FAN 120 (First Amendment News) Snapshots of David Cole #2: Chipping Away at Citizens United

If Citizens United is overturned, it will be because of the sustained efforts of critics in civil society to critique it, educate the public about why it’s wrong, and show through local initiatives that alternative reforms are possibleDavid Cole, August 22, 2016

This is the second post concerning  David Cole, the ACLU’s New National Legal Director (first post here).  In this post the focus is on Professor Cole’s views on the First Amendment and campaign finance laws, with a particular focus on Citizens United v. Federal Election Commission (2010).

This past April Professor Cole published an article in The Atlantic entitled “How to Reverse Citizens United.” Here are a few excerpts from that article (subheadings were added):

Change in the Court: New Opportunities & Challenges 

Professor David Cole

Professor David Cole

“Now, with a new Justice in the offing, the prospect of reversing Citizens United, among other Roberts Court decisions, seems suddenly larger, more plausible: For campaign-finance-reform proponents, the brass ring seems within reach.”

“But the matter is not so simple. Even if Scalia is replaced by a more liberal justice, the Court’s campaign-finance rules will not be easily reversed. The precedents extending First Amendment protection to campaign spending date back to 1976, long before Scalia became a judge. The Court generally follows precedent, and overrules past decisions only rarely, even as justices come and go. A new justice will not be sufficient.”

Incremental Steps: The Slow March to Victory

“If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbook.”

Start with the States

“Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones.”

The Role of Scholarship

“Scholarship could similarly lay the groundwork for a new approach to campaign finance. One promising critique of the Court’s recent rulings concedes that spending restrictions limit First Amendment rights, but maintains that the constitutional interest in protecting speech is outweighed by other compelling considerations. Although the Court’s most recent rulings assert that the only legitimate basis for restricting campaign spending is curtailing bribery—what the Court calls ‘quid pro quo corruption’—a number of scholars are persuasively pressing a broader understanding of the state’s interests. For example, Zephyr Teachout, a law professor at Fordham, has shown that the Constitution’s framers expressed an active desire to fight corruption, a category they understood to include, beyond mere bribery, the undue influence of wealth on politics. Robert Post, the dean of Yale’s law school, argues that ensuring ‘electoral integrity’ is essential to a functioning democracy, and justifies limits on the free flow of campaign cash. And in an important new book, Plutocrats United, Richard Hasen, a law professor at UC Irvine, maintains that the state’s interest in equality can justify rules aimed at countering money’s distortion of politics. Each of these arguments could provide a path toward a constitutional jurisprudence that allows states and Congress more leeway in regulating campaign spending.”

Related Articles by David Cole

  1.  The Supreme Court’s Billion-Dollar Mistake, New York Review of Books, January 19, 2015
  2. How Corrupt Are Our Politics?, New York Review of Books, September 25, 2014
  3. The Roberts Court vs. Free Speech, New York Review of Books, August 19, 2010

See also Jameel Jaffer, How Constitutional Change Happens: Q&A With David Cole, ACLU, April 4, 2016:

Cole: “My own sense is that incrementalism is pretty much all there is. The NRA, the gay rights groups, and the human rights groups all succeeded in significant part by acting incrementally. Campaign finance reform today is similarly proceeding incrementally, introducing clean election and public financing and disclosure reforms in the most receptive states first, and then seeking to spread those wins to other states. A full-frontal attack on Citizens United is unlikely to prevail, but attacking it around the edges shows more promise.”

 See generally, Jeffery Rosen Interview with David Cole: How Citizen Activists Can Make Constitutional Law, National Constitutional Center, April 18, 2016 (on YouTube) (discussion focuses on activist and litigation strategies)

Proposed Federal Law Would Ban Revenge Porn Read More


Law and the Modern Mind – Frankly

Jerome Frank, New Deal chairman of the Securities and Exchange Commission, renowned Yale Law School scholar, and a judge on the Federal Court of Appeals for the Second Circuit, wrote a study of how unruly psychological forces were at play in law.  Law and the Modern Mind (1930) countered claims that law routinely operated in the sphere of rational rules and external behavior.  According to Frank, consciousness—both the judge’s and those standing before the court in cases—intrudes upon our sense that shared, often unexamined behavioral norms might be unfailingly applied through the mechanism of legal justice.

I have returned to Frank and his work because Susanna Blumenthal’s superb study of contested mental capacity in the long nineteenth-century, Law and the Modern Mind: Consciousness and Responsibility in American Culture, readily borrows Frank’s title.  For Frank, the unrestrained—a potent mixture of emotions and cognition—always lurks just around the bend.  Yale University’s manuscript collection contains an unfinished novel by Frank that even more than Law and the Modern Mind reflects his commitment to the subconscious.  The phrase “scribbled on train” serves as the author’s headnote—which suggests that he began the draft when commuting between New Haven and his position on the federal appellate bench in Manhattan.  The notes for Show me an Angel, as Frank titled the novel, might be described as a maddening, Cortzar hopscotch between characters and plot lines.  It is almost impossible to follow where the novel is heading   Nevertheless, it is intriguing to juxtapose the ordered realm of Frank’s lengthy, sharply crafted judicial opinions with this submerged fictional and psychoanalytic imaginary drafted on the New Haven line.

Show me an Angel tells the story of a ménage a trois.  At the center of this complicated threesome—a married couple and another man–is Ann whose “double existence” fuels desire.  But the real theme is not the emotional tug of different parts of the relationship.  Instead, it is the tension between a fraught internal world and an outwardly directed world of action.  Chicago represents the unexamined life.  In language reminiscent of Carl Sandburg’s poems, Frank begins: “Chicago! Crude, rudimental, sprawling, dirty.  It turned its back contemptuously on what it deemed the effeminacies of the East.”  He evokes an epic invocation reminiscent of the Aeneid’s opening lines in the city’s virile call to labor:  “Its miles of uneven wooden sidewalks, its acres of vacant lots . . . the great railroad that waded an entrance into the city on stilts built In the very waters of Lake Michigan—this rawness, this truculence . . . . . “   ”Chicago is an undignified city, a bustling city, a new city.  Here men engaged in money-making, not as a routine task but as a buoyant adventure, audaciously, impudently.”

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Will, Agency, and the Modern Mind

Susanna Blumenthal’s tour de force Law and the Modern Mind takes readers into the murkiness of the life of the mind and the troubled notion of legal responsibility in situations where men (mostly men) were expected to be rational, orderly, and provident (though not necessarily benevolent) patriarchs. While generations of law students like myself made sense of the development of American private law through the raw profit-driven lens of legal realism and critical legal studies, Law and the Modern Mind skillfully weaves the skeins of the moral and the material, the burdens of autonomy, choice and agency that threatened private ordering in the new republic. A young republic founded on freedom, but not too much freedom—and autonomy for the right sorts of people—not slaves, women, indigenous people—rather those who were capable of bearing the burdens of choice and responsibility. Not those fragile genteel souls doomed to hysteria and hypochondria (p.65) but sturdy pragmatic capitalists freed from eccentricity and perversity. Perhaps unsurprisingly, this path of probity and temperance was too much to bear for many patriarchs. The contestants reveal capitalism’s shaky reach into the domestic sphere, when people turned to the courts to realign imbalanced affairs of the heart/wallet, and mind.

I read the book as a Latin Americanist, steeped in early modern Catholic idioms of divine design (and hence the abjuration of such post-Reformation questions of will and agency). Indeed, any judicial deliberation of the kind Susanna puts forth here would put testators and legislators on the expedited track to the Holy Tribunal—which would result in a confiscation of property– so this was a sub-par option. This is not to say that wills went uncontested in the civilian tradition (spoiler alert: they did not). Rather, disgruntled heirs in both civilian and common law jurisdictions framed their quarrels in distinct ways. Nonetheless, the default legal subject appeared as a template in both sides of the Americas. Indeed, some of the characters in Law and the Modern Mind appeared very familiar to me—intemperate, dissolute, stingy, and profligate. Let us call the aggrieved heirs homo malcontenti. If in the spirit of universalism, we find similar judicial efforts at pragmatism across the Americas, let me call attention to the ways in which those involved used different idioms given their religious and moral constraints.

Susanna deftly weaves together the political and material histories of a new republic, the reliance on Scottish Common Sense/pragmatism, and a preference for case-by-case adjudication guided by the actions of the rational/ [reasonable man] default legal subject. In a beautiful phrase, Susanna reminds us that, “judges were far from certain that most testators enjoyed anything like perfect mental health.” (p.164). They knew their subjects suffered from monomania or other afflictions that clouded their judgment. Other judges despaired of finding rationality in their “perverse” subjects (p.109). Alienists cloaked their theories of insanity in scientific shrouds with both dubious and impeccable academic credentials (Benjamin Rush seems to be on the impeccable side of the equation, while Isaac Ray less so).


In early modern Iberoamerica, judges were also grappling with the material and the moral although they deployed a universal morality. Catholics solemnly testated in the name of the Holy Trinity as they made contracts—the language and intonations were virtually the same. Missionaries circulated boilerplate language for indigenous peoples urging them to prepare for a sanctified death in terms of a contract. This neatly coincided with pre-existing indigenous rites ushering people from one world to the next. While many historians have studied the harmonization of will and contract as a result of evangelization, I have always questioned how this drive for harmonization affected medical understandings of the mind/body, soul, and spirit. In my reading of cases that unfolded at the time of imperial consolidation, there is no evidence that Spanish medical practitioners distinguished between the African/indigenous body and the European. In other words, we do not see claims that only genteel European minds were prone to hysteria: “Man in his primitive state is rarely ever insane. The Caucasian is about the only variety that can lay claim to this malady, and even in that variety, it is very little prevalent in despotic governments. It is in those that are free, in which mind can come freely into conflict with mind in which every chord of this curiously toned instrument is constantly strung, that every possible variety of mental derangement is of the most frequent occurrence” (p. 143, my emphasis). Did the Iberian insistence on similarity derive from divine design? What then did this mean for slaves or other legal dependents? Were they judged a priori irrational or weak and incapable of self-governance and freedom like women?
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Have We Lost Our Minds?

As the publication of the new Law and the Modern Mind attests, after a prolonged absence from the world of legal scholarship, the mind is back! And not a moment a too soon. In a political season in which it is a serious question whether one of our leading presidential candidates suffers from a serious personality disorder, and the news regularly induces the feeling of the whole world gone mad, work drawing out the connections between mental health and illness and political and legal regimes could not be more timely. And that is just what Susannah Blumenthal’s book provides. In her study of the changing understandings of human psychology that influenced virtually every branch of law as it developed in the 18th and 19th centuries, Susannah illuminates the paradoxical dependency of the autonomous rights-bearing individual on complying with certain (albeit shifting) behavioral norms, the violation of which could justify a judgment of mental incapacity and a forfeiture of the rights and status of the autonomous individual. A blend of intellectual history with detailed case studies, Susannah’s impressive new volume is far too multifaceted to address comprehensively here. Instead I want to identify four themes that came to the fore of my mind as I worked my way through this masterful study, namely, (1) the connection between the psyche of the individual and the psyche of the nation, (2) the distinction drawn between the realm of marriage and the realm of the market, (3) the influence on the law of capacity of both sex and religion, (4) romanticism and its place in the law of the modern mind.

The Psyche of the Individual and the State of the Union

The first theme that emerges from Susanna’s book is perhaps the one most relevant to the present moment. Chapter One commences with a description of the Revolutionary Era “physician-statesman” Benjamin Rush, whose Account of the Influence of the Military and Political Events of the American Revolution upon the Human Body, “which documented the novel mental diseases contracted by those who lived through this violent upheaval” (20), was written at the same time as the Constitution. As Susannah shows, the concern that the new political conditions created by the American Revolution would produce mental illness was pervasive. The widespread fear that “too much freedom” would lead to a loss of reason (and, quite simply, drive people insane) was matched in the years immediately after the Revolution by a concern for the mental wellbeing of those who were on the losing side of the War of Independence. Their condition was diagnosed by Rush as a peculiar form of melancholia on which he bestowed the term, “Revolutiona,” to signal that it was “brought on by the loss of power, status, property, and friends, and the accompanying neglect, insults and oppression” inflicted upon them by the victors. (Compare this characterization of losers in a political battle to the characterization of people who suffer a political defeat favored by today’s religious conservatives, who view themselves as victims of discrimination, entitling them to special rights and exemptions from the laws they unsuccessfully opposed). Rush’s view of the people who suffered defeat in the American Revolution as victims of a form of mental illness may have conveyed a dubious kind of compassion for them but it by no means suggested they were entitled to be protected from the change of regime which caused their suffering. Rather, Rush, like many of his contemporaries, viewed mental ailments like melancholia as conditions that undermined people’s capacity to exercise rights and justified subjecting them to the tutelage of guardians appointed by the state.
Rush was equally, if not more, concerned about the mental wellbeing of the victors, whose “passion for liberty” he thought “unhinged the judgment, deposed the moral faculty, and filled the imagination … with airy and impracticable schemes of wealth and grandeur”—a mental condition that he called, evocatively, “Anarchia.” Here, too, the resonance with our contemporary political situation is striking. What better term for the paranoia of the legions of Americans who firmly believe that “they’re coming for our guns,” not to mention the widespread conviction that (religious) conscientious objectors have an absolute right not to follow laws to which they object and the general repudiation of government and public obligations in the name of the most extreme forms of libertarianism? Susannah’s description of the understanding in days of yore that these sorts of ideas are symptoms of a mental pathology that the government is responsible for both causing and correcting, coupled with the further recognition that the mental state of the individual and the condition of society are interdependent, are welcome correctives to the widespread rejection of state responsibility for shaping citizens’ minds characteristic of both conservative and progressive thought today.

Marriage and Markets

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The Next Supreme Court Term

We are within six weeks of the start of the Court’s next Term, which promises to be two terms in one.  The first will consist of eight Justices.  The second will consist of nine, though when and by whom is unclear.

This leads me to wonder if next year the Court will have to forego its traditional custom of issuing all of its merits opinions by the end of June.  If there are deadlocks in cases in the first portion of the Term, presumably those cases will be held over for another argument in the second portion. If there are several of those (or if the new Justice is not confirmed until later in the Spring), can the Court finish its business by the end of June?  Seems doubtful.

It’s worth noting that Judge Merrick Garland is currently on one of the world’s longest paid vacations, as he must by tradition be recused from all cases so long as his nomination is pending.  I wonder what he does all day.


Hiring Committee Announcement

Professor Heather Elliott kindly passed on word related to Alabama University School of Law’s hiring goals for the year. Alabama seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. The school welcomes applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at facultyjobs.ua.edu; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee (facappts@law.ua.edu). The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases.


Law and the Modern Mind–Unanswerable Questions

I am honored to comment on Susanna Blumenthal’s new book. One of the many benefits of reading Law and the Modern Mind is that it offers a window into a range of common law topics from the nineteenth century, including contracts, torts, criminal law, and trusts and estates. The sheer breath of Blumenthal’s research is astounding, especially as she delves into the philosophy and psychology behind the presumption of rationality.

The book looks at how lawyers, judges, and scholars tried to craft exceptions to the presumption. One theme that really stood out for me is how society often struggles to reconcile unusual beliefs with rational behavior.  In effect, someone who has an idiosyncratic view (say, leaving all of their wealth to the family cat) can get characterized as irrational as a way of justifying a rejection of the choice that they rationally made.  Thus, the inquiry into rationality is sometimes a judicial tool for regulating behavior rather than a genuine inquiry into a person’s mental state. (There are lots of examples of this in the book.)

Even when the search into another’s mind is genuine, though, Blumenthal’s examination shows how difficult that task is. For criminal law in particular, the problem was identified in Ancient Greece. Can a rational person knowingly commit an evil act? Don’t people who do something evil think that they are doing good? Ron Rosebaum’s extraordinary book on Explaining Hitler argues that this claim can be made about Hitler himself, as as times he seemed to think he was helping humanity by killing Jews. The law faces this sort of dilemma from time to time when someone does something particular vicious. Must a person be insane if they, say, shoot up a school?  Why would a rational person do that? Or is it just too awful to admit that rational people would do that?

Blumenthal’s fascinating case studies provide lots of food for thought, but it’s not as if the twentieth or twenty-first centuries have solved these problems.  John Hinckley’s attempt to kill President Reagan in 1981 led to a verdict of “not guilty by reason of insanity.” (Blumenthal mentions that Charles Guiteau, who assassinated James Garfield in 1881, made a similar unsuccessful claim at his trial.)  Perhaps this was the correct assessment of Hinckley’s mental state then (recently he was released to the custody of his parents) or maybe it just struck people as too ridiculous to think that a rational person would shoot a president to impress an actress. (Though that seems less implausible now than it probably did then.)

This is a tour de force on a very challenging subject. I look forward to the rest of the Symposium.



UCLA Law Review Vol. 63, Issue 6

Volume 63, Issue 6 (August 2016)

President Nixon’s Indian Law Legacy: A Counterstory Carole Goldberg 1506
Principles of International Law That Support Claims of Indian Tribes to Water Resources Reid Peyton Chambers & William F. Stephens 1530
Crime and Governance in Indian Country Angela R. Riley 1564
Recentering Tribal Criminal Jurisdiction Addie C. Rolnick 1638
The Politics of Inclusion: Indigenous Peoples and U.S. Citizenship Rebecca Tsosie 1692



Tribal Sovereignty, Tribal Court Legitimacy, and Public Defense Lindsay Cutler 1752
The Double-Edged Sword of Sovereignty by the Barrel: How Native Nations Can Wield Environmental Justice in the Fight Against the Harms of Fracking Geneva E.B. Thompson 1818

The Mystery of the Title

I’m delighted to have the opportunity to comment on Susanna Blumenthal’s wonderful new book, Law and the Modern Mind.  This book unearths and synthesizes a treasure trove of civil lawsuits in the late 18th and 19th centuries involving capacity disputes relating to, among other things, wills, contracts, divorce, and tort liability.  Susanna gives us a detailed and comprehensive portrait of these lawsuits and the lawyers, judges and jurists who shaped them.  She works from the bottom up, tying a close reading of the litigation over capacity to the intellectual, political and cultural forces of the day.  We learn about the ways in which civil capacity lawsuits challenged the reigning Enlightenment conception of the rational individual – the default legal person, as she puts it – and how these challenges reflected and reinforced social, political and legal anxiety over sustaining a republican form of government in an emerging capitalist economy.  As she writes, “[t]hough litigation was about abnormality, the alleged maniacs unwittingly dramatized the vulnerability of the freestanding individual” (p. 14).  She brings to our attention the fact that litigating sanity and competency was not simply the province of the criminal courts, and questions about capacity were not confined to those situated on the margins of social and political life.  How were we to maintain a liberal republic of autonomous, rational citizens when the alienists, with their new science of the mind, were coming into court on a daily basis challenging the competency and sanity of parties to civil lawsuits?  What did these challenges say about the mental stability of judges, or people generally?  In what ways did judges draw the line between sanity and insanity, or between competence and incompetence, when almost everyone seemed to be suffering from some form of mental alienation?  These are only some of the fascinating questions Susanna explores in this important book.

I am going to focus my brief comments here on the title of Susanna’s book, Law and the Modern Mind, and what it might say about the place of book – and Susanna’s work more generally – in the history of legal thought.  As far as I could tell, neither the title, nor the phrase “the modern mind,” is expressly discussed in the book.  Of course, one might be inclined to assume that “modern mind” references an Enlightenment view of the rational subject, or conversely perhaps the mind as depicted by the nineteenth century alienists who came along to dethrone Enlightenment rationality.  Perhaps the title is intentionally meant to be ambiguous, straddling both sides of the debate.  Yet there is clearly more to this title than the dueling sides of a nineteenth century dispute over the liberal ideal of the rational, autonomous individual.

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Law and the Modern Mind Book Symposium



Concurring Opinions is delighted to introduce Professor Susanna  Blumenthal, and the participants in our online symposium on Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press, 2016).

In the book, Susanna explores how American jurisprudence has been shaped by differing conceptions of rationality,consciousness, agency, and accountability.  Focusing on the period dating from America’s founding through the end of the nineteenth century, the book shows how the developing conception of what she terms the “default legal person” (p. 7), modeled after cultural notions of the “free and independent man,” (id.) was both at the core of  the early Americans’ legal philosophy and simultaneously a threat to the founders’ vision of ordered liberty. Because they viewed self-government as both a psychological and political enterprise, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry.

Focusing on everyday private law adjudication, such as will contests and intrafamilial contracts, Susanna shows how judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Questions of capacity, for example, were particularly salient as lawsuits raised questions about “unnatural dispositions” (the title of one of her chapters).  She explores the connections between changing scientific views of insanity and the jurisprudence of culpability.

Law and the Modern Mind is extremely thought-provoking as it calls attention to the problematic relationship between consciousness and liability in American jurisprudence, to the difficulties reconciling medical knowledge of the mind with legal culpability.

To consider these and many other issues raised by Blumenthal’s book, we have invited an all-star – and multidisciplinary — cast of thinkers: Anne Dailey, Concurring Opinion’s own Gerard Magliocca, Michele McKinley, Nomi Stolzenberg, Martha Umphrey, and Steven Wilf.

We look forward to this discussion, and please join in with comments!  Susanna will also be responding to the commentary.