THE REFORM DEBATE
Politics and the First Amendment
Few recent constitutional decisions have raised as much commentary as Buckley v. Valeo (424 U.S. 1 [ 1976]; document 3.1), and its progeny. On the one side, reformers attack the Supreme Court for misunderstanding both the First Amendment and how money works in politics. They read these cases as constitutional mistakes, as wrongheaded judicial meddling that magnifies the power of the rich. On the other side, deregulationists celebrate the Court for vindicating the First Amendment against strong public opinion. In their eyes, the Court has acted bravely to save the American political system from misguided (albeit popular) reform. Many commentators, of course, see some wisdom in both positions and seek to defend a view in between.
Ronald Dworkin presents a strong version of the reform argument. In his article, "The Curse of American Politics," Dworkin begins by asking whether Buckley was wrongly decided and ends by calling for the Court to overrule it (document 4.1). Cutting through to the Court's central justification, he finds that Buckley stands on an "individualchoice" model of politics. By this he means that its overall stance, which is deeply suspicious of government regulation, rests ultimately on the view that the First Amendment allows people to hear whatever they want, at least in the realm of politics. Although this notion may be attractive (especially to people who believe in a bustling, free marketplace of ideas) Dworkin thinks it fundamentally mistaken. To his mind, it misunderstands not only free speech, but also "what it really means for free people to govern themselves." The result is not just legal error but the weakening of democratic politics.
The mistake Dworkin finds in this view is that it sees equality as necessary to only one part of democracy. Although the individual-choice model gives each voter one vote and thus makes each an equally powerful judge of competing candidates and positions, the model ignores equality among citizens in another important respect. It allows some people more power than others as participants in the contest of forming political opinion. Wealthy individuals can "command [more] attention for their own candidates, interests, and convictions" than can others. As Dworkin puts it:
When the Supreme Court said, in the Buckley case, that fairness to candidates and their convictions is "foreign" to the First Amendment, it denied that such fairness was required by democracy. That is a mistake because the most fundamental characterization of democracy--that it provides self-government by the people as a whole--supposes that citizens are equals not only as judges but as participants as well.
According to Dworkin, we must have equal power not only to judge among the views presented--as the rule of "one person, one vote" seeks to guarantee--but also to command the attention of others to our own views. Such equality does not, of course, require that others find our arguments persuasive, but it does demand that each citizen be able to compete on equal terms for every other citizen's attention.
Dworkin believes this type of equality justifies regulating some spending in elections and thus necessitates overruling Buckley. But he sees little