In seeking to develop a more coherent theory of the First Amendment’s Expression Clauses, the Supreme Court has largely overlooked an important political interest: that of individual participation. This essay, which will appear in the NYU Journal of Legislation and Public Policy, describes how the Court has largely abandoned an individualist for a structuralist view of these provisions. Under this approach, expression doctrine aims primarily to protect not individual speakers, but social processes. The essay then traces this change and its implications in some of the Court’s leading election law cases. In particular, the Court’s recent overruling of Austin v. Michigan Chamber of Commerce in Citizens United v. FEC and protection of business corporations’ right to make unlimited independent expenditures in candidate elections rest on this change and show the great effects it has had on the structure and practice of our politics. The essay concludes by calling for recovery of this now subordinated participation interest.

Daniel R. Ortiz, Recovering the Individual in Politics, 15 NYU Journal of Legislation & Public Policy, 263–287 (2012).
UVA Law Faculty Affiliations
Daniel R. Ortiz