CITIZENS UNITED AND EQUALITY FORGOTTEN MARK C. ALEXANDER"

Transcription

1 CITIZENS UNITED AND EQUALITY FORGOTTEN MARK C. ALEXANDER" I. INTRODUCTION II. CITIZENS UNITED: A BRIEF OVERVIEW III. SPEECH IN DEMOCRACY A. Political Speech Receives the Strongest First Amendment Protection B. Buckley and Its Progeny IV. WHAT ELSE MATTERS? COMPETING VALUES A. Time Protection B. Vote Dilution C. The Guarantee Clause and the Republican Form of Government v. CONCLUSION I. INTRODUCTION Since the landmark Buckley v. Valeo 1 decision in 1976, the U.S. Supreme Court has analyzed campaign finance reform efforts through the lens of the First Amendment. Because spending in the political realm has been equated with speech, the right to spend money has enjoyed the utmost constitutional protection. In 2010, the Court reaffirmed its commitment to this longstanding tradition when it handed down Citizens United v. FEC. 2 The Court is correct to exalt First Amendment values-values central to our nation's governmental and political systems. However, in elevating those values, the Court's analysis pays scant at- * Professor of Law, Seton Hall University School of Law. Many thanks to the Brennan Center for Justice for sponsoring the Citizens United symposium that generated this and many other fine contributions to this field. I also appreciate the continued support I receive from my academic home, Seton Hall Law School. This piece also recounts arguments from prior articles, and puts them into the context of the recent Supreme Court decision. Many research assistants helped on those pieces, and on this one, and I am grateful to them all. 1. See generally Buckley v. Valeo, 424 U.S. 1 (1976) (discussing how the contribution and expenditure limits of the Federal Election Campaign Act of 1971 restricted the First Amendment rights of candidates, citizens, and associations to engage in political expression, and ultimately holding that individual contribution limits were constitutional, but campaign expenditure limits were not). 2. See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010) (holding that the govemment may not suppress corporate political speech by corporations and unions and that a federal statute barring independent corporate expenditures for electioneering communications violated the First Amendment). 499

2 500 N. Y. U REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 tention to another central value: equality. In the world of modern political campaigns, as candidates compete for money from the few, the many are left out, in conflict with the constitutional promise of equality. The Supreme Court's Citizens United decision generated many heated responses and resulted in one minor dustup between President Obama and Justice Alito at the State of the Union address. 3 The opinion also generated much consternation and debate among the general public. As federal and state legislators contemplated the impact of the decision, the Brennan Center for Justice at New York University School of Law gathered scholars, practitioners, and activists together to consider this turning point in the area of campaign finance reform. Spurred by "an urgent need to rethink the relationship of money, politics and the Constitution," the Center's day-long symposium analyzed the Citizens United decision, considered the First Amendment implications of the Court's opinion, and placed it in the context of the current direction of the Roberts Court. 4 One symposium panel challenged the basic assumptions of the Court's analytical framework for campaign finance reform, asking, "Should we look beyond the First Amendment to other constitutional principles?,,5 Without detracting from the undeniable force of the First Amendment in this area, it is important to acknowledge that something is missing: as individual speech rights have been exalted, equality has been forgotten or overlooked. In my talk that day and in these pages, I emphasize various equality-based themes, posing a challenge to Citizens United and to the overall framework of campaign finance regulation in America. In this Article, I chiefly address concerns of participatory equality. In doing so, I primarily seek to draw attention to the need for all members of society to have equal opportunities to participate and be heard in the political process. This approach contrasts with the Court's narrow focus on the effect of campaign finance laws on individual speech, without sufficient concern for how that individual is part of the larger collective of people seeking to participate in the political process. Current campaign finance doctrine isolates each person and, in doing so, loses the forest for the individual trees. I begin this Article in Part II with a brief overview of Citizens United, setting the stage for further discussion. In Part III, I discuss the importance of First Amendment speech rights in our political system. Political speech has been held 3. Robert Barnes, In the Court of Public Opinion, No Clear Ruling, WASH. POST, Jan. 29, 2010, at Al ("President Obama called out the Supreme Court. Justice Samuel A. Alito winced at the accusation and muttered, 'Not True. "'), available at contentlarticle/20 I AR20 I 00 I html?sid=ST20 I See Program, Brennan Center for Justice Symposium, Money, Politics & the Constitution: Building A New Jurisprudence (Mar. 27,2010), 12c65a5fc2d4ae 16d 1_ blm6b9ghr.pdf. 5. Transcript, Brennan Center for Justice Symposium, Money, Politics & the Constitution- Panel Three (Mar. 27, 2010), money...p0litics _the_constitution _ transcript_section _v.

3 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 501 as speech of the highest value, deserving of the utmost protection in order to enable all to voice their perspectives and to benefit from an open and robust debate on the issues of the day. Moving from the general to the specific, in this Part I show how the Court applied a First Amendment analysis to protect campaign activities, with a focus on Buckley v. Valeo and its progeny. Having laid out the First Amendment framework the Court has employed for over thirty years, in Part IV I address the question of what else matters, exploring the competing values that should also inform the constitutional analysis of campaign reform measures. I argue that protecting the time of candidates and elected officials from the grind of fundraising is a compelling interest that needs to be recognized in order to enable our elected officials to act as representatives of the people. I suggest that the current state of campaign finance puts a disproportionate amount of power in the hands of the few-those with wealth and/or with wealthy friends-and is the modem equivalent of vote dilution. Further, as wealthy individuals maintain disproportionate control and influence, the republican form of government is threatened, which may raise constitutional concerns under the Guarantee Clause. Finally, I suggest that these concerns, firmly rooted in principles of equality in our government and politics, have been forgotten in the modem analysis of campaign finance reform generally, and in Citizens United in particular. II. CITIZENS UNITED: A BRIEF OVERVIEW In January 2008, Citizens United (a nonprofit corporation) released a film entitled Hillary: The Movie (hereinafter Hillary), a ninety-minute, mostly negative documentary about then-senator Hillary Clinton while she was a presidential candidate. 6 The Court characterized the film as "an extended criticism of Senator Clinton's character and her fitness for the office of the Presidency.,,7 Hillary was released on DVD and in theaters, and was made available through video-on-demand. 8 Citizens United also produced advertisements to promote the film.9 The corporation's plan to publicize and air the movie, however, appeared to be in conflict with the Bipartisan Campaign Reform Act of 2002 (BCRA) Citizens United, 130 S. Ct. at Id. at 890 ("In light of historical footage, interviews with persons critical of her, and voiceover narration, the film would be understood by most viewers as an extended criticism of Senator Clinton's character and her fitness for the office of the Presidency. The narrative may contain more suggestions and arguments than facts, but there is little doubt that the thesis of the film is that she is unfit for the Presidency... As the District Court found, there is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton."). 8. See id. at 887 ("Video-on-demand allows digital cable subscribers to select programming from various menus... The viewer can watch the program at any time and can elect to rewind or pause the program. "). 9. See id. 10. Bipartisan Campaign Reform Act of 2002 (BCRA), Pub.L. No , 116 Stat. 81 (codified in scattered sections of the U.S.C.).

4 502 NY. U. REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 The Act prohibited corporations and unions from using general funds to make direct contributions to candidates or to make "electioneering communications" independent expenditures that expressly advocate for or against a particular candidate. II Prior to the Citizens United decision, the statute prohibited "any broadcast... that 'refers to a clearly identified candidate for Federal office' and is made within 30 days of a primary or 60 days of a general election.,,12 Intent on having an impact on the 2008 presidential primaries, Citizens United sought a preliminary injunction against the Federal Election Commission in December 2007, arguing in large part that BCRA was unconstitutional as applied. 13 Relying on the Supreme Court's prior ruling in McConnell v. FEC, which had rebuffed an attack on the facial constitutionality of the statute, but had withheld ruling on an as-applied challenge,i4 the district court in Citizens United refused to grant a preliminary injunction. 15 The question with regard to Citizens United's as-applied challenge was whether Congress could restrict this type of independent spending during federal campaigns.i6 After hearing arguments in Citizens United for the 2008 Term, the Court ordered reargument to focus on whether BCRA's restrictions on corporations' and unions' electioneering communications were constitutional on their face. 17 In January 2010, the Court struck down those restrictions as facially unconstitutional. 18 The heart of the majority's argument is that money and political spending can be equated with speech, that corporations can be considered persons with speech rights, and that BCRA's restriction on corporate spending improperly violates the First Amendment. 19 As Justice Kennedy explains, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.,, See 2 U.S.C. 44lb (2006) (describing rules related to electioneering communications). 12. Citizens United, 130 S. Ct. at 887 (quoting 2 U.S.C. 434(f)(3)(A) (2006». These laws left the door open for corporations and unions to establish a separate, segregated fund known as a political action committee ("PAC"), funded by employees, stockholders, or union members. ld. at See Citizens United v. Fed. Election Comm'n, 530 F. Supp. 2d 274, (D.D.C. 2008) ("Citizens' complaint, filed on December 13, 2007, contains two major claims: (1) that 203's prohibition of corporate disbursements for electioneering communications violates the First Amendment on its face and as applied to The Movie and to the 30-second advertisement "Questions;" and (2) that BCRA 201 requiring disclosure and 311 requiring disclaimers are unconstitutional as applied to Citizens' three advertisements (and to The Movie, if Citizens broadcasts it in a manner that does not violate 203)."). 14. McConnell v. FEC, 540 U.S. 93 (2003). 15. Id. at Citizens United, 130 S.Ct. at 936 ("Until this Court ordered reargument, [Citizens United's] contention was that BCRA 203 could not lawfully be applied to a feature-length video-ondemand film (such as Hillary) or to a nonprofit corporation exempt from taxation under 26 U.S.C. 501 (c)(4).") (Stevens, J., concurring in part and dissenting in part). 17. Citizens United v. FEC, 129 S.Ct (2009). 18. Citizens United, 130 S. Ct. at See id at , 907-D8, ld. at 904.

5 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 503 While this brief synopsis hardly does justice to the one hundred-plus pages of opinions,21 my intention in this section is merely to summarize the central reasoning of the Court's decision. While the Court appropriately celebrates the First Amendment in its Citizens United opinion, it does not adequately address the importance of equality concerns in our democracy. The predominant analysis is flawed, and as equality is forgotten, the American people and our political and governmental systems suffer. III. SPEECH IN DEMOCRACY The Citizens United opinion may be described as a triumph of the First Amendment over government attempts to regulate core protected political speech. As Justice Kennedy frames the majority opinion in that case, the Court's primary concern is our nation's commitment to vigorous, unrestrained debate on all matters pertaining to our politics and government. 22 There can be no doubt that the Constitution places a premium on free expression and the protections of the First Amendment. 23 But, while bolstering the importance of individual speech, the majority analysis fails to properly consider values of participatory equality. While this is far from a minor flaw, my broader criticism of Citizens United in no way is meant to diminish those speech values. Before turning to a discussion of what was left out of the Court's analysis, therefore, I pause briefly to acknowledge the importance of First Amendment values. First, I will show that political activity is of critical importance and thus rightly shielded by the First Amendment. Next, I will briefly discuss the way in which campaign activities maintain a particularly important place in First Amendment jurisprudence. Finally, I will address the key case in this field, Buckley v. Valeo, and its progeny-the start and end to any and every legal analysis of campaign finance reform in the last thirty-five years. Speech is at the core of our democratic process, and is an essential part of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.,,24 A range of ideas must be aired 21. In addition to the majority opinion, Chief Justice Roberts and Justice Scalia and Justice Thomas wrote concurring opinions (in whole or in part), and Justice Stevens wrote a lengthy dissent. 22. See id. ("Political speech is 'indispensable to decisionmaking in a democracy'... " (quoting First Nat'l Bank v. Bellotti, 435 U.S. 765, 777 (1978)). 23. See id. at (discussing the First Amendment's general prohibition against suppressing political speech). 24. N.Y. Times Co. v. Sullivan, 376 U.S. 254,270 (1964). The majority opinion in New York Times largely reflected the theoretical perspective of Alexander Meiklejohn, who espoused a collective theory of the First Amendment, rather than an individual-based approach. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948). In his view, it is essential to protect speech not so much to protect the individual, but rather to promote a healthy and even thriving democratic society. If the people are to be self-governing decision-makers, there must be a free exchange of different ideas. We the people have to be informed enough--on a wide

6 504 N. Y U REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 and debated, allowing the people to choose which ideas they find most persuasive. 25 As such, the Supreme Court has long held that "[i]f there is a bedrock principle underlying the scope of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.,,26 The First Amendment protects the uninhibited marketplace of ideas in which ideas can rise and fall based on a combination of factors: what might be more persuasive, more popular, more "meritorious," or any combination thereof. Whether an idea is seen as "true" or "false," it has a place in the market of ideas, where it is subject to the scrutiny of all. 27 Further, the people's rights and liberties are protected both by and against the government through an open debate and exchange of ideas. Because the First Amendment provides each of us with the freedom to speak freely and to "shop" in the marketplace of ideas, we are the ones who ultimately decide how we want to govern and be governed. 28 In this sense, the First Amendment is the guarantor of participatory democracy, where the people are essential to the project of governance. This conception of speech echoes the Declaration of Independence, which describes government as deriving its ''just powers from the consent of the governed.,,29 Justice Brandeis likewise articulated this core understanding of the First Amendment in his concurring opinion in Whitney v. California: "Those who won our independence believed... that public discussion is a political duty... and that this should be a fundamental principle of the American government.,,30 A process of open discussion unencumbered by government interference enriches the broader public debate and allows new ideas to be tested. 31 Moreover, free speech allows for a nonviolent means of venting one's anger and range of ideas-to exercise our political will. "[T]he citizens of the United States will be fit to govern themselves under their own institutions only if they have faced squarely and fearlessly everything that can be said in favor of those institutions, everything that can be said against them... The unabridged freedom of public discussion is the rock on which our government stands." Id. at 9l. 25. See N.Y Times. 376 U.S. at (discussing historical interpretations of the First Amendment, holding that free speech should not be limited in light of the popularity, validity, or exaggeration of a statement). 26. Texas v. Johnson, 491 U.S. 397,414 (1989). 27. Under our Constitution "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., 418 U.S. 323, (1974). 28. See Abrams v. United States, 250 U.S. 616, 630 (1919) ("[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market."). Of course, the marketplace of ideas is ideal in theory, but not always in practice, due to the concentration of resources, the control of the market wielded by media conglomerates, etc. 29. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 30. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). 31. See United States v. Assoc. Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (Learned Hand, J.) ("[The First Amendment] presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.").

7 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 505 frustration at government. 32 Courts have noted that "[t]here is no greater safety valve for discontent and cynicism about the affairs of Government than freedom of expression in any fonn.',» The right to free speech is thus both a fundamental personal right and "essential to the common quest for truth and the vitality of society as a whole."34 At the same time, we must not overlook the reality that some voices are louder than others. All too often, it is not the quality of what a person says but her socioeconomic status that detennines whether her voice will be heard. As I discuss at length below, larger sums of money buy louder megaphones that can drown out other voices and distort political debate. 35 A. Political Speech Receives the Strongest First Amendment Protection As the above discussion makes clear, free speech, as protected by the First Amendment, is an indispensible part of our system of government. The right to free political speech enables all to contribute to the marketplace of ideas, allowing the most well-received ideas to spread as we engage in a participatory, democratic project of shaping our ever-changing country. Supreme Court precedent places a premium on protecting political speech. The Court in Buckley v. Valeo reaffinned that core political speech is essential to the free flow of ideas within a democracy, and should be most strongly protected by the First Amendment. 36 In our democracy, the people maintain the right to propose ideas and to engage in discussion in order to create a never-ending cycle of political and social change for which they desire. 37 The many and varied voices of the people must be heard in the oft-times ca- 32. See Eisner v. Stamford Bd. of Educ., 314 F. Supp. 832, 836 (D. Conn. 1970) (discussing the importance of free speech and how it decreases resorts to violence); Thomas I. Emerson, Toward a General Theory a/the First Amendment, 72 YALE L.J. 877, 885 (1963) (suggesting that the process of open discussion promotes social cohesion in part by allowing citizens to "let off steam" and reduce frustrations, channeling resistance into "courses consistent with law and order"). 33. United States v. N.Y. Times Co., 328 F. Supp. 324, 331 (S.D.N.Y. 1971). 34. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, (1984). 35. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH 4 (1996) ("[The state] may have to allocate public resources-hand out megaphones-to those whose voices would not otherwise be heard in the public square. It may even have to silence the voices of some in order to hear the voices of the others. Sometimes there is simply no other way."). 36. See Buckley v. Valeo, 424 U.S. 1,44-45 (1976) (noting that "rights of political expression" are "core First Amendment rights"); N.C. Right to Life, Inc. v. Leake, 108 F. Supp. 2d 498, 511 (E.D.N.C. 2000) ("Implicit in the Court's ruling [in Buckley] was the principle that core political speech, essential to the free flow of ideas in a democracy, occupies a highly protected place within First Amendment jurisprudence. "). 37. See Roth v. United States, 354 U.S. 476, 484 (1957) ("The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."); Stromberg v. California, 283 U.S. 359,369 (1931) ("The maintenance of the opportunity for free political discussion to the end that government 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.").

8 506 N. Y. U. REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 cophonous public debate. The discord and fear that can result from a presumption in favor of more speech is outweighed by the power of the public discussion to effect change. 38 Ideally, whether or not an idea takes hold or a candidate is successful is ultimately determined by the American people, who can decide what changes need to and will be made. The First Amendment protects the speech of all; a candidate's speech is just as important as that of the people she will be representing. 39 Unencumbered speech allows the people to test candidates when they stand for election. As part of the process of a participatory democracy, both the candidates and the electorate enjoy First Amendment protection to engage in a mutual dialogue aimed at determining what each candidate stands for and what the electorate desires. Because the First Amendment protects the fundamental right to engage in political speech,4o regulations that limit this right face strict scrutiny.41 This is true regardless of the caliber or quality of the speech involved. 42 Thus, candidates for public office can rest assured that they "may safely voice their opinions without shedding the cloak of protection" provided to them by the First Amendment As Justice Brandeis explained in his concurring opinion in Whitney: [The Framers] recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). 39. In Buckley, the Court declared that: The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Buckley, 424 U.S. at E.g., Mcintyre v. Oh. Elections Comm'n, 514 U.S. 344, 346 (1995); Roth v. United States, 354 U.S. 476,484 (1957). 41. See Mcintyre, 514 U.S. at 347 (stating that a law burdening "core political speech" will be upheld "only if it is narrowly tailored to serve an overriding state interest"). 42. See, e.g., Brown v. Hartlage, 456 U.S. 45, (1982) ("The political candidate does not lose the protection of the First Amendment when he declares himself for public office."); Butler v. State Judicial Inquiry Comm'n, 802 So. 2d 207,229 (Ala. 2001) ("[T]he Supreme Court has relied on the strong presumption that First Amendment protections have little to do with the caliber and quality of the speech involved, but rather, the First Amendment is more concerned with the broad protection of the speech itself in order to encourage a robust exchange of ideas in political campaigns for elected office."). 43. Butler v. Ala. Judicial Inquiry Comm'n, 111 F. Supp. 2d 1224, 1238 (M.D. Ala. 2000).

9 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 507 Unencumbered access to the election process-the machinery of electionsalso occupies a protected space within our democracy.44 The guarantee of the First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office.,,45 Such strong protection is given to electoral campaigns because they foster "unfettered interchange of ideas for the bringing about of political and social changes desired by the people.,,46 The public needs to hear each candidate's perspective on all issues in order to be fully educated and to actively participate in selecting a candidate who most effectively represents the voices of the people. Individuals place their trust in their representatives to bring about the change they wish to see and to fully advocate for their needs. Thus, the speech that takes place during campaigns is of unsurpassed interest. 47 B. Buckley and Its Progeny In furthering these important democratic values, the Supreme Court has gone beyond protecting what we traditionally think of as "speech" in campaigns, extending the strongest First Amendment protection to campaign activities and campaign finance. In Buckley v. Valeo, the seminal modem era campaign reform decision, the Court squarely placed campaign finance under the umbrella of First Amendment protection. As I explain in this section, the Buckley Court equated speech with money, applying strict scrutiny in evaluating campaign finance reform laws. In doing so, the Court privileged speech over equality, and took an important and troublesome first step down the road that has led us to Citizens See also N.Y. Times Co. v. Sullivan, 376 U.S. 254, (1964) ("Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. This is true even though the utterance contains half-truths and misinformation.") (internal quotations omitted). 44. See GERALD STOURZH, ALEXANDER HAMILTON AND THE IDEA OF REpUBLICAN GOVERNMENT 53 (1970) (quoting Hamilton as saying that "[t]he people remained 'sovereign' only through the carefully guarded and complex machinery of election"). 45. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). 46. Jd. (citing Roth v. United States, 354 U.S. 476, 484 (1957)). See also Deters v. Judicial Ret. & Removal Comm'n, 873 S.W.2d 200, 204 (Ky. 1994) ("[T]he election process enjoys the strongest possible protection under the First Amendment... because it is during elections that freedom of speech is most urgently needed... [I]f the electorate is to make informed decisions, then the information for that decision-making must be freely available."). 47. See Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) ("The right of citizens to inquire, to hear, to speak:, and to use information to reach consensus is a precondition to enlightened selfgovernment and a necessary means to protect it."); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 386 (2000) ("[T]he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office." (quoting Buckley v. Valeo, 424 U.S. 1, 15 (1976))); Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 693 (1998) ("We have recognized that speech concerning public affairs is... the essence of self-government." (internal quotations omitted)); McIntyre, 514 U.S. at (1995) ("In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation." (quoting Buckley, 424 U.S. at 14-15)).

10 508 NYU. REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 United today. In Buckley, the Supreme Court reviewed a First Amendment challenge to the Federal Election Campaign Act. 48 In 1974, Congress had amended the Act to impose both contribution limits 49 and expenditure limits 50 on political campaigns. According to the Buckley Court: The Act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. 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. The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.,,51 As with other laws that restrict core First Amendment activity, the Court determined that the restrictions of the Federal Election Campaign Act would have to meet "exacting" or strict scrutiny, requiring narrow tailoring to meet a compelling governmental interest. 52 The Court distinguished the Act's restrictions on expenditures and contributions. Because money can be spent to help convey political messages, the Court equated political expenditures with political speech53 and concluded that expenditure limitations violated the First Amendment because restricting the amount of money spent on political communication would likely reduce political speech. 54 The Court thus inexorably connected political expenditures to core First Amendment-protected activities and invalidated Congress's attempt to limit such expenditures Buckley, 424 U.S The law imposed a $1,000 limit on campaign contributions from individuals to candidates for federal office, id. at 7, and a $5,000 limit on contributions by political committees to candidates, id. at The then-existing law (1) limited the amount an individual could spend on a particular candidate to $1,000; and (2) curbed the amounts that candidates or their families could spend on their own election. Id. at 7. The law also created disclosure requirements and public funding for presidential elections. Id. 51. Jd. at 14 (quoting Roth, 354 U.S. at 484). 52. See id. at 16 (noting that "this Court has never suggested that the dependence of a communication on the expenditure of money operates itself... to reduce the exacting scrutiny required by the First Amendment"). 53. See id. at 16-17, 19 ("Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two... A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. "). 54. See id. at See id. at 22.

11 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 509 By contrast, while the Court acknowledged that expenditures could readily be seen as speech, it noted that "[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.,,56 Contributions were thus less intimately connected to speech than expenditures. 57 While the contribution limitations affected contributors' associational rights,58 the Court found that the potentially corrupting influence of money in politics-i.e., that campaign contributions could lead to a quid pro quo-was a sufficiently compelling justification for government regulation. 59 The Court further found that the potential appearance of corruption-in addition to actual corruption-was also a compelling interest. 60 Ultimately, the Court upheld contribution limits under a strict scrutiny standard, while at the same time striking down expenditure limits under the same standard. 61 In so holding, the Court notably disregarded the way that large sums of money can effectively drown out smaller voices and prevent the people from participating effectively in politics and government. While Buckley has controlled the Court's analysis since 1976, some justices 56. Id. at See id. at ("While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.... The overall effect of the Act's contribution ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression."); id. at 24 ("[T]he primary First Amendment problem raised by the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political association."). The Buckley Court's conclusion that limitations on campaign contributions can comport with the First Amendment did not mean, however, that the government was free to impose such limitations as it pleased. After Buckley, restrictions on campaign contributions continued to be viewed as content-based restrictions on speech. As a result, the government had to show that restrictions on campaign donations satisfied strict scrutiny, by being narrowly tailored to further a compelling interest. See Turner Broad. Sys., Inc. v. Fed. Comrn. Comm'n, 512 U.S. 622, (1994) (distinguishing content-based laws that affect speech, and thus are always subject to strict scrutiny, from contentneutral laws, which are analyzed under intermediate scrutiny). 58. Buckley, 424 U.S. at Id. at The Court explained that, "[t]o 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." Id. In expressing concern for "our system of representative democracy," the Court (presumably unintentionally) signals the Guarantee Clause concern discussed in Part Ill(B), supra. 60. See id. at 27 ("Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime oflarge individual financial contributions."). 61. See id. at 23 ("[A]lthough the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions."). The Court also upheld provisions in BCRA establishing public financing of presidential elections, id. at 90, and imposing disclosure requirements on candidates for office, id. at

12 510 N. Y. U REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 have increasingly expressed their discontent with the case. 62 Justice Thomas has stated that Buckley is too permissive with regard to campaign reform, arguing that contribution limits suppress speech and should be subject to strict scrutiny, and that both contribution and expenditure limits are unconstitutional. 63 Justice Kennedy has expressed concern over the impact of Buckley'S split decision, pointing to the development of new forms of "covert" speech, such as "soft money," devised for the sole purpose of avoiding contribution limits. 64 Taking the view that Buckley is too restrictive of legislative attempts at campaign reform, Justice Stevens, while he was still on the bench, attacked the foundational premises of Buckley, arguing that "[m]oney is property; it is not speech.,,65 In his view, even though money can facilitate speech, money is less deserving of First Amendment protection. 66 Justice Breyer has similarly challenged the premise that money is speech, suggesting a need to reconsider Buckiey.67 With such divergent opinions, there is no consensus that Buckley should be overruled, or, ifit were, what standard should supplant the Buckley framework. 68 Despite the discontent with its flawed analysis, Buckley remains the controlling case The Court has given mixed signals on this issue. For example, the Court affirmed Buckley's vitality and applied it in Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, (2000), even while individual justices expressed discontent in their opinions. See, e.g., Nixon, 528 U.S. at (Kennedy, J., dissenting) (calling for the Court to overrule Buckley). Indeed, in Nixon, unlike in many other cases applying Buckley's strict scrutiny, the Court upheld state contribution limits. Id. at See, e.g., Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 431, (2001) (Thomas, J., dissenting) ("As an initial matter, I continue to believe that [Buckley] should be overruled. Political speech is the primary object of First Amendment protection. And it is the lifeblood of a self-governing people. I remain baffled that this Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend." (internal citations omitted)). 64. See Nixon, 528 U.S. at 406 (Kennedy, J., dissenting) ("[T]he compromise the Court invented in Buckley set the stage for a new kind of speech to enter the political system. It is covert speech. The Court has forced a substantial amount of speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits... "). Justice Kennedy has specifically called for overruling Buckley, thereby "free[ing] Congress or state legislatures to attempt some new reform, if, based upon their own considered view of the First Amendment, it is possible to do so." Id. at Id. at 398 (Stevens, J., concurring). Unlike Justice Thomas, Justice Stevens would be more likely to find limits constitutional. 66. Id. at 399 ("The right to use one's own money to hire gladiators, or to fund 'speech by proxy,' certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases."). 67. See id. at 400 (Breyer, J., concurring, joined by Ginsburg, J.) ("[A] decision to contribute money to a campaign is a matter of First Amendment concern-not because money is speech (it is not); but because it enables speech."). 68. It is also possible that the Court may uphold a campaign finance measure without overruling Buckley. While Buckley rejected specific limits, it did not close the door to upholding some limits, if supported by new facts and interests. 69. See, e.g., Thalheimer v. San Diego, No , , , 2011 WL

13 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 511 Rather than overrule Buckley, the Supreme Court has upheld and extended its reasoning in a wide variety of campaign regulations over the last thirty-five years. The Buckley analysis has been expanded to many other contexts, including both independent 70 and coordinated 7! political expenditures, corporate political contributions,n and spending by and contributions to political action committees (PACs). With each repetition of Buckley'S core reasoning, the Court reinforced the money-as-speech paradigm and thus further ignored broader equality concerns. The Court also repeatedly reaffirmed that avoiding corruption or the appearance of corruption are the only permissible justifications for limiting campaign money,?3 In focusing on the paramount importance of individual speech, , at *1 (9th Cir. Jun 09, 2011) ("The district court correctly recognized that even as the campaign finance reform landscape has shifted, nearly four decades after the Watergate break-in Buckley's expenditure-contribution distinction continues to frame the constitutional analysis of campaign finance regulations.") 70. See Colo. Republican Fed. Campaign Comm. v. FEC (Colorado 1),518 U.S. 604 (1996) (holding that political parties have the right to make unlimited independent expenditures-i.e. not coordinated with a particular candidate). 71. When the parties in Colorado 1 came back before the Court five years later, the Court clarified that any expenditures by a political party that are coordinated with a particular candidate are functionally contributions and may be limited consistent with the First Amendment. Fed. Election Comm'n v. Colorado Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 431,465 (2001). 72. In First National Bank of Boston v. Bellotti, the Court invalidated a Massachusetts statute prohibiting all corporate contributions or expenditures used to influence the outcome of such referenda. 435 U.S. 765 (1978). The Court concluded that the statute restricted core First Amendment speech, regardless of whether the source was an individual or a corporation. Id. at Corporate contributions and expenditures could only be limited to serve a compelling state interest, which was found lacking. ld. at 792. The Court did, however, leave open the possibility that with a different record, a different result might follow: According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee's arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government. /d. at (internal citations omitted). The Supreme Court later followed through on that logic in Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), overrnled by Citizens United v. FEC, 130 S.Ct. 876 (2010). In Austin, the Court upheld a Michigan statute prohibiting corporations from using general treasury funds for political expenditures. The Court found that the statute was sufficiently narrowly tailored to maintain the integrity of the electoral process because the statute prevented only expenditures from a corporation's general treasury, but allowed for expenditures from a segregated political fund. Id. at 660. But see Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 259 (1986) (finding a FECA provision prohibiting corporations from using general treasury funds for expenditures to be unconstitutional as applied to a non-profit corporation, since the corporate defendant was formed to disseminate political ideas rather than to amass capital and therefore was not the type of organization that had been the focus of regulation of corporate political activity). 73. E.g._Fed. Election Comm'n v. Nat'l Conservative PAC, 470 U.S. 480, (1985) (NCPAC). In NCPAC, the Court applied strict scrutiny to invalidate a federal statutory provision restricting gifts by political action committees in support of a presidential candidate. ld. at 50 I.

14 512 NYU REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 the Court thus downplayed the importance of collective dialogue and robust public debate among the many, which also exists in the heart of the First Amendment right.74 Free speech is essential to the proper functioning of American politics and government and deserves the exalted position it occupies in our legal system. Buckley and its progeny, however, extend the commitment to free political speech beyond its proper limits to protect money in electoral campaigns. Today, the Court's First Amendment analysis elevates individual rights above the collective good. 75 If further reform of campaign finance law is to withstand constitutional scrutiny, the Supreme Court must be presented with, and recognize, additional compelling interests that justify deviations from the "money-equalsspeech" rationale. More speech can have negative, perhaps unintended consequences, particularly with regard to equality; completely unregulated speech can allow the few with power and money to shout down and drown out the voices of many. This clash of free speech versus equality values came to a head most recently in Citizens United. IV. WHAT ELSE MATTERS? COMPETING VALUES The road to Citizens United began with Buckley, and, in the decades since Buckley, the Court has followed a narrow path, hewing close to that seminal opinion. Starting as it does from Buckley, the Citizens United majority makes an apparently logical argument and draws an apparently logical conclusion. But, of course, if you start from a flawed premise, you get a flawed result. Citizens United started with the premise that money equals speech, took the additional step of extending individual speech rights to corporations and unions, and then held that those groups enjoy virtually unchecked rights to spend on political activities. Under the Buckley framework, the key question is whether there exists a compelling government interest to justify a campaign finance regulation.1 6 Thus, Since the expenditures were independent of and not coordinated with any candidate, the Court found that there was no danger of corruption and invalidated the restriction as not justified by a compelling governmental interest. Jd. at See also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) (invalidating restrictions on contributions to issue-related committees in the context of a ballot referendum on the grounds that, absent an individual candidate, there is no risk of quid pro quo corruption and therefore no sufficiently compelling government interest). 74. Texas v. Johnson, 491 U.S. 397,414 (1989). 75. The Court's analysis treats campaigns as if they are purely debating exercises in a theoretical market of ideas, ignoring the context of politics, soft money, and the real world of election of actual individuals to serve as representatives in government. See Mark C. Alexander, Money in Political Campaigns and Modern Vote Dilution, 23 LAW & INEQ. 239, 257 (2005) [hereinafter Alexander, Money in Political Campaigns). As Justice Souter once wrote in the criminal procedure context, there is "an air of unreality" in the Court's approach to campaign finance reform cases, and that unreality overlooks inequality in our politics. See United States v. Drayton, 536 U.S. 194 (2002) (Souter, J., dissenting). 76. Citizens United, 130 S. Ct. at 882. See, e.g., Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007).

15 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 513 courts and litigants look for compelling government interests to justify reform. But in so doing, they simply accept Buckley'S flawed premise that equates spending money with political speech, working within-rather than challenging-its terms. As I have explained, the Court's analysis in campaign finance cases lacks any significant consideration of equality. Bringing equality into the picture helps address concerns about the fact that elected officials spend more time chasing money than doing their jobs. It helps address the basic problem that our republican form of government is trampled in the stampede for campaign cash, and that, as elected officials focus greater attention on a relative few campaign contributors, these few gain power at the expense of the many. The arguments that follow can be seen, on the one hand, as compelling government interests in the Buckley framework, and, on the other, as independent interests that have been simply overlooked in the doctrine. In either case, however, they highlight the fundamental shortcomings of Buckley and the cases that have followed it, culminating in Citizens United. In the next pages, I look first at how elected officials and candidates devote significant amounts of time to the fundraising race, detracting from their ability to do their jobs. Next, I explore the concentration of power in the hands of an elite group of fundraisers. Analogizing to case law that established the oneperson, one-vote rule, I argue that we currently face an unconstitutional dilution of the power of the many as power is concentrated in the hands of the few. Finally, I point out how these and other concerns in the area of campaign reform speak to the central issue of how our government works. I argue that our republican form of government is threatened by the increased concentration of influence and power in the hands of the few, raising constitutional concerns under the Guarantee Clause. All these ideas speak to central notions of equality of participation in the political process. When the system is skewed in favor of the few, as it is today, our political process suffers. Equal participation is forgotten when individual First Amendment liberty is the focus of the debate, as in Citizens United. A. Time Protection The Court in Citizens United failed to give adequate weight to the government's interest in protecting the time of elected officials. As I have previously argued, this is a compelling interest that would justify government regulation under Buckley.77 Currently, candidates are locked in an escalating cycle of campaign fundraising that consumes their time. They spend more money each elec- 77. See generally Mark C. Alexander, Let Them Do Their Jobs: The Compelling Government Interest in Protecting the Time of Candidates and Elected Officials, 37 Loy. U. CHI. L.J. 669 (2006) [hereinafter Alexander, Let Them Do Their Jobs 1 (exploring the way in which the increasing demands of fundraising take time away from elected officials doing their jobs representing the people).

16 514 NY. U REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 tion,78 upping the ante and forcing themselves to start fundraising earlier and to do so more often in order to raise even more money for the next election. If a candidate is an incumbent, this translates to less time spent doing the job they were elected to perform and more time campaigning for reelection. Because of the need to spend increasing amounts of time fundraising, candidates have less time for other activities, including engaging with their constituents, whether in their official capacity or while on the campaign trail. As discussed below, as time and attention to constituents and the broader good fall by the wayside, elite interests are given a disproportionate voice; ultimately, egalitarian principles of democracy are threatened. 79 With every passing year, the costs of campaigns continually increase at a rate greater than inflation. 80 However, the amount of money any individual can give is capped,81 and the number of Americans who actually contribute has remained static. 82 As a result, members of Congress must engage in a money chase, constantly making fundraising phone calls, traveling to and attending fundraisers, and speaking to wealthy contributors. 83 Because elected officials face great pressure to pursue and woo the wealthy few who fund political campaigns, they spend less time on the daily business of governing and less time with constituents. 84 In order to meet the growing demand for campaign cash, candidates must reach beyond friends, voters, and their own constituents and travel to the wealthy, contributor-rich areas of the country to engage in fundraising. 85 They are thus forced to spend their time listening to 78. See, e.g., NBC News, The Midterms: Surpassing $2 Billion in Campaign Spending, FIRST READ (Oct. 26, :03 am EDT), the-midterms-surpassing-2-billion-in-campaign-spending (noting the record-setting amount raised by candidates in the 2010 election cycle). 79. In Let Them Do Their Jobs, supra note 77, I spend more time demonstrating the specific connections between fundraising demands, the drain on time, the reduced focus on constituents' needs and the resulting disproportionate power in the hands of the few. 80. See Jeanne Cummings, 2008 Campaign Costliest in U.S. History, POLITICO (Nov. 5, :28 AM EDT), ("The 2008 campaign was the costliest in history with a record $5.3 billion in spending... That sum marks a 27 percent increase over the $4.2 billion spent on the 2004 campaign."). 81. See Contribution Limits , FED. ELECTION COMM'N, (last visited June 22,2011). 82. See Candace J. Nelson, Spending in the 2000 Elections, in FINANCING THE 2000 ELECTION 22,35-38 (David B. Magleby ed., 2002) ("Very few Americans contribute to political parties and candidates in the United States, and the percentage who do contribute has remained relatively stable during the past twenty years, even as the costs of elections have increased."). 83. ld. (noting that "candidates need to spend more and more time trying to raise money from a very narrow donor base"). 84. See Alexander, Let Them Do Their Jobs, supra note 77, at (describing the fundraising behavior of candidates). 85. See id. at 705 ("Fundraising specifically requires candidates to call on a select group of individuals with money and/or access thereto, who are spread out at certain money hotspots around the country.") In the 2008 election cycle, residents from New York City, Washington, D.C., Los Angeles, Chicago, and Boston accounted for over $750 million in individual campaign contributions. See Ctr. for Responsive Politics, 2004 Election Overview: Top Metro Areas,

17 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 515 the concerns of a small group of moneyed individuals rather than to their own constituents. Moreover, because members of Congress cannot make fundraising calls from their official offices, they rent campaign offices on Capitol Hill and typically spend as much time as politically possible in these offices rather than in their legislative offices. 86 Together, this detracts from their job performance, creating "[a] very real distraction from the real business oflegislating.,,87 Fundraising activity thus dominates the daily grind of candidates, many of whom are already officeholders. This time might otherwise be used for interacting with voters; in the case of candidates who are already officeholders, this is time stolen from the people's business. Public officials focused on fundraising are not doing the people's work. Time protection should be a compelling interest for formal analytical purposes under the Buckley framework. 88 Perhaps more importantly, protecting the time of candidates and elected officials would help ensure greater equality of participation in our democracy. As I have argued elsewhere, time protection enhances the political process by allowing candidates to be educated by their constituents, enhancing representative democracy.89 In a functional sense, campaigns are simply part of a process by which we choose our elected leaders-a job interview of sorts. We the people have the power to choose who will represent us in our local, state, and national governments, and campaigns can help us in the decision-making process. In this way, campaigns serve a basic function of representative democracy: promoting conversations between the people and their candidates, and thereby empowering the people. 9o OPENSECRETS.ORG (July 13, 2009), As a result, candidates spend much of their time flying back and forth to these cities, in order to raise money. See Alexander, Let Them Do Their Jobs, supra note 77, at 705. These concerns would not apply for the very rare candidate who has a great deal of personal wealth and largely or entirely self-funds and thus does not need to raise money. 86. See id. at 42 (quoting Rep. Mel Levine (D-CA)). 87. MARTIN SCHRAM, CENTER FOR RESPONSIVE POLITICS, SPEAKING FREELY: FORMER MEMBERS OF CONGRESS TALK ABOUT MONEY IN POLITICS 38 (1995) (quoting Rep. Leslie Byrne (D-VA)). 88. The Supreme Court was presented with this theory in Randall v. Sorrell, 548 U.S. 230 (2006). While the Court did not endorse the argument, it did not expressly reject it, either in Buckley or Randall. See id. at ,282 (Stevens, dissenting) ("The Buckley Court never explicitly addressed whether the pernicious effects of endless fundraising can serve as a compelling state interest that justifies expenditure limits, yet its silence, in light of the record before it, suggests that it implicitly treated this proposed interest insufficient... Whatever the observations made to the Buckley Court about the effect of fundraising on candidates' time, the Court did not squarely address a time-protection interest as support for the expenditure limits, much less one buttressed by as thorough a record as we have here."). 89. See Alexander, Let Them Do Their Jobs, supra note 77, at See William J. Gore & Robert L. Peabody, The Functions of the Political Campaign: A Case Study, 11 POL. RESEARCH Q. 55, 55 (1958) ("[T]he values embodied in the institutional arrangements through which [campaigns are] mounted and executed constitute an elaboration of the constitutional provisions concerning representation... [C]ampaigns... embody traditional prac-

18 516 N. Y. U REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 Interaction between candidates and the citizenry is thus essential to fostering the kind of debate that is at the heart of American democracy. As the Court stated in Buckley, "In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course we follow as a nation.,,91 The political discourse enabled by the First Amendment reflects the Framers' values and promotes the ultimate goal of a representative democracy by empowering the people. The dialogue is obviously not a pure exercise in affirmative vision-sharing and policy debates; negative ads and cheap slogans permeate too many campaigns. Nevertheless, speeches, debates, and simple conversations with ordinary citizens make the American people direct participants in democratic dialogue. Every aspect of campaigning can have value, and I am concerned that candidates are narrowing their campaign focus from speaking to the public generally to only targeting a few elite donors. This narrowing offocus is corrosive to our democracy. Likewise, the drain on time has become an ever-growing distraction from incumbent candidates performing their legislative duties. Elected officials are in office for a finite period of time; reducing the time spent raising money allows them to focus on the jobs they were elected to fulfill. Indeed, elected officials themselves recognize that campaign fundraising pressures force them to neglect their responsibilities as lawmakers. 92 When candidates neglect their duties, it diminishes the quality of representation provided by an individual elected official and the overall capacity of the body politic to function to its fullest. There is one other notable aspect to the time protection concern. Not only are the people not represented when their elected officials are on the fundraising circuit, their representation is also undermined by the undue influence placed in the hands of the wealthy few who support the campaign machine. 93 Meaningful campaign finance reform protects the time of elected officials by attempting to limit overall campaign expenditures so that candidates spend less time fundraising and more time legislating and communicating with constituents and potential voters through campaigns.94 tices which manifest some of our answers to the most thorny aspects of the problem of representation."). 91. Buckley v. Val eo, 424 U.S. I, (\976). 92. See Ezra Klein, In Congress, Fundraising's Steep Price, WASH. POST, Oct. 31, 2010, at B3 ("When candidates for public office are spending 90 percent of their time raising money... that's time they're not spending with constituents or with public policy experts." (quoting Senator Evan Bayh», available at 10/29/ AR html. 93. See Alexander, Let Them Do Their Jobs, supra note 77, at ("As time is taken from the many and given to the few-those with money and access to individuals who have and contribute money-the power is drawn away from the great body of people and redistributed to the select few. The resulting departure away from the "true north" of representative government is a compelling concern."). 94. See Vincent Blasi, Free Speech and the Widening Gyre of Fund-RaiSing: Why Campaign

19 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 517 Not only does time protection fit the Buckley framework, it promotes both equality and speech interests, as candidates and officeholders can engage in broader and more meaningful conversations with a broad range of the citizenry. Campaign finance refonn-particularly in the fonn of expenditure limitationsdirectly responds to this failure in our democracy by freeing up time that would otherwise be spent fundraising so that elected officials can get back to the work of legislating. 95 The time protection rationale promotes and protects equality, in addition to the speech concerns that the Court relies upon so heavily. In Randall v. Sorrell in 2006,96 the Supreme Court was urged to accept the protection of elected officials' time as a compelling interest justifying the limitations on campaign finance imposed by the Vennont Campaign Finance Refonn Act. 97 One amicus brief argued that "protecting the time of elected officials from the burdens of constant fundraising presents a compelling government interest.,,98 Ultimately, the Court failed to reach a consensus on the issue, with three Justices arguing that the time protection argument was dismissed in Buckley v. Valeo. 99 However, the time protection argument was not completely lost on all members of the Court. Justice Stevens explained: Without expenditure limits, fundraising devours the time and attention of political leaders, leaving them too busy to handle their public responsibilities effectively. That fact was well recognized by backers of the legislation reviewed in Buckley, by the Court of Appeals judges who voted to uphold the expenditure limitations in that statute, and by Justice White-who not incidentally had personal experience as an active Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REv. 1281, 1324 (1994) ("Spending limits address a problem that is central to the system of representation ordained by the Constitution. The regulation of spending is the most efficacious way to alter how candidates spend their time.") 95. Of course, there is no single silver bullet to be found. Individuals with money who seek to influence politicians will seemingly always find another way to use their money to try to get influence. But I believe that public financing is an effective tool to help reduce the disproportionate impact of big money-and the resulting inequality-in campaigns. As the Court and scholars have warned, "money, like water, will always find an outlet." McConnell v. FEC, 540 U.S. 93, 224 (2003). See also Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REv (1999) (arguing similarly that political money is like water in that it will always go somewhere and is part of a broader "ecosystem"). 96. Randall v. Sorrell, 548 U.S. 230 (2006). 97. See id. at 245 ("In our view, it is highly unlikely that fuller consideration of this time protection rationale would have changed Buckley's result. The Buckley Court was aware of the connection between expenditure limits and a reduction in fundraising time. In a section of the opinion dealing with FECA's public financing provisions, it wrote that Congress was trying to 'free candidates from the rigors offundraising.' Buckley v. Valeo, 424 U.S. 1,91 (1976). The Court of Appeals' opinion and the briefs filed in this Court pointed out that a natural consequence of higher campaign expenditures was that 'candidates were compelled to allot to fund raising increasing and extreme amounts of time and energy.' Buckley v. Valeo, 519 F.2d 821, 838 (D.C. Cir. 1975).") 98. Brief of Amici Curiae former Senators Bill Bradley and Alan Simpson in Support of Respondents, Cross-Petitioners, at *2, Randall v. Sorrell, 548 U.S. 230 (2006), 2006 WL Randall, 548 U.S. 230 (2006)

20 518 NY. U. REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 participant in a Presidential campaign... The validity of their judgment has surely been confirmed by the mountains of evidence that has been accumulated in recent years concerning the time that elected officials spend raising money for future campaigns and the adverse effect of fundraising on the performance of their official duties Similarly, Justice Souter, joined by Justice Ginsburg, disagreed with the plurality for treating Buckley's brief mention of time protection as if it were a thorough review of a governmental interest. 101 Justice Souter rightly noted that the decision in Buckley is centered on the corruption argument, and that "the Court did not squarely address a time-protection interest as support for the expenditure limits, much less one buttressed by as thorough a record as we have here.,,102 The plurality's willingness to ignore the time protection interest in Randall highlights the Court's willingness to ignore the reality of campaign fundraising and cast aside equality concerns in pursuit of a narrow First Amendment analysis. Yet, while the Court's focus on the individual obscures the big picture of a distorted political process, the government's interest in time protection is as compelling as always, as no evidence suggests a fundamental change in the way candidates and elected officials spend their time. B. Vote Dilution The Court's narrow focus on individual speech rights also ignores the broad problem of disproportionate power resting in the hands of the wealthy few. Equality of participation is central to our democracy, from the founding principles of representational government and the post-civil War Amendments to women's suffrage and the Warren Court of the 1960s. Over time, we have witnessed a common theme of expansion of equality and a strong belief that power in a representative democracy should rest with the people as a whole rather than with the wealthy few. The modern concentration of political influence in the hands of wealthy elites dilutes the power of the average voter, denying her equal participation in the electoral process. The same equal protection principles that prohibit vote dilution should apply equally to modern day politics and the concentration of power and access among the wealthy. 103 Unequal participation offends both Supreme Court precedent and our nation's founding principles. 104 Since the nation's inception, the American repub ld. at (citations omitted) ld. at ld. at The broader debate over the tension between the First and Fourteenth Amendment values raised by the question of campaign finance regulation could occupy another entire article, and is beyond the scope of this Article. For an excellent frame for the debate, see generally FISS, THE IRONY OF FREE SPEECH, supra note See Wesberry v. Sanders, 376 U.S. I (1964); Reynolds v. Sims, 377 U.S. 533 (1964), WMCA v. Lomenzo, 377 U.S. 633 (1964); Lucas v. Forty-fourth Gen. Assembly of Colo., 377 U.S. 713 (1964); Gray v. Sanders, 372 U.S. 368 (1963).

21 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 519 lie has been grounded in the ideal of equality in political participation and popular sovereignty. los As James Madison wrote in The Federalist No. 39: We may defme a republic to be... a government which derives all its powers directly or indirectly from the great body of the people... It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or favored class of it... It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people The Framers thus established a representative government that was, in many ways, designed to give power to the many. 107 Since the early days of the Republic, our nation has become even more inclusive, demonstrating an increasing commitment to the constitutional promise of equality. los While voting was originally limited to the few, as the nation grew it shed its past of limited political participation. The ratification of the Voting Amendments I09 extended the right to vote beyond propertied, white males to all male citizens, a shift that reflects the nation's desire to expand participation in the political and governmental process to all people. The Fifteenth Amendment offered protection for newly freed slaves to participate equally in American politics and government, serving as an affirmation of a constitutional promise of equality.llo America's continually evolving concept of equality was further codified in the Nineteenth Amendment, III which was aimed at extending the franchise to women "not only as a means to improve women's lives, but also because it would symbolize recognition of women's 'equal personal rights and 105. Of course, while in principle, the Framers emphasized the importance of equality, in practice, the Constitution did not always live up to this ideal. The most obvious example may be the three-fifths clause, which acknowledged and implicitly approved of slavery. See U.S. CaNST. art I, 2, 'Il3. In the voting context, ideals of equality were espoused, but also not always lived up to, in terms of property, race and gender restrictions on the right to vote. See infra, notes and accompanying text THE FEDERALIST No. 39, at 241 (James Madison) (Clinton Rossiter ed., 1961) See Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964) ("The command of Art. I, 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.") Specifically, by continually removing barriers to voting and by extending the franchise to more individuals, these amendments grant greater equality of participation to more than half of the nation. See, e.g., U.S. CaNST. amend XV; U.S. CaNST. amend XVII; U.S. CaNST. amend XIX; U.S. CaNST. amend XXI; U.S. CaNST. amend XXIV; U.S. CaNST. amend XXVI. See also U.S. CaNST. amend XIII (providing for emancipation and prohibiting slavery); U.S. CaNST. amend XIV (guaranteeing the right to equal protection) U.S. CaNST. amend XXVI; U.S. CaNST. amend XXIV; U.S. CaNST. amend XIX; U.S. CaNST. amend XV U.S. CaNST. amend XV ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."). Ill. U.S. CaNST. amend XVIII ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.").

22 520 N. Y. U. REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 equal political privileges with all other citizens. '" 112 This outward expansion is consistent with principles of popular sovereignty, equality, and the political participation of the many over the concentrated power of the few. I 13 The Supreme Court has equally emphasized the importance of the popular vote in its decisions. If equal participation from the electorate is the foundation of popular sovereignty, vote dilution and its corollary, concentration of political power, run directly contrary to this ideal. I14 In a series of cases in the early 1960s, the Supreme Court repeatedly found vote dilution based on raciallymotivated voting patterns and voting districts unconstitutional, and established that the Equal Protection Clause of the Fourteenth Amendment required equality of representation and participation. I 15 In Reynolds v. Sims, for example, the Court posited that voting is emblematic of the equality that defines a representative democracy: Representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modem and viable state government needs, and the Constitution demands, no less. I 16 The Court thus highlighted the importance of equality in America's representative govemment. 1I7 Relying on this notion of equality, the Court established the one-person, one-vote principle. I 18 In other cases in the same general time span, the Court also built on the Fourteenth Amendment's equality concerns in the voting context, including reference to the Fifteenth and Nineteenth Amendments 112. Jennifer K. Brown, The Nineteenth Amendment and Women's Equality, 102 YALE L.J. 2175, 2178 (1993). Brown notes that, "[a]s the first right of a citizen, suffrage meant citizenship; it was the very substance of self-government." Id. See also Jacob Katz Cogan, The Look Within: Property, Capacity, and Suffrage in Nineteenth Century America, 107 YALE L.J. 473 (1997) (noting that "[t]o justify women's suffrage both women and men asserted the equality ofthe sexes") Alexander, Money in Political Campaigns, supra note 75, at 267. See, e.g., CONGo GLOBE, 39TH CONG., 1ST SESS (1866) (statement of Sen. Henderson) ("It is only where political power is in the hands of a favored few that oppression can be practiced. It is only where oppression exists that the agents ofa superior power are needed for protection.") See Cass R. Sun stein, Political Equality and Unintended Consequences, 94 COLUM. L. REv. 1390, 1392 (1994) ("The 'one person-one vote' rule exemplifies the commitment to political equality. Limits on campaign expenditures are continuous with that rule.") See, e.g., Lucas V. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713 (1964); WMCA, Inc. V. Lomenzo, 377 U.S. 633 (1964); Reynolds V. Sims, 377 U.S. 533 (1964); Wesberry V. Sanders, 376 U.S. 1, (1964); Gray V. Sanders, 372 U.S. 368 (1963) Reynolds, 377 U.S. at ld See generally Reynolds, 377 U.S. 533; Wesberry, 376 U.S. 1; Gray, 372 U.S. 368.

23 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 521 and their commitment to equality. 119 Today, political power is concentrated in the hands of the few, and the wealthy possess inordinate influence and access in politics and government. As the few elite fundraisers acquire more power, the many lose influence. 120 Because the wealthiest donors have the money to support many candidates, wealthy individuals become the constituents in a virtual multi-member district defined only by the limitations of fundraising. 121 Modem vote dilution concerns are thus a compelling government interest that would justify campaign finance reform as necessary to enhance equality of political participation. By focusing so heavily on money-as-speech in Buckley and cases subsequent to it, the Court has overlooked the compelling importance of participatory equality to American democracy. Citizens United only made the situation worse by overturning prior case law that allowed restrictions on corporate and union spending in campaigns. 122 Now, the flow of money from multi-billion dollar corporate donors could compound the political influence of the wealthy elite. Counter to principles of equal representation and equal participation, the few can increase their contributions and power more than ever before. 123 Power can accrue in the hands of the wealthy more easily than ever before. The voices of individual citizens and candidates can easily be drowned out by the avalanche of unchecked corporate spending, 119. Gray, 372 U.S. at 379 (holding that when one person is given multiple times the voting power of another person simply because of where they live, such discrimination violates equal protection); id. at 381 ("The conception of political equality from the Declaration ofindependence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote."). See also Wesberry, 376 U.S. at ("[A]s nearly as is practicable, one man's vote in a congressional election is to be worth as much as one another's... To say that a vote is worth more in one district than in another would... run counter to our fundamental ideas of a democratic government... "); Reynolds, 377 U.S. at 566 ("[T]he Equal Protection Clause guarantees the opportunity for equal protection by all voters in the election of state legislatures.") See supra Part III(A) (arguing that the importance of fundraising leads to politicians catering to few, wealthy individuals). See also Jane Mayer, Covert Operations; The Billionaire Brothers Who Are Waging War Against Obama, NEW YORKER, Aug. 30,2010, at 45 (describing the influence of two wealthy men, the Koch brothers, on Republican campaigns and positions) Alexander, Money in Political Campaigns, supra note 75, at Citizens United overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876,913 (2010) ("Due consideration leads to this conclusion: Austin should be and now is overruled.") As an individual's financial power increases, they gain increasing access to elected officials. As the U.S. District Court noted in the early stages of the McConnell v. Fed. Election Comm 'n litigation, The record demonstrates that large donations... to the political parties provide donors with access to Members of Congress. The record is a treasure trove of testimony from Members of Congress, individual and corporate donors, and lobbyists, as well as documentary evidence, establishing that contributions... are given with the expectation they will provide the donor with access to influence federal officials, that this expectation is fostered by the national parties, and that this expectation is often realized. McConnell v. Fed. Election Comm'n, 251 F. Supp. 2d 176,492 (D.D.C. 2003) (opinion of Kollar Kotelly, J.).

24 522 N. Y. U. REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 negating the promise of equality that all will be heard. C. The Guarantee Clause and the Republican Form of Government The time protection and vote dilution concerns go directly to one final issue of equality of participation in our political process-a larger structural issue that sheds light on the limited nature of the constitutional analysis in Citizens United. The Guarantee Clause mandates that the federal government protect the republican form of government. 124 The ever-growing influence of money in politics poses a danger to this form of government. Properly understood, campaign finance reform protects the republican form of government upon which the nation was founded. Unfortunately, this form of government is in jeopardy, now more than ever, following the Citizens United decision. 125 Central to the American republic is the ideal of popular sovereignty: 126 the idea that the people are supreme, and their political will is done in the central government by and through the duly elected representatives who make it up.127 As Thomas Jefferson once wrote, "A government is republican in proportion as every member composing it has his equal voice in the direction of its concern (not indeed in person, which would be impracticable beyond the limits of a city, or small township, but) by representatives chosen by himself....',128 In the American republic, the people must have control of their choices-not simply by having the right to vote, but by having the government act in their best interests. 129 Today, the increasing influence of the few is diminishing representatives' responsiveness to the many. 130 Article IV, section 4 of the Constitution promises that both federal and state 124. See U.S. CONST. art. IV, 4, cl. I ("The United States shall guamntee to every State in this Union a Republican Fonn of Governrnent.") 125. In a prior article, I explore this claim in greater depth. The article considers in greater depth the Supreme Court's interpretation of the Guarantee Clause, and how that has an impact on this specific issue. This indepth analysis of previous case law ultimately supports the argument that campaign finance is necessary to protect the promise of the Guamntee Clause. Mark C. Alexander, Campaign Finance Refonn: Central Meaning and a New Approach, 60 WASH. & LEE L. REv. 767 (2003) [hereinafter Alexander, Campaign Finance Reform] See id. at 775 ("[P]opular sovereignty is consistently believed to be at the core of the republican fonn of government."); Deborah Jones Merritt, Republican Governments and Autonomous States: A New Rolefor the Guarantee Clause, 65 U. COLO. L. REv. 815, 816 (1994) ("Most scholars would agree that a republican government is, at the very least, one in which the people control their rulers.") THE FEDERALIST No. 14 (James Madison) ("[I]n a democracy the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives."). See also Alexander, Campaign Finance Reform, supra note 125, at 775 ("Although the people are the source of power, they need not directly participate in the administration of the republican government.") See generally id. for a more detailed explanation of the way in which the Framers envisioned elected officials doing the people's work in government Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816), in X THE WRITINGS OF THOMAS JEFFERSON: , at 38 (paul Leicester Ford ed., 1899) See Alexander, Campaign Finance Refonn, supra note 125, at 780 nn See id. at nn

25 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 523 governments will always be republican. I3I This first clause of section 4-the Guarantee Clause--ensures that the states maintain the same basic form of government that the Constitution created for the national government by requiring that "[t]he United States shall guarantee to every State in this Union a Republican Form of Govemment.,,132 In the republic created by the Framers, the people could reign supreme without surrendering their daily lives, and the government could function without the gridlock of every citizen's individual participation. Describing the new experiment in government, the Framers consistently emphasized the power of the people. I33 Though the people cede power to their representatives, they retain leverage by holding their representatives accountable at the ballot box. 134 Alexander Hamilton thus believed that "[t]he people remained 'sovereign' only through the carefully guarded and complex machinery of election.,,135 The unchecked presence of money in politics presents a threat to the republican form of government. Currently, wealthy individuals maintain disproportionate political control, enabling elected officials to betray the responsibility of representation by exercising judgment on behalf of the few than on behalf of the many. 136 According to former U.S. Senator Bill Bradley: 131. See U.S. CONST. art. I-III; id. art. IV, 4, cl. 1. There was also a practical reason for the Guarantee Clause that was far clearer at the time of the Constitutional Convention than it is today. As originally created, the United States Senate was chosen by the legislatures of the respective states, and was only later amended to allow for Senators to be popularly elected. U.S. CONST. art. I, 3, cl. 1, amended by U.S. CONST. amend. XVII. Before the Seventeenth Amendment, the fact of state legislative involvement in the selection of the key chamber in the new national government gave the United States an additional vested interest in the forms of state government U.S. CONST. art. IV, See supra note 106 and accompanying text A supermajority of the people also have the power to amend the Constitution itself, although it is no small feat to amass that much popular support for anyone proposal. See U.S. CONST. art. V (allowing amendment of the Constitution following a two-thirds vote from both Houses of Congress, after which three-fourths of the States would have to approve any amendment). See a/so THE FEDERALIST No. 78 (Alexander Hamilton) ("I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness... ") GERALD STOURZH, ALEXANDER HAMILTON AND THE IDEA OF REpUBLICAN GOVERNMENT 53 (1970). See a/so THE FEDERALIST No. 37 (James Madison) ("The genius of republican liberty seems to demand on one side not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands."); THE FEDERALIST No. 49 (James Madison) ("As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish or new-model the powers of government, but also whenever anyone of the departments may commit encroachment on the chartered authorities of the others.") See Alexander, Campaign Finance Reform, supra note 127, at 815 ("If the unelected few-primarily wealthy individuals, corporations, and special interests-continue to tighten their grasp on the process, government becomes less and less responsive to the people... ").

26 524 N. Y. U. REVIEW OF LA W & SOCIAL CHANGE [Vol. 35:499 [N]othing breaks down trust in democracy as powerfully and surely as money. The truest model of how our republic is supposed to work is citizens speaking to their representatives and representatives responding to their constituents' voices and concerns. Big money gets in the way of that. It's like a great stone wall separating us from our representatives in Congress and making it almost impossible for them to respond to our commonsense request that they address the profound issues that affect all of us The influence of the few deprives the people of their representation and undermines the republic. In addition, the money race in campaigns narrows the choices the people have in whom they elect. Uncertain of their ability to raise the necessary amount of money, many potential candidates forego politics altogether. 138 The massive "war chests" that incumbents (and others) often amass have scared away would-be opponents. The need for large sums of money to mount a viable campaign thus reduces and eliminates competition. In doing so, it also skews the republican form of government. 139 Properly understood against this backdrop, campaign finance reform can be seen as a systemic effort to ensure a republican government that is responsive to the people. The unequal influence of moneyed interests like corporations imperils the republic, as the people cannot match the resources of those with access to great wealth who have their will done in Congress. 140 Without even acknowledging it, the Citizens United decision further cements this inequality and, accordingly, increases the threat posed to the republic. Without campaign reform, 137. BILL BRADLEY, THE JOURNEY FROM HERE (2000) See ASS'N OF THE BAR OF THE CITY OF NEW YORK SPECIAL COMM'N ON CAMPAIGN FINANCE REFORM, DOLLARS AND DEMOCRACY: A BLUEPRINT FOR CAMPAIGN FINANCE REFORM 3 (2000) 139. See id. ("The enormous burdens of fundraising on elected officials and candidates discourage many potentially serious candidates from participating in elections... "); Spencer Overton, But Some Are More Equal: Race, Exclusion, and Campaign Finance, 80 TEX. L. REv. 987, 989 (2002) (arguing that the current political system has a disproportionately negative impact on the participation and representation of people of color); Jamin Raskin & John Bonifaz, The ConstitutionalImperative and Practical Superiority o/democratically Financed Elections, 94 COLUM. L. REv. 1160, 1161 (1994) ("[T]he current regime in the United States, which we have elsewhere termed a 'wealth primary,' is replete with constitutional and practical deficiencies. Specifically, in the American wealth primary, large costs discourage candidacies by poor and working people and favor candidacies by the wealthy and by incumbents; private money becomes crucial to electoral victory as the champion fundraisers usually go on to win their races; and the massive role of private money ends up reducing competition, participation, and dialogue.") According to one commentator, Ordinary citizens are unable to match this influence, which is all too frequently directed to frustrate legislation that protects their rights, which gives them legal remedies, or which holds corporations accountable. Citizens groups believe that this factor more than any other is responsible for politician's [sic] failure to address critical issues and for the impotence of state regulators who serve these politicians. Available data suggests that voting in congress closely follows the money donated to political coffers. Michael Wynne, Integrated Health Services and Political Influence, CORP. MED. WEBSITE (Jan. 2001), _ political.htrnl.

27 2011] CITIZENS UNITED AND EQUALITY FORGOTTEN 525 the unelected few will continue to tighten their grasp on the process; their influence will corrupt the representative system of government; and inequality will continue to increase. 141 The Guarantee Clause imposes to the republican form of government, and so does campaign finance reform. The Citizens United analysis fails to consider that connection. With that failure, broad structural principles of equality are forgotten. With popular sovereignty at the heart of the republican form of government, the people reign supreme, and representatives in the central government act in the best interest of all the people-the many, not the few. All people should have their voices heard equally in the political process and the government that results from that process. But the influence of the moneyed few means a republican government in peril. The Guarantee Clause provides an affirmative obligation for the United States to protect the republican form in the states. Campaign reform addresses the concern and command of Article IV, and is one important way in which we can protect equality and the republican form of government. V. CONCLUSION Money drives the political process, and campaign finance reform appropriately tries to curb that influence. In part because of the role of money in American politics, the wealthy few hold the bulk of political power, and candidates spend inordinate amounts of time chasing funds from the elite. Caught up in the money chase, candidates and elected officials lose valuable time that could be spent on behalf of constituents. Ultimately, this undercuts the nature of the American republic, which, although founded on egalitarian notions of collective participation, has increasingly moved away from these notions over the past forty-five years. The prevailing paradigm in campaign finance reform cases focuses not on equality, but on individual free speech rights. In doing so, it ignores the broader principles of First Amendment theory and the importance of a robust public debate. Because the Court begins with the Buckley premise that money equals speech, it is unsurprising that things degenerate rapidly to the point where unlimited spending by corporations and unions seems logical and even inevitable. Citizens United is simply the culmination of the Court's narrow view of campaign finance, elevating individual speech rights and extending them to corporations and unions at the expense of the broad, egalitarian conception of the American 141. As a point of historical comparison, Thomas Paine complained of the government of England, "Sir William Meredith calls it a republic; but in its present state it is unworthy of the name, because the corrupt influence of the crown, by having all the places in its disposal, hath... effectually swallowed up the power... " THOMAS PAINE, COMMON SENSE (Jan. 10, 1776), reprinted in 2 THE LIFE AND WORKS OF THOMAS PAINE , , 12~22 (William M. Van der Weyde ed., Patriots' Edition, Thomas Paine Nat'l Historical Ass'n, 1925), available at I ch4s4.html.