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30 Const. Comment. 391 (2015)
That We Are Underlings: The Real Problems in Disciplining Political Spending and the First Amendment

handle is hein.journals/ccum30 and id is 395 raw text is: 








  THAT WE ARE UNDERLINGS: THE REAL
  PROBLEMS IN DISCIPLINING POLITICAL
  SPENDING AND THE FIRST AMENDMENT


                       Jedediah Purdy *

     We're gathered at the intersection of professional reason and
popular passion. The roughly two-thirds of Americans who have
said they strongly oppose Citizens United 'don't have a theory of
the First Amendment;2 they have a felt sense that the decision is
an emblem of the political condition that unites Tea Partiers,
Occupiers, and the Warren wing of the Democratic Party in
shared disgust: the superior political influence and access of big
business and great fortunes. This is the condition, or a subset of
the condition, that Larry Lessig and Zephyr Teachout call
corruption rightly understood: structural corruption that tethers
the attention and loyalty of officials to the concerns of their
financial patrons.3
     We're being asked to apply our special tools and questions-
conceptual coherence, doctrinal workability, alertness       to
unintended consequences, and clashing values - to a problem that
popular passion has put on the agenda: we are discussing how, and
how far, this popular sentiment can take constitutional form. On
these questions I have little to add to what others have said on this
panel and throughout the day. I think there is room in a sensible
constitutional scheme to limit money's role in politics. I have no
strong opinion about whether our doctrinal route should be an
expanded conception of corruption, which starts from the

    * Robinson 0. Everett Professor Law, Duke University School of Law. Thanks to
my co-panelist Larry Tribe and to David Grewal, Larry Lessig, and Zephyr Teachout for
helping me to understand my thinking on this topic.
    1. Citizens United v. FEC, 558 U.S. 310 (2010).
    2. Dan Eggen, Poll: Large Majority Opposes Supreme Court's Decision on
Campaign Financing, WASH. POST (Feb. 17, 2010, 4:38 PM), http://www.washingtonpost
.com/wp-dyn/content/article/2010/02/17/AR2010021701151.html.
    3. See ZEPHYR TEACHOUT, CORRUPTION IN AMERICA 276-90 (2014) (setting out
an anti-corruption principle as the basis of campaign finance regulation); Lawrence Lessig,
Out-Posting Post, in ROBERT C. POST, CITIZENS DIVIDED 97-105 (2014) (setting out a
version of the anti-corruption principle).

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