The Election Period and Regulation of the Democratic Process

By Zipkin, Saul | The William and Mary Bill of Rights Journal, March 2010 | Go to article overview

The Election Period and Regulation of the Democratic Process


Zipkin, Saul, The William and Mary Bill of Rights Journal


In the Bipartisan Campaign Reform Act of 2002, Congress introduced regulation of "electioneering communications" - broadcast communications that name a candidate, target the relevant electorate, and air within a specified time before an election. In doing so, Congress shaped an election period, a temporal zone preceding the election in which the government would have enhanced authority to regulate the democratic process. While upheld on a facial challenge in 2003, the electioneering communications framework was effectively struck down as applied to restrictions on corp orate political advocacy by the Supreme Court in 2007. Taking stock of these developments, this Article presents a detailed consideration of the election period model and its treatment by the Court.

A survey of election law reveals a divide: current doctrine generally treats the vote as so important that the government must regulate it, and political speech as so important that the government cannot regulate it. These commitments clash in the context of political speech surrounding the election. I develop the election period concept as a means of approaching this tension and challenge the Court's emphasis on the vote itself in validating regulation, advancing a model of the election period as not only the time in which voters make electoral choices, but also as the primary setting in which the representative relationship is constructed through the interaction between candidates and the people that surrounds the election. I argue that the election period model articulates a regulatory framework that blurs the sharp distinction between the domains of politics and elections and better recognizes the interest in protecting the representative process as well as the vote. In doing so, the Article calls attention to fundamental premises underlying the regulation of campaign finance, assessing how the structure of campaign finance law coheres with a broader conception of the democratic process.

INTRODUCTION ................................................. 534

I. THE ELECTION PERIOD MODEL ................................ 539

A. Representative Democracy and the Vote ....................... 540

B. The Election Period ....................................... 544

II. THE REGULATORY LINE: EXPRESS ADVOCACY AND ELECTIONEERING COMMUNICATIONS .......................................... 550

A. The Pre-BCRA Framework- Issue Advocacy and Express Advocacy 551

B. BCRA and the Regulation of Electioneering Communications ...... 554

C. WRTL and the Return of the Express Advocacy Line ............. 556

III. GOVERNMENT INTERESTS IN REGULATING THE DEMOCRATIC PROCESS . 560

A. Regulatory Interests before WRTL ........................... 561

1. Preventing Corruption and its Derivative Interests ............ 561

2. Austin's Different Type of Corruption ..................... 562

3. Protecting the Act of Voting ............................. 563

4. McConneWs, Interests in Preventing Undue Access and Promoting Democratic Self-Government ............................ 565

B. Articulating Regulatory Interests in WRTL .................... 568

IV. POLITICAL SPEECH AND THE VOTE .............................. 573

A. Regulation of the Vote and Political Speech .................... 573

B. Framing these Rights in Election Speech Cases ................. 575

V. REGULATING CORPORATE POLITICAL ADVERTISING IN THE ELECTION PERIOD ................................................... 578

A. Corporate Election Advertising and the First Amendment ......... 578

B. The Election Period Approach in the Corporate Advocacy Context . . 585

CONCLUSION .................................................. 588

INTRODUCTION

Constitutional doctrine governing campaign finance regulation has long relied on an array of lines marking permissible and impermissible limitations on political activity. …

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