Producing Democratic Vibrancy

15 Pages Posted: 29 Nov 2016

Date Written: June 30, 2016


In the years since Citizens’ United v. Federal Election Commission, the contours of the debates over the First Amendment, free speech, and democracy are by now familiar. On the one hand, there is the anxiety that economic wealth — whether from corporations or wealthy individuals — could effectively purchase political influence through the mechanism of unregulated campaign contributions and expenditures or independent expenditures on electoral advocacy. On the other hand, there are concerns about attempts to regulate such campaign contributions and expenditures as governmental interference with the freedom of speech. I share in both these concerns — that economic wealth generates disparities in political power and influence, and that we need a variety of legal protections and structures to secure the political freedoms that make democracy possible. But in this short essay, I suggest that we need to broaden how we conceptualize the elements of democratic vibrancy and responsiveness, while recognizing that this change will have important implications for the legal and policy debates around democracy reform. In short, I argue that a vibrant democracy is not just one that protects free speech and electoral accountability; it is also one that empowers a wide range and diversity of constituencies to not only consume speech, but also to produce it, to be fully empowered political actors with the opportunity to shape and participate in the political process as more than just voters.

I suggest that we approach the theory of democratic vibrancy and failure from a different angle: the degree to which individuals and communities are empowered to act not as voters “consuming” political speech, but rather as producers of political speech and democratic action — as fully-fledged political agents capable of mobilizing, organizing, advocating, and running for office. This shift in focus to the potential inequities and disparities in the production of political speech and action points to a second important reorientation in this debate, away from the narrow focus on First Amendment doctrine and campaign finance reform — as important as these issues are — to the much broader set of laws, institutions, practices, and norms that comprise our foundational infrastructure for democratic vibrancy. Our toolkit for assuring a robust democratic polity involves a much wider range of possible reforms and interventions extending beyond electoral financing to encompass the very design and operation of the institutions of ordinary policymaking — and we will need all of these tools, not just doctrinal or campaign financing ones, to address the failures of twenty-first century American democracy.

The paper proceeds in three parts. Part I offers a brief critique of the doctrinal and theoretical focus in many campaign finance debates on the autonomy of the voter-as-consumer, overlooking the importance of disparities in who speaks, acts, or runs in politics. Part II then outlines the ways in which our current system of democracy produces problematic disparities in the production of political action — whether by limiting who runs for office, or narrowing the scope for meaningful political influence and advocacy by interest groups. Part III concludes and suggests a number of avenues for legal, doctrinal, and policy reform that extend beyond the traditional confines of the First Amendment/money-in-politics debate.

Keywords: Democracy, free speech, political inequality, participation

Suggested Citation

Rahman, K. Sabeel, Producing Democratic Vibrancy (June 30, 2016). Brooklyn Journal of Law and Policy, Forthcoming, Available at SSRN:

K. Sabeel Rahman (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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