Academic journal article Texas Law Review

Regulating Election Speech under the First Amendment

Academic journal article Texas Law Review

Regulating Election Speech under the First Amendment

Article excerpt

Campaign finance reform has become the Vietnam of First Amendment theory and doctrine. Or perhaps, in deference to the sensibilities of my generation, I should say that it has become the Kosovo, since the beneficence of our intentions in the latter case is so much more apparent. With the best of motives, we have created a quagmire.

My own untutored inclination would be to approach the issue of campaign finance reform by focusing on floors rather than ceilings.1 Instead of restricting expenditures, it would seem to me easier and more efficacious to require each broadcast licensee, as a condition for its license, to reserve a fixed amount of time for the speech of bona fide candidates during an election. Such an approach would endow candidates with the opportunity to participate meaningfully in public deliberation. It would be simple and efficient. It would diminish the elaborate, intrusive, and expensive regulatory regime that we presently endure. I very much doubt that after Red Lion2 there could be any serious First Amendment objection to such a scheme,3 and, although the scheme might be challenged as a taking of the property of broadcasters, my guess is that such a challenge would not prove insuperable. For whatever reason,4 however, neither Congress nor the academy has elected to explore this approach, choosing instead to pursue egalitarian goals by imposing ceilings on contributions and expenditures during elections. But because these regulatory efforts have been torn apart by constitutional distinctions between contributions and expenditures,5 between corporations and persons,6 between vagueness and clarity,7 between issue advocacy and candidate advocacy,8 they have turned nightmarish in their complexity and futility.

Both Richard Briffault's Issue Advocacy: Redrawing the Elections/ Politics Line and Frederick Schauer and Richard Pildes's Electoral Exceptionalism and the First Amendment attempt to cut through the Gordian knot of these entanglements. They seek to do so by distinguishing the First Amendment doctrine applicable to political speech from the First Amendment doctrine applicable to elections. Somewhat along the lines of Edwin Baker's pioneering work,9 Briffault argues that because elections have a distinct sociological structure and purpose, speech in elections ought to be protected by a constitutional regime that flows from values appropriate to elections, rather than by a regime that embodies the values of political speech generally. Schauer and Pildes argue that such a domainspecific application of First Amendment doctrine would be no embarrassment to First Amendment theory, "because exceptionalism in the First Amendment is the rule and not the exception."10

In the past, I have argued that First Amendment jurisprudence in fact protects constitutional values inherent in particular social structures, rather than communication per se,11 and so I find the general approach of Briffault, Schauer, and Pildes highly congenial. What is necessary to make the approach convincing, however, is a detailed appraisal of what constitutionally would be gained, and what lost, by demarcating elections as a separate domain of First Amendment doctrine.

Schauer and Pildes in principle repudiate the necessity for any such appraisal. They believe that the illusion of this necessity flows from the mistaken view that "election-specific First Amendment principles . . . are inconsistent with essential features of the First Amendment itself. ss 12 From the bare fact that the First Amendment "is not a monolith," Schauer and Pildes seek to draw the conclusion that "developing distinct principles for electoral speech" is constitutionally unproblematic.13 But implicit in such an argument is the view, intimated by Schauer elsewhere,14 that there are no First Amendment principles by which the question of exceptions can itself by evaluated.

Such an extremely nominalist view of the First Amendment is highly implausible. …

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