Daaron Kimmel


In determining the shape of the free speech rights and anti-corruption concerns that courts must balance in campaign finance cases, judges are influenced by their own underlying understandings of what an ideal democracy should look like. For judges to decide whether the government is appropriately regulating the political process, the rules that allow all citizens to interact with and shape their democracy, judges must first decide what that democracy ought to look like. This affords judges a great deal of discretion in campaign finance cases. Citizens United v. Federal Election Commission is a particularly bold judicial attempt to reshape the processes of American democracy. The Supreme Court's constitutional analysis stems not from clear, externally-established meanings for the concepts of free speech and corruption, but from the majority Justices' underlying vision of democracy. Such decisions should properly be left to Congress. The Court's sweeping language in Citizens United has already created problems for lower courts attempting to follow it as precedent, and if interpreted broadly could lead to even more laws being struck down. And polls show that the decision seems to be extremely unpopular with much of the public, many of whom also appear to disagree with the Court's understanding of corruption and democracy. If these feelings persist in the long term, the Court's direction may prove to be unsustainable.