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First Amendment Freeze Play: Bennett’s Strategy for Entrenching Inequality

Rick Perlstein has described American elections as the “[p]lutocrats’ [r]ight to [c]hoose.” Conservative media and academics have also lamented the influence of a rising politico‐economic elite. A system premised on the trading of money for power, and power for money, can generate oligarchy or worse. Political science responds with “investor theories” of politics, where the key players are not the voters, but the donors. Politicians become vessels for their agendas.

When the public can see the law as a “witness and external deposit of our moral life,” the legitimacy of our Constitution, courts, Congress, and administration is enhanced. That legitimacy in turn empowers each of these instruments of government to better secure ethical values in law. A virtuous cycle prevails. On the other hand, when politics produces little more than a modus vivendi, crafted to reflect and reinforce the interests of the most powerful persons in society, law’s legitimacy suffers. As the legitimacy of legal institutions declines, they are less able to defend the political process from a parasitic and cynical pluralism. This creates a vicious circle familiar all the way back to Aristotle, who modeled the descent of democracy into oligarchy, aristocracy, and tyranny.

When the Supreme Court hears cases on campaign financing, these fundamental dynamics of democratic theory should be at the core of its concerns. Justice Elena Kagan reflected these themes in the opening of her brilliant dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, decided 5–4 at the end of the 2011 term. But they were sidelined by a cynical and incoherent majority committed to freezing into place inequalities in voice and influence. Now that one key voice within that majority has left the Court, it is time to reconsider Bennett with the same degree of respect for precedent that the majority gave to other milestones of campaign finance jurisprudence.