Speaking to an audience of professors and graduate students, Yale Law School dean Robert C. Post ’69 presented his case for a constitutional basis for campaign finance reform and argued against the Supreme Court’s controversial Citizens United decision which allows a certain degree of corporate participation in political campaigns based on the First Amendment right to freedom of speech.
Post, speaking at a Tanner Lecture on Human Values in Lowell Lecture Hall on Thursday, made his case based on a theory of discursive democracy, in which all citizens have the right to a government which is “responsive” to their own electoral preferences—a goal he described as “electoral integrity.”
“Electoral integrity is necessary for the very First Amendment rights the courts and Citizen’s United are trying to protect,” he said.
Indeed, he argued, what the First Amendment ensures is the right of all citizens to have the “subjective experience” of engaging with their democracy to whatever degree they see fit.
“Corporations do not have the subjective experience of individuals,” Post said. “Corporations are things.”
Therefore, Post argued, they should not be treated as persons by the Constitution.
In addition to offering his own theory, Post presented the three arguments used more often in support of campaign finance reform in a representative democracy. To begin, he offered the ideas that the application of funds upsets the equality of democratic participation by all citizens, that those applications can distort public opinion, and that those funds can lead to a corruption of elected officials.
Predicting some counterarguments, Post further claimed that corporations also cannot be constitutionally protected “expressive associations,” whose purpose is to promote a point of view, but rather as “commercial associations” concerned with making a profit.
If corporations were in fact “expressive associations,” all corporate law would necessarily resort to First Amendment debate. As a result, corporate groups are considered qualitatively different from other political or expressive groups.
A response was given by Harvard Law School professor Lawrence Lessig. Lessig, who is also director of the Edmond J. Safra Center for Ethics, drew attention to the difficulty Post had in defining corruption, making a lighthearted jab at the Yale professor by implying that Harvard faculty might be less shy about confronting such a problem.
The discussion concluded with a question-and-answer session between the two speakers, moderated by Homi Bhabha, an English professor and director of the Mahindra Humanities Center.
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