Elections as a Distinct Sphere under the First Amendment
Files
Description
The strongest legal argument, in my view, for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, is the view that elections should be considered a distinct sphere of political activity. Elections are distinct from the more general arena of democratic debate, both because elections serve a specific set of purposes and because those purposed can, arguably, be undermined or corrupted by actions such as the willingness of candidates or officeholders to tread their votes on issues for campaign contributions or spending. Given this risk of corruption of the political judgment of officeholders, regulations of the electoral sphere – including how elections are financed – might be constitutionally permissible that would not otherwise be permissible outside the sphere of elections. This is the form of argument that must be accepted to justify measures such as ceilings on campaign contributions, disclosure of campaign spending, and limits on the role of corporate and union electioneering. To begin to reveal the structure of this argument and to justify it, I want to start with a recent U.S. Supreme Court decision. A few years back, in Arkansas Educational Television v. Forbes, the Court held that at least one phase of the electoral process, a candidate debate, is special for First Amendment purposes. At issue was the decision of a state-owned television station to exclude from the congressional candidate debate it was sponsoring an independent candidate who had qualified for the ballot; the station included only the Democratic and Republican candidates. In essence, the case required the Court to decide whether state journalism was best characterized as the state or as private journalism. In the Court’s view, the journalism categorization was more apt. As a consequence of this characterization decision, the constraints of content and viewpoint neutrality that might otherwise bind agencies of the state were held not to apply to a public television station. Yet the Court went on to add an intriguing qualification. According to Forbes, candidate debates play a special role in democratic politics. Therefore, the Court decided, state-sponsored debates are subject to the requirement of viewpoint neutrality, even though the Court recognized that other public television programming, including political programming, could be as viewpoint-skewed as the stations management desired. The Court held that the First Amendment applied in one way to general activities of the state, another way to activities of state-owned media, and yet another way when state-owned media sponsored candidate debates as part of the electoral process. My goal here is to explore the implications of the Court’s holding that the First Amendment requires unique treatment of candidate debates because such debates play a special role in democratic politics. More broadly, I want to explore a possible extension of this principle: Is it possible that other aspects of electoral politics could also be the subject of special election-specific First Amendment principles because of their role in democracy? Even if the current Court would not accept this extension of Forbes, is it nonetheless a consistent direction along which constitutional oversight of politics might logically proceed?
Source Publication
Money, Politics, and the Constitution: Beyond Citizens United
Source Editors/Authors
Monica Youn
Publication Date
2011
Recommended Citation
Pildes, Richard H., "Elections as a Distinct Sphere under the First Amendment" (2011). Faculty Chapters. 1954.
https://gretchen.law.nyu.edu/fac-chapt/1954
