my party supports it.”
My intuition is that it would be acceptable for a candidate to affirm proposi-

tions 6–8, but that a candidate who openly avows propositions 1–5 would suffer
from severe public opprobrium. This may be because statements 1–5 have in
common the assertion that the candidate will take official action merely because
of his personal desire to obtain (or retain) official power. By contrast, it is appro-
priate for a candidate to take official action because it is in the public good (state-
ment 6), or because it is desired by her constituents (statement 7), or because
those with whom he is politically affiliated believe that it serves the public good
(statement 8).
One can perhaps generalize from these intuitions that although political
representatives in the United States can choose to be delegates, trustees, or even
party flunkies, they cannot choose to undertake official action for the mere pur-
pose of retaining or obtaining political power. Such a purpose corrupts fundamen-
tal republican principles. See Jack M. Balkin, Living Originalism (Cambridge,
MA: Belknap Press of Harvard University Press, 2011), 244–45; Teachout, “The
Anti-corruption Principle,” 374 (“The Framers believed that an individual is
corrupt if he uses his public office primarily to serve his own ends. . . . If corrup-
tion—writ large—is the rotting of positive ideals of civic virtue and public integ-
rity, political corruption is a particular kind of conscious or reckless abuse of the
position of trust. While political virtue is pursuing the public good in public
life, political corruption is using public life for private gain. . . . A corrupt public
actor will not only consider the good in public life for himself, he will make it is
his goal and daily habit to pursue it. The public good does not motivate him”).
Perhaps Americans agree that quid pro quo contributions are corrupt
because such contributions so manifestly evidence the improper purpose of
seeking to obtain or retain power. If so, the subjectively unethical motivations
of representatives is a notoriously difficult foundation on which to institutional-
ize any general account of corruption.
72. See Dennis F. Thompson, “Two Concepts of Corruption: Making Campaigns
Safe for Democracy,” George Washington Law Review 73 (2005): 1040–46.
73. McConnell v. FEC, 540 U.S. 93, 153 (2003). See FEC v. Beaumont, 539 U.S. 146,
155–56 (2003); Heather Gerken, “Lobbying as the New Campaign Finance,”
Georgia State University Law Review 27 (2011): 1158.
74. McConnell, 540 U.S. at 154.
75. See note 64 above.
76. I agree, however, that it is improper for a representative to accept contributions
merely for the purpose of obtaining or retaining power. See note 71 above.
77. Although empirical studies purport to find that campaign donations are unlikely
to influence policy outcomes, see Steven Ansolabehere, John M. de Figueiredo,
and James M. Snyder Jr., “Why Is There So Little Money in U.S. Politics?,”
Journal of Economic Perspectives 17 (2003): 110–17, they also conclude that such
donations can have “under the radar screen” effects. See John M. de Figueiredo
and Elizabeth Gilbert, “Paying for Politics,” Southern California Law Review 78
(2005) (“What does money buy? It likely buys access, small favors, energy in
casework, intercession with regulators, and a place on the legislative agenda”).
78. Citizens United, 130 S.Ct. at 909. See also McConnell v. Federal Election Com’n,
540 U.S. 93, 297 (2003) (Kennedy, J., concurring in part and dissenting in part).
This same disagreement is also visible in the context of controversies about the
“appearance of corruption.” Compare McConnell v. FEC, 540 U.S. 93, 297–98
(2003) (Kennedy, J., concurring in part and dissenting in part), with McConnell,
540 U.S. at 153–54.
79. Citizens United, 130 S.Ct. at 908–11.
80. Nathaniel Gorham, in The Records of the Federal Convention of 1787, edited by
Max Farrand (New Haven, CT: Yale University Press, 1966), 2:381.
81. Habermas, Between Facts and Norms, 299. Among political theorists there has
been recent widespread appreciation of this fusion between the republican
and democratic traditions. See, for example, Urbinati, Representative Democ-
racy; Nadia Urbinati, “Continuity and Rupture: The Power of Judgment in
Democratic Representation,” Constellations 12 (2005); Nadia Urbinati and
Mark E. Warren, “The Concept of Representation in Contemporary Demo-
cratic Theory,” Annual Review of Political Science 11 (2008); Disch, “Toward a
Mobilization Conception of Democratic Representation”; David Plotke, “Rep-
resentation Is Democracy,” Constellations 4 (1997); Garsten, “Representative
Government and Popular Sovereignty”; Bernard Manin, Elly Stein, and Jane
Mansbridge, “On Legitimacy and Political Deliberation,” Political Theory 15
(1987). In essence, this work theorizes that representative government generates
democratic legitimacy by provoking an endless public conversation about who
truly represents the people. So far from settling political controversies, elections
keep “the political contestation going.” Näsström, “Representative Democracy
as Tautology,” 334.
82. See note 51 above. Nadia Urbinati argues that representation is structurally
important precisely because it keeps the identity of the people occluded, so that
there can be no unilateral Schmittian acclamation. “A political representative
is unique not because he substitutes for the sovereign in passing laws, but pre-
cisely because he is not a substitute for an absent sovereign (the part replacing
the whole) since he needs to be constantly recreated and dynamically linked to
society in order to pass laws.” Urbinati, Representative Democracy, 20. On this
account, representation focuses attention on the communicative structures nec-
essary to maintain representation and suppresses the possibility of a fully pres-
ent people overriding the communicative framework that constitutes public
opinion.
83. See Hanna Fenichel Pitkin, The Concept of Representation (Berkeley: University
of California Press, 1967), 222, 234 (“The representative system must look after
the public interest and be responsive to public opinion, except insofar as non-
responsiveness can be justified in terms of the public interest. . . . Our concern
with elections and electoral machinery, and particularly with whether elections
are free and genuine, results from our conviction that such machinery is neces-
sary to ensure systematic responsiveness. . . . We require functioning institutions
that are designed to, and really do, secure a government responsive to public
interest and opinion. . . . Our concern with elections and electoral machinery,
and particularly with whether elections are free and genuine, results from our
conviction that such machinery is necessary to ensure systematic responsive-
ness”). For an account of representation that stresses the need for a “two-way
communication” between representatives and constituents, see Jane Mansbridge,
“A ‘Selection Model’ of Political Representation,” Journal of Political Philosophy
17 (2009): 370.
84. For an analogous idea, formulated in terms of the “self-government rationale,”
see Richard H. Pildes, “Foreword: The Constitutionalization of Democratic
Politics,” Harvard Law Review 118 (2004): 149–50. See also Samuel Issacha-
roff, “On Political Corruption,” Harvard Law Review 124 (2010): 127–29, who
emphasizes the dangers of “clientelism.”
85. In his academic writing, Justice Breyer has advanced a closely analogous idea:
The [First] Amendment in context also forms a necessary part

of a constitutional system designed to sustain that democratic self-
government. The Amendment helps to sustain the democratic process
both by encouraging the exchange of ideas needed to make sound elec-
toral decisions and by encouraging an exchange of views among ordi-
nary citizens necessary to their informed participation in the electoral
process. It thereby helps to maintain a form of government open to
participation (in Constant‘s words, by “all the citizens, without excep-
tion”). The relevance of this conceptual view lies in the fact that the
campaign finance laws also seek to further the latter objective. They
hope to democratize the influence that money can bring to bear upon
the electoral process, thereby building public confidence in that pro-
cess, broadening the base of a candidate‘s meaningful financial support,
and encouraging greater public participation. They consequently seek
to maintain the integrity of the political process—a process that itself
translates political speech into governmental action. Seen in this way,
campaign finance laws, despite the limits they impose, help to further
the kind of open public political discussion that the First Amendment
also seeks to encourage, not simply as an end, but also as a means to
achieve a workable democracy.
Stephen Breyer, “Our Democratic Constitution,” New York University Law

Review 77 (2002): 252–53.
86. “In a fully operative democracy, people are likely to have developed the firm
expectation that they have the right to be heard, and that officials should be
responsible to their needs and take action. If people have come to feel that their
own needs, wants, interests, concerns, values, or demands are not being effec-
tively represented in the policy process, then no matter how felicitous the nature
of system outputs is perceived to be, popular resentment likely will result.” Jack
Dennis and Diana Owen, “Popular Satisfaction with Party System and Repre-
sentative Democracy in the United States,” International Political Science Review
22 (2001): 401.
87. Brown, 456 U.S. at 52. See Knox v. Service Employees Intern. Union, Local 1000,
132 S.Ct. 2277, 2288 (2012); Nevada Comm’n on Ethics v. Carrigan, 131 S.Ct. 2343,
2353 (2011) (Kennedy, J., concurring); California Democratic Party v. Jones, 530
U.S. 567, 574 (2000); Buckley, 424 U.S. at 26–27.
88. Pitkin, The Concept of Representation, 221.
89. Ibid.
90. Buckley, 424 U.S. at 27.
91. Ibid.
92. See, for example, 147 Cong. Rec. 13083 ( July 12, 2001) (statement of
Rep. DeLauro) (“Mr. Speaker, the time has come to pass meaningful campaign
finance reform. . . . [T]he bipartisan Shays-Meehan Campaign Reform Act
will . . . help us to restore the integrity to our political system. It will help us
today to restore the confidence that the American public needs to have in people
who serve in public life, restore their confidence in our government that, in fact,
we can act on behalf of the interests of the people that we represent and not
the interests of the moneyed interests in this country”); “Campaign Finance
Reform: Hearing before the Committee on House Administration, House of
Representatives,” 107 Cong. Rec. 3 (2002) (statement of Rep. Hoyer, member,
House Committee on Administration) (“Last November’s election revealed a
sharp and disturbing rise in the unregulated issue adds by third-party groups
which most of us would agree are essentially campaign adds; a doubling of soft
money contributions to political parties compared to the 1996 elections; and
one of the lowest voter turnouts in a Presidential election in more than 50 years,
due in large part perhaps to the public’s growing cynicism about the influence
of money in our political system”).
93. Lowell, Public Opinion and Popular Government, 138.
94. 148 Cong. Rec. 1709 (2002) (statement of Representative Freylinghuysen) (“This
issue is not about winning elections, it can‘t be. It is about restoring the public’s
faith and confidence in what we do. . . . It is about cleaning up a flawed system,
where whether true or not, the perception is we are all bought and sold”). The
argument was effectively made to the Court in McConnell v. FEC, 540 U.S. 93
(2003), although it was couched in the misleading language of corruption. See,
for example, Brief for Intervenor-Defendants Senator John McCain et al. at 11:
Since the Tillman Act of 1907, which prohibited corporate cam-

paign contributions, Congress has endeavored to prevent the cor-
ruption and appearance of corruption of federal elected officials by
reducing their dependence on large campaign contributions. Con-
gress’s concerns, as relevant now as they were in the time of Theodore
Roosevelt, are that public officials will be particularly attentive to the
interests of those who make large contributions to candidates and their
political parties, and that citizens will perceive such official responsive-
ness to large donors as characteristic of a degraded system that does not
deserve public confidence.
95. 528 U.S. 377, 390 (2000). See Richard L. Hasen, “Buckley Is Dead, Long Live
Buckley: The New Campaign Finance Incoherence of McConnell v. Federal
Election Commission,” University of Pennsylvania Law Review 153 (2004):

42–47. Justice Souter has been alert to the issue of electoral integrity, although
frequently he blends it with concerns about corruption and distortion. In his
dissent in WRTL, for example, he writes:
Campaign finance reform has been a series of reactions to docu-

mented threats to electoral integrity obvious to any voter, posed by
large sums of money from corporate or union treasuries, with no redo-
lence of “grassroots” about them. Neither Congress’s decisions nor our
own have understood the corrupting influence of money in politics as
being limited to outright bribery or discrete quid pro quo; campaign
finance reform has instead consistently focused on the more pervasive
distortion of electoral institutions by concentrated wealth, on the spe-
cial access and guaranteed favor that sap the representative integrity of
American government and defy public confidence in its institutions.
From early in the 20th century through the decision in McConnell,
we have acknowledged that the value of democratic integrity justifies a
realistic response when corporations and labor organizations commit
the concentrated moneys in their treasuries to electioneering.
WRTL, 551 U.S. at 522 (Souter, J., dissenting).

97. Compare Speechnow.org v. FEC, 599 F.3d 686, 694 (D.C. Cir. 2010), cert. denied
sub nom; Keating v. Federal Election Com’n, 131 S.Ct. 553(2010) (interpreting
Citizens United as holding that “as a matter of law that independent expenditures
do not corrupt or create the appearance of quid pro quo corruption,” so that
“contributions to groups that make only independent expenditures also cannot
corrupt or create the appearance of corruption”).
98. Western Tradition Partnership v. Attorney General, 363 Mont. 220, 236 (2011).
99. Jeff Wiltse, “The Origins of Montana’s Corrupt Practices Act: A More Complete
History,” Montana Law Review 73 (2012): 318–19.
100. American Tradition Partnership, Inc., v. Bullock, 132 S.Ct. 2490 (2012).
101. The dissatisfaction trends captured in the ANES and Gallup studies extends
to our institutions as well as the people who inhabit them. The ANES study
revealed a 21 percent increase in the number of citizens who said that the govern-
ment is “pretty much run by a few big interests” (from 48 percent in 2002 to 69
percent in 2008). “Is Government Run for the Benefit of All, 1964–2008,” Amer-
ican National Elections Studies (August 5, 2010), http://www.electionstudies
.org/nesguide/toptable/tab5a_2.htm. And it showed a similar 21 percent rise
in the number of people who felt that “quite a few” of the people running the
government are “crooked” (from 30 percent in 2002 to 51 percent in 2008). “Are
Government Officials Crooked, 1958–2008,” American National Elections Stud-
ies (August 5, 2010), http://www.electionstudies.org/nesguide/toptable/tab5a
_4.htm. Gallup polls show that dissatisfaction with Congress reached a record
high in 2011, with 69 percent of respondents indicating that they had “not very
much” or no “trust and confidence” in Congress and almost two-thirds of people
indicating that a majority of Congress did not deserve to be reelected. “Trust
in Government,” Gallup, http://www.gallup.com/poll/5392/trust-government
.aspx. Dissatisfaction contracted slightly last year to 64 percent (ibid.). And in
2011, 53 percent had “not very much” or no “trust and confidence” in the men
and women “who either hold or are running for elective office” (ibid.).
102. See Jeffrey Toobin, “Annals of the Law: Money Unlimited: The Chief Justice
and Citizens United,” New Yorker, May 21, 2012, 40.
103. Ibid., 40–41. On reargument of the case, then solicitor general Elena Kagan
sought to contain the damage by avowing that Congress could not in fact pro-
hibit a corporation from using funds to publish a book of express advocacy
(ibid., 44). Although firm in this conclusion, General Kagan was less than clear
about why Congress might be prohibited from banning books, and indeed in
her argument she may have conceded that Congress could prohibit corporations
from publishing pamphlets:
JUSTICE GINSBURG: May I ask you one question that was highlighted
in the prior argument, and that was if Congress could say no TV
and radio ads, could it also say no newspaper ads, no campaign
biographies? Last time the answer was, yes, Congress could, but it
didn’t. Is that—is that still the government’s answer?
GENERAL KAGAN: The government’s answer has changed, Justice
Ginsburg. (Laughter.)
GENERAL KAGAN: It is still true that BCRA 203, which is the only
statute involved in this case, does not apply to books or anything
other than broadcast; 441b does, on its face, apply to other media.
And we took what the Court—what the Court’s—the Court’s
own reaction to some of those other hypotheticals very seriously.
We went back, we considered the matter carefully, and the govern-
ment’s view is that although 441b does cover full-length books that
there would be quite good as-applied challenge to any attempt to
apply 441b in that context.
And I should say that the FEC has never applied 441b in that
context. So for 60 years a book has never been at issue. . . .
CHIEF JUSTICE ROBERTS: But we don’t put our—we don’t put our
First Amendment rights in the hands of FEC bureaucrats; and if
you say that you are not going to apply it to a book, what about a
pamphlet?
GENERAL KAGAN: I think a—a pamphlet would be different. A pam-
phlet is pretty classic electioneering, so there is no attempt to say
that 441 b only applies to video and not to print. It does—
JUSTICE ALITO: Well, what if the particular—what if the particu-
lar movie involved here had not been distributed by Video on
Demand? Suppose that people could view it for free on Netflix over
the internet? Suppose that free DVDs were passed out. Suppose
people could attend the movie for free in a movie theater; suppose
the exact text of this was distributed in a printed form. In light of
your retraction, I have no idea where the government would draw
the line with respect to the medium that could be prohibited.
GENERAL KAGAN: Well, none of those things, again, are covered.
JUSTICE ALITO: No, but could they? Which of them could and which
could not? I understand you to say books could not.
GENERAL KAGAN: Yes, I think what you—what we’re saying is that
there has never been an enforcement action for books. Nobody
has ever suggested—nobody in Congress, nobody in the admin-
istrative apparatus has ever suggested that books pose any kind
of corruption problem, so I think that there would be a good as-

applied challenge with respect to that.
JUSTICE SCALIA: So you’re—you are a lawyer advising somebody who
is about to come out with a book and you say don’t worry, the FEC
has never tried to send somebody to prison for this. This statute
covers it, but don’t worry, the FEC has never done it. Is that going
to comfort your client? I don’t think so.
Transcript of Oral Argument, September 9, 2009, 2009 WL 6325467.

105. See note 103 above.
107. Robert Post, Democracy, Expertise, Academic Freedom: A First Amendment Juris-
prudence for the Modern State (New Haven, CT: Yale University Press, 2012).
108. Viewpoint discrimination is quite routine outside of public discourse. See
Robert Post, “Viewpoint Discrimination and Commercial Speech,” Loyola of
Louisiana Law Review 41 (2007); Robert Post, “Between Governance and Man-
agement: The History and Theory of the Public Forum,” UCLA Law Review 34
(1987): 1824–29.
109. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S. Ct. 1297,
1311–12 (2006).
110. N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 13 (1988).
111. Bd. of Dirs. of Rotary Intern. v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987).
First Amendment rights of freedom of association are thus distinct from due
process rights of association, which protect “choices to enter into and maintain
certain intimate human relationships . . . against undue intrusion by the State
because of the role of such relationships in safeguarding the individual freedom
that is central to our constitutional scheme.” Roberts v. U.S. Jaycees, 468 U.S.
609, 617–18 (1984). These forms of intimate association receive “protection as a
fundamental element of personal liberty.” Ibid. at 618.
112. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458–60 (1958).
113. 479 U.S. 238 (1986).
114. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 467
(2008) (Scalia, J., dissenting). See FCC v. Beaumont, 539 U.S. 146, 162 (2003).
115. See, for example, Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
116. 435 U.S. 765 (1978).
117. Ibid. at 775–76.
118. 435 U.S. at 775. Alexander Meiklejohn famously viewed democracy as a pro-
cess of “the voting of wise decisions.” Alexander Meiklejohn, Political Freedom:
The Constitutional Powers of the People (Oxford: Oxford University Press,
1965), 26.
119. 435 U.S. at 777. Constitutional protections extend to expression to safeguard
the constitutional value attributed to the expression. Bellotti may be correct
that the informational value of speech does not depend upon the identity of its
source, but speech sometimes embodies constitutional values that transcend the
mere transmission of information. The speech of persons participating in public
discourse, and the speech of the expressive associations formed by such persons,
is highly prized because of the value of democratic legitimation, which is distinct
from the value of merely transmitting information. There is yet another consti-
tutional value that is sometimes embodied by institutional speech, and that is
the value associated with freedom of the “press.” When this constitutional value
is at stake, the corporate form vel non of a speaker is not decisive, just as it is not
decisive in the context of expressive associations.
The Court in Citizens United intimates that if corporations were not enti-
tled to the same speech rights as individual persons, the state would be free
to suppress the speech of “media corporations.” 130 S.Ct. at 905–6. I find this
suggestion fanciful and baffling. The Court mistakenly asserts that “ ‘ We have
consistently rejected the proposition that the institutional press has any consti-
tutional privilege beyond that of other speakers.’ ” Ibid. at 905 (quoting Scalia, J.,
dissenting in Austin, 494 U.S. at 691). This is manifestly incorrect. See C. Edwin
Baker, “The Independent Significance of the Press Clause under Existing Law,”
Hofstra Law Review 35 (2007); Randall P. Bezanson, “The Developing Law of
Editorial Judgment,” Nebraska Law Review 78 (1999); and Randall P. Bezanson,
“No Middle Ground? Reflections on the Citizens United Decision,” Iowa Law
Review 96 (2011). In Minneapolis Star v. Minnesota Comm’r, 460 U.S. 575 (1983),
for example, the Court held that the First Amendment prohibits states from
imposing unique taxes on the press. States can impose unique taxes on virtually
every kind of business, including nonpress communicative businesses such as
film distributors, but they cannot impose a singular tax on the press. The Court
explained that this is because such a tax would be inconsistent with the distinct
constitutional function of the press, which is to “serve as an important restraint
on government.” Ibid. at 585. Institutional speakers that do not serve this purpose
do not receive the constitutional protections that accrue to the press.
The constitutional value of the press articulated in Minneapolis Star has
been theorized as the “checking value,” and it is well established in law and his-
tory. See, for example, David A. Anderson, “The Origins of the Press Clause,”
UCLA Law Review 30 (1983): 491 (“A press clause was necessary, not to induce
the press to provide a check on governmental power, but because it was uni-
versally assumed that the press would indeed provide such a check and that
government therefore would seek to suppress it”); Potter Stewart, “Or of the
Press,” Hastings Law Journal 26 (1979): 633 (“The primary purpose of the con-
stitutional guarantee of a free press was . . . to create a fourth institution outside
the Government as an additional check on the three official branches”); and
Vincent Blasi, “The Checking Value in First Amendment Theory,” American
Bar Foundation Research Journal (1977): 538 (“One of the most important val-
ues attributed to a free press by eighteenth-century political thinkers was that
of checking the inherent tendency of government officials to abuse the power
entrusted to them”).
Corporations that serve the checking value should receive the constitu-
tional protections appropriate to that function. Serving this function makes
them constitutionally distinct from both expressive associations and ordinary
commercial corporations. Of course, it may be difficult to draw a line between
corporate entities that deserve the protections due to the press and those that
are simply ordinary commercial corporations, but analogous difficulties afflict
much constitutional law.
120. It is plain that Citizens United did not grasp this important point. It cites Bellotti
for the proposition that “the worth of speech ‘does not depend upon the identity
of its source, whether corporation, association, union, or individual.’ ” Citizens
United, 130 S.Ct. at 904.
121. On the distinction between original and derivative rights, see Meir Dan-Cohen,
Rights, Persons, and Organizations: A Legal Theory for Bureaucratic Society (Berke-
ley: University of California Press, 1986). The Court in Citizens United is quite
blurry about the nature of the First Amendment rights possessed by commercial
corporations. Like Bellotti, however, the Court in Citizens United states that “it is
inherent in the nature of the political process that voters must be free to obtain
information from diverse sources in order to determine how to cast their votes.”
130 S.Ct. at 899. For a thoughtful analysis of institutional speech rights see Ran-
dall P. Bezanson, “Institutional Speech,” Iowa Law Review 80 (1995).
122. See, for example, Riley v. National Federation of the Blind of North Carolina, Inc.,
487 U.S. 781, 796–97 (1988).
123. Wooley v. Maynard, 430 U.S. 705, 714 (1977).
125. NAACP v. Button, 371 U.S. 415, 433 (1963).
126. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
127. For example, Thomas W. Joo, “Corporate Governance and the Constitutional-
ity of Campaign Finance Reform,” Election Law Journal 1 (2002): 370–71; and
Tom Bennigson, “Nike Revisited: Can Commercial Corporations Engage in
Non-commercial Speech?,” Connecticut Law Review 39 (2006): 413.
128. See Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S.
557 (1980). For a discussion, see Robert Post, “The Constitutional Status of
Commercial Speech,” UCLA Law Review 48 (2000).
129. See Post, “Constitutional Status of Commercial Speech.”
130. David Shelledy, “Autonomy, Debate, and Corporate Speech,” Hastings Consti-
tutional Law Quarterly 18 (1991): 576.
132. By allowing PACs, BCRA essentially empowers persons connected to the cor-
poration to use the organizational structure of the corporation to create their
own expressive association. Because nothing would prohibit such persons from
creating their own expressive association outside the context of the corporation,
BCRA is actually speech promoting from the perspective of persons connected
to the corporation.
133. Citizens United, 130 U.S. at 892, 895, 908.
134. Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 433 (1963).
135. Bruce Ackerman, We the People, vol. 1, Foundations (Cambridge, MA: Belknap
Press of Harvard University Press, 1991), 230–65.
136. See Post, “Constitutional Status of Commercial Speech”; Va. Pharmacy Board
v. Virginia Consumer Council, 425 U.S. 748, 772 n. 24 (1976). Compare In re
Primus, 436 U.S. 412 (1978), with Ohralik v. Ohio State Bar Ass’n., 436 U.S. 447
(1978). Compare Bates v. State Bar of Arizona, 433 U.S. 350, 380 (1977).
137. Meiklejohn, Political Freedom, 6.
138. Ibid.
139. Ibid., 24.
140. Ibid., 26.
141. Ibid. See Owen Fiss, “Money and Politics,” Columbia Law Review 97 (1997).
142. 395 U.S. 367 (1969).
143. Ibid. at 388–89.
144. Ibid. at 390. The Court later began to have second thoughts about this charac-
terization. See Robert Post, “Subsidized Speech,” Yale Law Journal 106 (1996):
158–61.
145. Red Lion, 395 U.S. at 390.
146. Ibid. at 392.
147. Walter Lippmann, Public Opinion (New York: Harcourt, Brace, 1922),
44–46, 244.
148. Although he came close to this position three years later in Walter Lippmann,
The Phantom Public (New York: Harcourt, Brace, 1925), which expressed a
strong inclination to entrust government to qualified experts. See Edward A.
Purcell Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem
of Value (Lexington: University Press of Kentucky, 1973), 105–7.
149. Lippmann, Public Opinion, 402.
150. Ibid. For a modern version of this solution, see Bruce Ackerman and James Fish-
kin, Deliberation Day (New Haven, CT: Yale University Press, 2004).
151. Harper v. Canada, 2004 SCCC 33, at §72. The British House of Lords has come
to a very similar conclusion:
The fundamental rationale of the democratic process is that if com-

peting views, opinions and policies are publicly debated and exposed
to public scrutiny the good will over time drive out the bad and the
true prevail over the false. It must be assumed that, given time, the
public will make a sound choice when, in the course of the demo-
cratic process, it has the right to choose. But it is highly desirable that
the playing field of debate should be so far as practicable level. This
is achieved where, in public discussion, differing views are expressed,
contradicted, answered and debated. It is the duty of broadcasters to
achieve this object in an impartial way by presenting balanced pro-
grammes in which all lawful views may be ventilated. It is not achieved
if political parties can, in proportion to their resources, buy unlimited
opportunities to advertise in the most effective media, so that elections
become little more than an auction. Nor is it achieved if well-endowed
interests which are not political parties are able to use the power of the
purse to give enhanced prominence to views which may be true or false,
attractive to progressive minds or unattractive, beneficial or injurious.
The risk is that objects which are essentially political may come to be
accepted by the public not because they are shown in public debate to
be right but because, by dint of constant repetition, the public has been
conditioned to accept them.
On the Application of Animal Defenders International v. Secretary of State

for Culture, Media and Sport, [2008] H.R.L.R. 25 (March 12, 2008), at ¶ 28
(Opinion of Lord Bingham of Cornhill).
152. For a discussion of the difference between Meiklejohnian principles and public
discourse, see Robert Post, “Meiklejohn’s Mistake: Individual Autonomy and
the Reform of Public Discourse,” University of Colorado Law Review 64 (1993);
Robert Post, “Reconciling Theory and Doctrine in First Amendment Jurispru-
dence,” California Law Review 88, no. 6 (2000): 2369–74.
154. The theory of speech rights within government organizations is discussed in
Robert Post, “Between Governance and Management: The History and Theory
of the Public Forum,” UCLA Law Review 34 (1987).
155. Shrink, 528 U.S. at 401 (Breyer, J., concurring).
156. Pildes, “Foreword,” 50–52; Louis Massicotte, André Blais, & Anotine Yoshinaka,
Establishing the Rules of the Game: Election Laws in Democracies (Toronto: Uni-
versity of Toronto Press, 2004).
157. Burdick v. Takushi, 504 U.S. 428, 433 (1992); Buckley v. American Constitutional
Law Foundation, 525 U.S. 182, 191 (1999) (“States allowing ballot initiatives have
considerable leeway to protect the integrity and reliability of the initiative pro-
cess, as they have with respect to the election process generally”); Anderson v.
Celebrezze, 460 U.S. 780, 787n9 (1982) (“We have upheld generally-applicable
and evenhanded restrictions that protect the integrity and reliability of the elec-
toral process itself ”).
158. Pildes, “Foreword,” 51–52.
159. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Eu v. San Francisco County
Democratic Central Comm., 489 U. S. 214, 231 [1989]).
160. Burson v. Freeman, 504 U.S. 191, 200–205 (1992). As Elihu Root recalled in 1916:
I have seen a file of men marched out of a tramp lodging house with
their ballots held aloft in one hand continuously in plain sight until
they had deposited them in the ballot box, in order to give the necessary
evidence that they were voting according to the contract under which
they were immediately thereafter to be paid. Now . . . [t]he ballot is
furnished by the state; the method of voting upon the Australian bal-
lot in all its forms, by marking it in secret, makes bribery uncertain and
unprofitable, because it is impossible to tell how any one votes, and the
man who would take money for his vote cannot be depended upon
to vote as he has agreed. . . . The change from dishonest and unfair
elections to honest and fair elections is fundamental to the successful
working of popular government.
Elihu Root, Addresses on Government and Citizenship, edited by Robert

Bacon and James Brown Scott (Cambridge, MA: Harvard University Press,
1916), 69.
161. F. N. Judson, “The Future of Representative Government,” American Political
Science Review 2 (1908): 197.
162. Compare Grovey v. Townsend, 295 U.S. 45 (1935), with Smith v. Allwright, 321
U.S. 649 (1944), and Terry v. Adams, 345 U.S. 461 (1953). The story is told in
Michael J. Klarman, “The White Primary Rulings: A Case Study in the Con-
sequences of Supreme Court Decisionmaking,” Florida State University Law
Review 29 (2001).
163. Clingman v. Beaver, 544 U.S. 581, 593 (2005).
164. Timmons v. Twin City Area New Party, 520 U.S. 351, 369 (1997).
165. W. R. Scott, Organizations: Rational, Natural, and Open Systems (Englewood
Cliffs, NJ: Prentice Hall, 1981), 180. See also Freeman, “The Unit of Analysis in
Organizational Research,” in Environments and Organizations, edited by Mar-
shall W. Meyer and associates (San Francisco: Jossey-Bass, 1978), 336–38.
166. Fremont E. Kast and James E. Rosenzweig, “General Systems Theory: Applica-
tions for Organization and Management,” Academic Management Journal 15
(1972): 450.
167. Jeffrey Pfeffer and Gerald R. Salancik, The External Control of Organizations:
A Resource Dependence Perspective (New York: Harper and Row, 1978). See also
James D. Thompson, Organizations in Action (New York: McGraw-Hill, 1967),
39–44. Compare Oliver E. Williamson, Markets and Hierarchies: Analysis and
Antitrust Implications (New York: Free Press, 1975).
168. San Diego v. Roe, 543 U.S. 77, 84 (2004).
169. United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S.
114, 128–29 (1981).
170. Ibid. at 126.
171. Ibid. at 133.
172. Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008). See Kowalski v. Berkeley County
Schools, 652 F.3d 565 (4th Cir. 2011). Courts have even expanded the managerial
domain of schools to include the parents of students. See, Blasi v. Pen Argyl Area
School Dist., 2013 WL 343175 (C.A. 3 [Pa.], January 30, 2013).
173. For a discussion of this distinction, as well as how the Court sets the boundaries
of state institutions, see Post, “Between Governance and Management.”
174. Allen Thorndike Rice, “Recent Reforms in Balloting,” North American Review
143 (December 1886): 631.
175. “The adoption of the Australian ballot necessarily transformed state and local
parties from private organizations into public agencies, and a corollary of its
official recognition of parties on the ballot was state involvement in their nomi-
nation process.” Peter H. Argersinger, Structure, Process, and Party: Essays in
American Political History (Armonk NY: M. E. Sharpe, 1992), 59.
176. Recent work suggests that because commercial corporations prefer to influence
politics by lobbying rather than by determining which candidate is elected, Citi-
zens United may not have affected overall corporate independent expenditures
on elections. See Samuel Issacharoff and Jeremy Peterman, “Special Interests
after Citizens United: Access, Replacement, and Interest Group Response to
Legal Change,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2222063.
Of course, this work raises the question of whether the protection of electoral
integrity might also require regulatory approaches to lobbying. See Gerken,
“Lobbying as the New Campaign Finance.”
177. NCPAC, 470 U.S. at 497.
178. Crawford v. Marion County Election Bd., 553 U.S. 181, 197 (2008) (Opinion of
Stevens, J.).
179. First Amendment rights that protect public discourse have this same structure.
180. Reynolds v. Sims, 377 U.S. 533, 565 (1964).
181. Compare Crawford v. Marion County Election Bd.
182. Turner Broadcasting System v. FCC, 520 U.S. 180, 189 (1997).
183. Ibid. at 195–96.
184. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Madsen v. Women‘s
Health Center, Inc., 512 U.S. 753 (1994). The Court has offered many inconsistent
definitions of content neutrality. See Robert Post, “Recuperating First Amend-
ment Doctrine,” Stanford Law Review 47 (1995): 1265–70. Section 441b is con-
tent-neutral legislation according to those cases that define content neutrality as
legislation “aimed not at the content” of the speech, but rather at its “secondary
effects.” Renton, 475 U.S. at 47. It is also content-neutral legislation according to
those cases that define content-discriminatory legislation as adopted “because of
disagreement with the message” of the regulated speech. Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). See Sorell v. IMS Health Inc., 131 S.Ct. 2653,
2664 (2011).
185. On the nature of political judgment, see Ronald Beiner, Political Judgment (Chi-
cago: University of Chicago Press, 1984).
186. See notes 88–89 above.
187. Samuel Issacharoff and Pamela S. Karlan, “The Hydraulics of Campaign Finance
Reform,” Texas Law Review 77 (1999): 1710–11.
188. See “65% in Poll Back U.S. Campaign Aid,” New York Times, September 20, 1973.
Consider Henry George back in 1883: “Popular government must be a sham and
a fraud” so long “as elections are to be gained by the use of money, and cannot
be gained without it.” Henry George, “Money in Elections,” North American
Review 316 (1883): 201.
189. Caperton v. A. T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2266 (2009). See James L.
Gibson, “Challenges to the Impartiality of State Supreme Courts: Legitimacy
Theory and ‘New-Style’ Judicial Campaigns,” American Political Science Review
102 (2008): 69; James L. Gibson, “ ‘New-Style’ Judicial Campaigns and the
Legitimacy of State High Courts,” Journal of Politics 71 (2009): 1294. Justice
Kennedy has in the past stressed the analogy between judicial elections from
other types of elections for purposes of the First Amendment. See Republican
Party of Minnesota v. White, 536 U.S. 765, 794–95 (2002) (Kennedy, J., con-
curring) (“The State of Minnesota no doubt was concerned, as many citizens
and thoughtful commentators are concerned, that judicial campaigns in an age
of frenetic fundraising and mass media may foster disrespect for the legal sys-
tem. . . . [But t]he State cannot opt for an elected judiciary and then assert that
its democracy, in order to work as desired, compels the abridgment of speech”).
190. For example, Canada regulates “electoral expenses,” including expenses for “elec-
tion advertising,” during a discrete election period, defined as the period between
the issue of a writ of election and polling day, a period that must be at least
36 days. Canada Elections Act, S.C. 2000, c. 9, §2, §57(c). “Electoral expenses”
are defined as “any cost incurred, or non-monetary contribution received, by a
registered party or a candidate . . . used to directly promote or oppose a regis-
tered party, its leader or a candidate during an election period.” Ibid., §350. For
example, third parties are subject to a $150,000 ceiling on electoral expenses
during this period, a statutory provision that the Supreme Court of Canada
upheld in Harper. Ibid.; Harper v. Canada [2004], 1 S.C.R. 827, at para. 115
(Can). “Election advertising” is defined as “the transmission to the public by
any means during an election period of an advertising message that promotes
or opposes a registered party or the election candidate.” Canada Elections Act,
S.C. 2000, c. 9, §319. Canada also provides free broadcasting on television and
radio for political parties during the election period. Ibid., §345.
Great Britain sets limits on “campaign expenditures,” otherwise known as
party expenditures, a year prior to a general election up to polling day. Political
Parties, Elections, and Referendums Act (PPERA), 2000, c. 41, §72, §79, sch. 9,
paras. 1(3), 3(7). Since 2011, Britain has adopted fixed-term elections every five
years. Fixed-term Parliaments Act, 2011, c.14. However, Parliament still has the
power to call for early elections, and because of this uncertainty, political par-
ties must continually maintain records of their expenditures. Ibid., §2. British
law also limits “election expenditures,” or candidate expenditures, during the
period immediately following the Parliament’s dissolution, or generally 17 days
before an election. Representation of the People Act, 1983, c. 2, §73, §76, §118A.
“Controlled expenditures,” or third-party expenditures, are similarly subject to
limits for any election “whether imminent or otherwise.” PPERA, 2000, c. 41,
§85(3). However, third parties may also apply for recognition by the Electoral
Commission, in which case they are subject to a larger limitation applicable to
spending across constituencies, in the 365 days preceding a general election. Ibid.,
§94, sch. 10, para. 3.
France defines official election periods for both presidential and National
Assembly elections. With respect to presidential elections, an election period
lasts the two weeks preceding the first ballot and, if no candidate receives a
majority of votes in the first round, the week between the first and second bal-
lots. Code électoral, art. R26. With respect to National Assembly elections, the
election period begins 20 days prior to the first ballot. Ibid., art. L164. France
authorizes election contributions beginning only 1 year preceding the first day of
the month of the election, with these contributions being subject to limits. Ibid.,
art. L52-4, L52-11. Election expenditures are subject to limitations commencing
the year prior to the first day of election month. Ibid., art. L52-11. France also
regulates “election propaganda” broadly defined, prohibiting such propaganda
through the press or by audiovisual means, in the 6 months preceding an elec-
tion. Ibid., art. L48-1, L52-1.
Israel limits party expenditures during an election period defined as the
101 days before an election. Political Parties (Financing) Law, 5733-1973, 27
LSI 48 (1972–1973), §7. It also regulates election-related speech during a set
period: parties and candidates are prohibited from publishing more than ten
thousand inches of ads in newspapers in the 3 months preceding an election.
Election (Means of Propaganda) Law, 5719-1959, SH No. 138, cl. 10(b)(4), 10(b)
(5). Political parties are allotted free campaign advertisements on both television
and radio, taking place in the 60 days before an election. Ibid., cl. 5(a)(1), art. 15.
Germany, via state and local laws, restricts political advertisements through
billboards to the month preceding an election. See Edith Palmer, “Campaign
Finance: Germany,” Law Library of Congress, http://www.loc.gov/law/help/
campaign-finance/germany.php.
191. Justice Stevens seems to have verged on explicitly recognizing elections as
managerial domains. See Davis v. FEC, 128 S.Ct. 2759, 2779 (2008) (Stevens, J.,
dissenting).
192. Richard Briffault, “Issue Advocacy: Redrawing the Elections/Politics Line,”
Texas Law Review 77 (1999): 1753. The considerable and thoughtful First
Amendment scholars cited in note 11 of lecture 1 all explore the possibility of
creating a domain for elections that is distinct from that of politics.
193. C. Edwin Baker, “Campaign Expenditures and Free Speech,” Harvard Civil
Rights–Civil Liberties Law Review 33 (1998): 25.
194. Briffault, “Issue Advocacy,” 1772–74. See also 2 USC §434(a)-(b) (2006) (requir-
ing campaign committees to disclose certain contributions and expenditures and
requiring speakers unaffiliated with a campaign to disclosure certain contribu-
tions and expenditures if those speakers expressly urge the election or defeat of
particular candidates).
195. While the Court struck down BCRA’s ban on “electioneering communications”
by unions and corporations, BCRA’s disclosure rules for “electioneering com-
munications” remain in effect. See 2 USC §434(f ) (2006) (requiring disclosure
of certain contributions and expenditures for “electioneering communications”).
196. Media outlets must comply with four special rules during “elections.” Under the
“reasonable access” rule, commercial broadcasters must provide legally qualified
candidates for federal office with “reasonable access” to all “classes and dayparts”
of advertising time available. 47 CFR §§73.1944 (2010). Under the “equal oppor-
tunities” rule, broadcasters and cable stations must not preclude any candidate
running for any office from appearing on a station as often as and during the
same general time periods as another candidate for that same office. 47 CFR
§§73.1941, 76.205 (2010). Under the “no censorship” rule, broadcasters and cable
stations are forbidden from censoring the content of an advertisement purchased
by legally qualified candidates for any office. 47 CFR §§73.1941, 76.205 (2010).
Under the “lowest unit rate” rule, which applies only during the forty-five days
preceding a primary election and sixty days preceding a general election, the rates
that broadcasters and cable stations charge candidates for purchases of advertis-
ing time cannot exceed the lowest rates charged to commercial advertisers for
identical purchases. 47 CFR §§73.1942, 76.206 (2010).
197. WRTL, 551 U.S. at 457–58.
198. See notes 195–97 above. Most significantly, BCRA attempted to ban unions
and corporations from using general treasury funds to pay for electioneering
communications. Citizens United, 558 U.S. at 310.
199. FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464 (2007) (Opinion of
Roberts, C.J.).
200. See notes 98–100 above.
201. See Robert Post, “Regulating Election Speech under the First Amendment,”
Texas Law Review 77 (1999).

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Representative Democracy:

The Constitutional Theory of

The Tanner Lectures on Human Values

Campaign finance reform is among the most vexing constitutional issues

value of self-​determination is realized when the people actively participate

The framers were aware of ancient democracies, in which people physi-

purported to represent. Only in this way could the value of self-​government

free Government,” which “would be more stable and durable if it should

can admit of no cure for the mischiefs of faction. A common passion

The mischiefs of faction, Madison famously argued, are best addressed

deliberative body, which are essential requisites in the Legislatures of free

The Constitution structured the House of Representatives as the

those who appoint them—​a representation of the people of America”

by the government.”101 Madison believed that influencing public opinion

By the time Tocqueville visited America in 1831, this relationship

aristocrats, profess to entertain of an ‘unbalanced democracy.’ We believe

public will. In the words of Jacksonian congressman Thomas R. Mitchell,

What is the meaning of the word Representative? Does it not, ex vi

If representatives should individually become more like delegates,

Jacksonian egalitarianism thus posed two deep challenges to the exist-

The Gilded Age was nevertheless a period of “strong partisan loyalties

The point is illustrated by the periodic eruptions of third-​party mobili-

mugwumps who were their direct intellectual and social predecessors,160

of minority control, which makes possible protection and advancement

With regard to business, therefore, Progressives pushed for a “regu-

is to prevent the great moneyed corporations from furnishing the

a protection to corporations and to candidates against demands made

Root’s motion failed, but in 1909 New York enacted a statute “substantially

The Constitution guarantees protection to property, and we must

would be “directly accountable to the citizen” and not to “the political

fundamental constitutional transformation that has proved so pervasive,

which every government degenerates into tyranny,” which Madison long

in constant touch with one another by means of the complicated agen-

Parliament no longer possess their former function. They no longer

Elihu Root, who believed profoundly in the virtues of representa-

Croly described two distinct (and incompatible) versions of demo-

to be more fundamental than any particular or momentary representa-

prevent the subsequent punishment of such as may be deemed contrary

Brandeis is clear that freedom of speech is a pathway to self-​government.

own opinion concerning laws existing or contemplated prevail.” So long

As Arthur Bentley famously observed in 1908, politics in the United States

1. 424 U.S. 1 (1976).

28. Federalist No. 10 (Madison).

However his own Borough may be affected by general Dispositions; . . .

Writing on the subject of Irish Catholics in 1792, Edmund Burke, in Letter

Virtual representation is that in which there is a communion of inter-

The Security of the Non-​Electors against Oppression, is, that their

Representatives of both. This is the only rational Explanation of the

Dulany, Considerations on the Propriety of Imposing Taxes, 80. There are

The honorable gentleman was pleased to say that the representation

Elliot, Debates in the Several State Conventions, 3:324.

In a democracy the power remains in the people, and every sub-

difference between an absolute democracy and a form of government

James Madison, in Records of the Federal Convention of 1787, edited by Far-

66. See Pennsylvania Constitution, Declaration of Rights XVII (1776); North Caro-

A government by representation, implies the idea that the repre-

18 (1952); William S. Hoffmann, “Willie P. Mangum and the Whig Revival of

95. Madison, Federalist No. 57.

121. “The Democratic Principles,” 1.

value of self-determination is realized when the people actively participate

purported to represent. Only in this way could the value of self-government

those who appoint them—a representation of the people of America”

The point is illustrated by the periodic eruptions of third-party mobili-

Brandeis is clear that freedom of speech is a pathway to self-government.

The Security of the Non-Electors against Oppression, is, that their

or to be over-balanced, in office or in council, by those who contradict,

40 percent in 2011 and 2012. Jeffrey M. Jones, “In U.S., Democrats Re-establish

Highly structured decision-making occasions, like town meetings or

First Amendment jurisprudence contains a well-worked-out theory

Even if a PAC could somehow allow a corporation to speak—and it