In the aftermath of the 2016 election, there has been a fiery and sustained discussion about the crisis of American democracy and the potential risk of America descending into autocracy. But there is a deeper crisis in American democracy arising from the interactions between political and economic inequality. When economically wealthy constituencies and organizations, from individual donors to big business, can exercise outsize influence on legislators and regulators, democracy cannot function properly. When racial minorities and other groups are systematically excluded from voting or have their votes diluted through gerrymandering or lack the same degree of access to media and online platforms, democracy founders.
This spring, the Knight First Amendment Institute and the Columbia Law Review sponsored a symposium exploring the possibilities for novel approaches to First Amendment doctrine that might be more sensitive to these problems. The discussion highlighted an important theme for the First Amendment, public law, and the improvement of democracy in the United States. A genuinely inclusive democracy requires laws and regulations that go beyond current doctrines on freedom of speech or even guarantees like voting rights. The approach must be truly expansive, assuring fair and equal access to the very infrastructure of democracy.
Democracy depends on equal opportunity for political influence. Political equality is a product of formal rights, such as the right to vote and the First Amendment protections of speech, association, and petitioning. But it is also the product of a wide range of institutions, organizations, and practices that collectively make up the nation’s democratic infrastructure. Voting rights depend on a larger network of state and local bureaucracies to administer the day-to-day work of voter registration and election administration. Public political debate depends on a largely privately run ecosystem of media companies, including online speech platforms like Facebook, to shape the public sphere. The ability to exercise political influence depends on the ways that different constituencies organize into durable and influential lobbying groups, from the Chamber of Commerce on the right to labor unions on the left.
A genuinely inclusive democracy requires laws and regulations that go beyond current doctrines on freedom of speech or even guarantees like voting rights.
Because of how important these institutions and organizations are in enabling political voice, exclusions and inequalities in access to these institutions — whether through restrictions on voting rights or attacks on labor unions — are especially troubling from both a moral and a constitutional point of view. Assuring an inclusive democratic infrastructure requires affirmative protections through constitutional doctrine and through a range of statutory, regulatory, and private measures.
First, consider the example of voting rights and the electoral system. The formal legal right to vote does not, in itself, guarantee that everyone can exercise that right effectively. Voting rights are influenced by various systems of election administration, from the systems for registering and validating voters to the security of balloting and counting machines. Recent concerns about voter suppression and about the potential hacking of ballot machines underscore the role that these broader institutions and actors play in constructing access to the franchise. Concerns about campaign financing and redistricting can be understood in similar terms: as legal structures that shape the exercise of formal electoral rights.
Second, consider the role of political associations and civil-society groups, from political parties to labor unions to advocacy organizations. These groups are essential to the exercise of democratic participation and to democratic voice. Though every vote makes a difference simply by raising the level of democratic engagement, individuals by themselves rarely exercise much political influence. But pooled into larger associations with the resources to lobby policymakers, mobilize voters, or engage in public campaigns on policy issues, individuals can have significant political impact. Yet here too, disparities in organizational capacity have tremendous implications for the effective exercise of political voice. That is an important part of the reason that the decline of organized labor is so detrimental from the standpoint of democracy. As organized labor declines, workers have fewer vehicles for advocating their political interests. At the same time, it is also why concerns about corporate power and the political influence of the business lobby have been central in critiques of democratic inequality. As business interests have become more sophisticated in lobbying state and local as well as federal policymakers, providing research as a basis for legislation (even drafting legislation), furnishing campaign donations, and engaging in public campaigns, they have expanded their political power.
Third, our communications infrastructure — so vital to facilitating speech — is managed by a range of mostly private institutions, a group that includes media organizations (newspapers, broadcast networks) and social media platforms (Facebook, Twitter). Disruptions, exclusions, and discriminatory practices within these infrastructures are of particular worry, since they can restrict the effective exercise of democratic speech and voice. The Russian interference in the 2016 election through the creation and delivery of “fake news” and the manipulation of media platforms is only the latest example of how meddling with the independence, accessibility, and neutrality of journalism and broadcast media undermines confidence in democracy.
Given how inequalities in democratic infrastructures limit the prospects for speech and association and the ability of citizens to petition government to redress their concerns, these inequalities raise familiar and novel First Amendment concerns. Recent litigation has raised, for example, First Amendment freedom-of-association arguments against gerrymandering and free-speech concerns about the fairness of online platforms like Twitter. First Amendment considerations about speech and voice have been basic reasons for campaign-finance litigation. But the breadth of these democratic infrastructures suggests the need for an even broader legal approach to fixing American democracy.
A Range of Protections
The problem of unequal democratic infrastructure lies behind much of the constitutional doctrine developed to protect the nation’s democratic system. Consider, for example, the establishment of voting as a fundamental interest or the extension of state-action doctrine to cover private political parties in cases challenging primary elections for whites only or the validation of regulation of broadcast communications. In these cases, the Supreme Court has sometimes relied on the First and Fourteenth Amendments to strike down inequalities in access to core democratic infrastructures. Unequal treatment in access to voting, in redistricting, or in competition in party primaries have all triggered heightened First and Fourteenth Amendment scrutiny.
The challenge for American democracy today is to imagine the set of formal legal regulations and informal norms and practices that would be necessary to bring about a fair, equal, and inclusive democracy — and then to develop systems to enforce these rules and norms.
Even recent cases that appear to be hostile to an egalitarian democratic infrastructure invoke this reasoning about the importance of democratic infrastructure. Citizens United, for example, struck down on free-speech ground limits on independent spending in political campaigns by corporations and other organizations. That 2010 decision has drawn enormous criticism for opening the floodgates of unequal campaign spending and donor influence. But the reasoning of the case invokes the importance of infrastructure to the democratic process — in particular, the importance of associations to enabling speech and political engagement. The Court reasoned that because associations are essential to speech and voice and because corporations are associations, free speech requires a loosening of restraints on the political activity of corporations. Citizens United may be wrong on the merits, but the majority opinion is notable for highlighting the importance of entities — here, associations — that enable democratic speech and voice.
The Constitution and the Rebuilding of Democracy
Crucially, these democratic infrastructures have been governed by a range of additional statutes, regulations, and private norms. Election infrastructure is governed by super-statutes like the Voting Rights Act and local administrative rules for election administration. Traditional media platforms have been shaped by norms of journalistic ethics and norms of equal treatment and neutrality. The challenge for American democracy today is to imagine the set of formal legal regulations and informal norms and practices that would be necessary to bring about a fair, equal, and inclusive democracy — and then to develop systems to enforce these rules and norms.
Conventionally, democracy is understood to depend on formal institutions and practices like elections, multi-party democracy, and the separation of powers. But the concept of democratic infrastructure offers a more accurate description than the conventional description of the different ways that speech, association, and petition can be undermined. This diagnosis explains why legal remedies need to extend beyond the formal reach of constitutional doctrine while also encompassing it. Some of these infrastructural inequities must be fought in terms of First and Fourteenth Amendment concerns, of course, such as campaign-finance doctrine, voting rights, and more. But there are major battles to fight over non-constitutional legal elements as well as private organizations and norms and practices to assure an inclusive and effective democratic system.
Take three current debates, for example.
One of the central battles for democratic inclusion today revolves around voter suppression. Some of this dispute involves statutory challenges under the Voting Rights Act and constitutional challenges under the Fourteenth Amendment against efforts by states like North Carolina and Texas to limit access to the ballot of minorities and poorer voters. But some of it involves issues that are all but hidden: the location of polling sites, the administration of the voting process, and so on.
In labor law, the Court seems poised to further restrict the ability of unions to require dues from non-members, again applying First Amendment speech doctrines. But a more expansive view of democratic infrastructure suggests a different approach. On the one hand, labor unions can themselves be viewed as promoting speech and associational values central to the First Amendment. On the other hand, declining union membership and increasing support for the right-to-work movement suggest the value of other legal and political strategies for promoting political association of different forms, such as organizing and advocacy by workers in the “alt-labor” movement.
Finally, as the debate over online media platforms suggests, these organizations are central to the functioning of the democratic public sphere. But so far there is no legal structure for assuring fair and equal management of speech online. The challenge of maintaining a fair and equal speech environment online has led to charges that the means on which platforms rely to curate content, like software algorithms, are unethical. As private actors, online media platforms are not bound by the First Amendment; in fact, the First Amendment arguably protects platforms from some types of regulation.
Debates about the meaning of the First Amendment and other constitutional doctrines have often been carried out in terms of the Constitution and Supreme Court cases interpreting it. But these constitutional values — in particular those related to speech, association, and petitioning — must also inform debates about statutory law, regulations, and private conduct.
The infrastructures of democracy encompass a wide range of institutions and organizations. They will fulfill their missions in American governance only if they, and all the forces of law and custom shaping them, take account of the fundamental values of democracy.
K. Sabeel Rahman is Associate Professor of Law at Brooklyn Law School and President of Demos.