The Balkinization blog is running a symposium, based on an earlier in-person conference, on “Free Speech in Crisis and the Limits of the First Amendment“. My contribution is an excerpt from an essay I published in a book titled Money, Politics, and the Constitution, which in turn drew on this essay I co-wrote with the greatly-missed Fred Schauer, Electoral Exceptionalism and the First Amendment, 77 Tex. L. Rev. 1803 (1999).
Here’s an excerpt from the Balkinization symposium:
… The primary goal of this essay is to explore the possibility of electoral exceptionalism, rather than to evaluate any particular laws or policies that could be applied to elections as a result.
Competing Conceptions of Rights
That there is some “normal” or “standard” conception of what First Amendment doctrine does is widely believed. This off-the-rack understanding of the doctrine, centrally informed by such icons of the First Amendment tradition as Brandenburg v. Ohio, New York Times Co. v. Sullivan, New York Times Co. v. United States (The Pentagon Papers case), Cohen v. California, and Texas v. Johnson is thought to represent the essential form of First Amendment protection. Departures, generally in the direction of less rather than more stringent protection, are routinely denigrated as exceptions. We often hear the argument from the Supreme Court and others that these and other cases establish something like a compelling interest standard for any regulation of speech, that the compelling interest standard is practically unattainable, and thus that any proposal for regulation of campaign- related speech or expenditures would be tantamount to carving out an exception from the First Amendment.
This view tends to be associated with an individualist conception of the purposes of the First Amendment. If the First Amendment protects rights intrinsic to essential attributes of individual personhood, autonomy, or dignity, such as the right to self-expression, it is easy to see how one might conclude that First Amendment “rights” should not depend in significant ways on the particular contexts in which they are asserted.
That many might think the First Amendment should be understood in this way comes as no surprise….
There is, however, an alternative “structural conception of rights.” On this view, rights are a means of realizing various common goods, rather than being protections for individualist interests against collective judgments about those common goods. Rights do protect the interests of the rights holders, but not only those interests; the protections that rights bestow are not justified because they protect these individualistic interests, but because rights protect various spheres or domains from governmental intrusion on the basis of constitutionally impermissible reasons. Rights are not general trumps against appeals to the common good; instead, they are better understood as channeling the kinds of reasons that government can invoke when it acts in certain areas.
In this structural conception, rights function as linguistic tools that the law invokes in the pragmatic task of bringing certain issues before the courts for judicial resolution. Rights exclude government action within certain contexts in order to preserve the normative integrity of various domains, as constitutionally delineated. So, rights protect a certain conception of public education; they protect a certain conception of religion and the boundary between religion and the state; they protect a civil-service bureaucracy from the intrusions of partisan politics; they define the appropriate structure of the sphere of democratic politics; and they protect other spheres from state intrusion on the basis of impermissible purposes. Far from standing opposed to the pursuit of various common goods, rights are the tool through which constitutional law creates and preserves common goods, such as democratic education, politics, religion, public service, and other domains that help realize various social values. In other words, rights help create a constitutional culture by differentiating various domains from each other and precluding the state from acting on certain reasons in some of these domains, even if those same reasons could properly form the basis for state action in other domains.
This structural conception of rights is deeply rooted in the American idea of constitutionalism itself. This idea did not begin with philosophical conceptions of the person and reason out from there to rights. It was rooted in the experience of government, both English colonial administration and state governments after the Revolution….
Elections as Bounded Spheres
With respect to elections and regulation of campaign finance, then, the question is not whether such regulation intrudes on some abstractly conceived individualistic interest in liberty or self- expression. It is whether the domain of electoral politics should be recognized as a domain distinct, for First Amendment purposes, from other domains, such as the general sphere of public discourse. Elections are already highly structured spheres, including regulations that would be impermissible in the general domain of public discourse. There are limits on what voters are permitted to express at the ballot box; mandatory disclosure obligations on the identity of political speakers; content- based regulations of electoral speech, ranging from mundane constraints such as electioneering near polling places to more dramatic ones, such as selective bans on contributions from some speakers (for example, corporations); and a series of other constraints. Moreover, elections are already structured in many ways that could be conceived as impinging upon constitutional rights other than those in the First Amendment. For example, what considerations justify requiring that voting be viva voce, as in the late-eighteenth century, or by open balloting, as it was through much of the nineteenth century, or by the secret balloting process that did not become widespread in America until the late-nineteenth century? Any of these choices prefer some modes of electoral practices over others on the basis of judgments about “better” forms of democracy. Are the rights of self- expression, free speech, or the right to vote, violated by any of these choices? We do not stop to consider that a serious question, though it could be. The justification of these structures is that they promote a “fairer” mode of representation, that they enhance the deliberative quality of choosing candidates and making policy, or that they improve the quality of voter decision-making. These are precisely the kinds of justifications that would be offered for some types of campaign finance reform….
The question, then, is whether some degree of government regulation in the service of enhancing the electoral process, based on the diverse justifications that have been offered for doing so, ought to be permissible. More particularly, the question is whether regulation should be permissible to remedy various perceived pathologies of current electoral discourse, even if that same degree of government intervention would be impermissible to remedy the parallel pathologies of non-electoral discourse in roughly comparable situations. Even more specifically, the question is whether such regulation ought to be permissible against the perceived distortions resulting from the undue influence of wealth, even if doing so would leave an imbalance in other sources of political influence. Accepting that position would require accepting the idea that elections can be demarcated, for First Amendment purposes, from the general domain of public discourse. This is both a normative question in First Amendment theory and a functional question of whether any regulatory approach can enforce this boundary with sufficient integrity.
Oddly, the Court in Buckley never confronted this issue in either of these terms. There had been little academic development or sustained public debate of the First Amendment perspectives surrounding regulation of elections at the moment of the Court’s momentous and baptismal engagement with these issues in Buckley. Thus, the Court assessed the Federal Election Campaign Act of 1974 by assimilating general principles of First Amendment adjudication that apply in the broad domain of public discourse without considering in any depth whether the kind of domain- specific analysis it applies in other areas of speech—including political speech— should apply to regulation of election-related spending….