Citizens United, Davis v. FEC, and Arizona Free Enterprise in Context: Lochner on Steroids and Democracy on Life Support (34,917 words) [July, 2011 draft]

Michael K. Curtis, Wake Forest Univ. School of Law

Abstract

Citizens United, Davis v. FEC, and Arizona Free Enterprise in Context: Lochner on Steroids and Democracy on Life Support puts these campaign finance decisions in a larger context of functional free speech in the service of democracy. Court decisons, economic developments, and legislation can either expand or contract free speech as a popular resource. The article urges a functional and practical conception of free speech that focuses on broader liberty, rather than liberty for an elite few. It sees popular sovereignty as the polar star by which to guide analysis. In that connection, the article traces the radical idea of popular sovereignty, early understanding of elected officials as trustees for the people with a fiduciary duty to act in their interest, the deTocqueville view of the realtion of concentration of wealth to democracy, and how the campaign finance system compromises the fiduciary interest of public officals. It shows how the Robert's court conception of liberty of speech bears a striking resemblance to Lochner era economic liberty, an approach in which practical economic realities were largely irrelevant.