Campaign expenditures and free speech

Harvard Civil Rights-Civil Liberties Law Review

Volumn 33, Issue 1, 1998, Pages

  Baker, C Edwin ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 11544298052     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (197)

1. 424 U.S. 1 (1976).
2. Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. REV. 663 (1997).
3. See, e.g., Leslie Wayne, Scholars Ask Court to Backtrack, Shutting Floodgates on Political Spending, N. Y. TIMES, Nov. 10, 1996, § 1, at 30 (describing efforts led by Ronald Dworkin, Brace Ackerman, and John Rawls to convince the Supreme Court to overrule Buckley).
4. Buckley, 424 U.S. at 20-21.
5. Id. at 19.
6. Id. at 48-49. See also id. at 54, 56.
7. Id. at 57.
8. See, e.g., Ronald Dworkin, The Curse of American Politics, N. Y. REV. OF BOOKS, Oct. 17, 1996, at 19. But cf. Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REV. 1281 (1994) (arguing that issues that the Court did not consider justify a different result).
9. See, e.g., Ronald Dworkin, The Curse of American Politics, N. Y. REV. OF BOOKS, 17, 1996, at 19. But cf. Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REV. 1281 (1994) (arguing that issues that the Court did not consider justify a different result).
10. See Buckley, 424 U.S. at 16. On this point, the Court both noted that it had "never suggested that the dependence of communication on the expenditure of money operates itself to introduce a nonspeech element," id. at 16, and, even if it did, the limitations "would not meet the O'Brien test because the government interests . . . involve 'suppressing communication.'" Id. at 17.
11. See, e.g., J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001 (1976); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609 (1982).
12. See, e.g., J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001 (1976); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609 (1982).
13. Previously, examining the issue only on the terms of the standard debate. 1 have at least implicitly approved of the decision in Buckley to strike down expenditure limits. See. e.g., C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 41-42, 255 (1989).
14. Within this analysis, the notion of institution or institutionally bound must not be too expansive, see infra text accompanying notes 85-88, and the institutional boundaries must be properly drawn. Properly drawing the boundaries of the institutionally bound electoral realm will be a crucial but contestable aspect of the argument of this Article.
15. Shapiro v. Kentucky Bar Ass'n, 486 U.S. 466, 483 (1988).
16. See, e.g., Chief Justice Hughes's observation that "the maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people . . . is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369 (1931).
17. NAACP v. Alabama, 357 U.S. 449, 469 (1958).
18. City Council v. Taxpayers for Vincent, 466 U.S. 789, 816 (1984) (emphasis added).
19. W. at 816 (rejecting the argument that Los Angeles should exempt campaign posters from its prohibition on attaching posters to structures such as utility poles).
20. [A]bove all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content . . . . To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. Police Dep't v. Mosley, 408 U.S. 92, 95-96 (1972) (emphasis added) (citations omitted). See Ahood v. Detroit Bd. of Educ., 431 U.S. 209, 231 n.28 (1977) (collecting cases rejecting the political/non-political distinction); see also BAKER, supra note 11, at 25-37 (critiquing the political speech theory of the First Amendment and giving a pragmatic explanation of the dicta referring to political speech as being special or "core").
21. But see Simon & Schuster v. N.Y. State Crime Victims Bd., 502 U.S. 105, 124-28 (1991) (Kennedy, J., concurring) (powerfully critiquing this usage of strict scrutiny and rejecting the compelling state interest test when the content of non-obscene speech is the _ only issue).
22. A broadcaster must, among other special campaign-oriented rules, make available her station for use by candidates and the amount she can charge for this use is limited. See, e.g., 47 U.S.C. §§ 312(a)(7), 315(b) (1994).
23. Although the ban on editorializing by public broadcasters that receive federal funds was struck down in FCC v. League of Women Voters, 468 U.S. 364 (1984), the separate ban on public broadcasting stations endorsing candidates, whether or not the station received federal funds, see 47 U.S.C. § 399 (1994), was not challenged in League of Women Voters.
24. See Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) (upholding restriction on a commercially oriented corporation's independent expenditures in support of political candidates).
25. See 5 U.S.C. § 7324(a)(2) (1994) (Hatch Act barring federal employees taking "an active pan in political campaigns"). The statute was upheld against facial challenge in United States Civil Service v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973).
26. See Anderson v. City of Boston, 300 N.E.2d 628 (Mass. 1978) (municipal corpora-tion had no constitutional right to engage in electoral speech), appeal dismissed, 439 U.S. 1060 (1979); see also Burt v. Blumenauer, 699 P.2d 168 (Or. 1985) (discussing limits on local governments' attempts to influence their voters' decisions in local referenda and contrasting it to their attempts to lobby elected officials at other levels of government, There is a temptation to cite Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), for the proposition that local governments are also allowed to discriminate against political speech in their policies about taking ads for placement on public property - in particular, on the outsides of buses. However, five members of that Court, Justice Douglas and the four dissenters, did not approve content discrimination here.
27. Although abuse is recognized, members of Congress are forbidden from using the franking privilege for "mail matter which specifically solicits political support for the sender or any other person or any political party," 39 U.S.C. § 3210(a)(5)(C) (1994), and are forbidden most uses of the frank for a certain number of days before an election or primary. See 39 U.S.C. § 3210(a)(6)(A) (1994).
28. Organizations described under 26 U.S.C. § 501(c)(3) (1994) ("501(c)(3) organizations"), contributions to which are tax deductible for the contributor, must not devote a substantial part of their activities to attempting to influence legislation or to participating in electoral campaigns. See Regan v. Taxation with Representation, 461 U.S. 540 (1983), Similarly, organizations permitted to participate in the federal workers charity fundraising drive are limited to those that do not "attempt to influence the outcome of political elections or the determination of public policy." Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806 (1985).
29. See Burson v. Freeman, 504 U.S. 191 (1992).
30. See Greer v. Spock, 424 U.S. 828 (1976). Although the Court did not rely on the distinction, it is interesting that in an earlier case where the Court reached arguably the opposite conclusion and protected the speaker on the military base, the speaker's political speech was not related to a partisan election. See Flower v. United States, 407 U.S. 197 (1972).
31. None of a group of First Amendment scholars (except me) seemed to find it odd or troublesome when Robert M. O'Neil reported at the First Amendment Scholars Conference that, after the Court held a restriction on funding religious publications out of a student activities fund used to fund various publications by student groups was unconstitutional viewpoint discrimination, Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819 (1995), Virginia responded by eliminating all discrimination against any student publication except for discrimination against partisan political publications. First Amendment Scholars Conference, Washington, D.C. (Nov. 17, 1995).
32. I do not claim that most of these decisions cannot be rationalized within existing doctrine - many come from doctrinal corners that justify special rules - nor do I claim that they were all properly decided. What they do show, however, and what is odd, is the frequency with which the law finds it necessary to pick out electorally oriented political speech for special regulation.
33. See Mill v. Alabama, 384 U.S. 214 (1966).
34. See Brown v. Hartlage, 456 U.S. 45 (1982). "It is simply not the function of government to 'select which issues are worth discussing or debating' in the course of a political campaign." Id. at 60 (quoting Police Dep't v. Mosley, 408 U.S. 92, 96 (1972)).
35. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
36. See CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973).
37. See 47 U.S.C. § 312(a)(7) (1994).
38. See, e.g., Friends of Howard Miller, 72 F.C.C.2d 508 (1979) (holding that a station that endorses one candidate must allow other candidates to respond); In re request by Nicholas Zapple, 23 F.C.C.2d 707 (1970) (enunciating the Zapple doctrine requiring that a station that allows supporters of one candidate to use it must allow equivalent use by supporters of the other candidate).
39. See 47 U.S.C. § 315(b) (1994); Kennedy for President Comm. v. FCC, 636 F.2d 432 (D.C. Cir. 1980).
40. See CBS v. FCC, 453 U.S. 367 (1981). Note that although it is plausible to allow the government to determine when a "campaign" starts for particular legal purposes, it would be absurd to think that it could determine when politics in a broader sense starts.
41. See 47 U.S.C. § 315(a) (1994). This obligation is the type of "penalty" on speech that has been treated as the fatal flaw in the right-of-reply law invalidated in Miami Herald v. Tornillo, 418 U.S. 241 (1974). See also Turner Broadcasting v. FCC, 512 U.S. 622, 656 1994) (interpreting this penalty on speech content, not the violation of editorial autonomy, as the constitutional evil in Miami Herald); Buckley v. Valeo, 424 U.S. 1, 50 (1976). If the station covers a candidate while the station is engaged in normal free press type journalistic activities, the coverage is increasingly interpreted by the FCC not to be a "use" by the candidate and. therefore, the law does not require - maybe constitutionally could not require - equal access for other candidates. A "use" occurs most obviously when the station supports a candidate by endorsement or by turning over the facility to a candidate or the candidate's supporters. The point requires more discussion, but the distinction between journalistic activities and "uses" where the station becomes a contributing part of a candidate's campaign might be understood as embodying a notion that the government gives station licenses to independent journalistic entities but not to electoral-oriented political groups. This distinction would explain rules that effectively restrict stations to journalism (of a electorally non-partisan sort) and other activities like entertainment but that bar, or at least burden, the stations' own partisan participation in campaigns.
42. Although the currently defunct fairness doctrine, see Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) (holding that the FCC's determination that the fairness doctrine no longer served the public interest was neither arbitrary nor capricious), once imposed some obligations of balance, those obligations never equaled the requirements imposed in the campaign context.
43. See Friends of Howard Miller, 72 F.C.C.2d 508 (1979).
44. See FCC v. League of Women Voters, 468 U.S. 364, 381 (1984) (stating that editorial opinions lie at the heart of the First Amendment).
45. See, e.g., Jonathan Weinberg, Broadcasting and Speech, 81 CAL. L. REV. 1101 (1993) (describing different First Amendment treatment of print and broadcasting as embodying conflicting theoretical commitments).
46. See C. Edwin Baker, Giving the Audience What It Wants, 58 OHIO ST. L.J. 311 (1997).
47. See C. Edwin Baker, The Media that Citizens Need (1997) (unpublished manuscript, on file with author).
48. Much of this regulation is not due to anything special about the medium or its supposed scarcity. See C. Edwin Baker, The Evening Hours During Pacifica Standard Time, 3 VILL. SPORTS & ENT. L.J. 45 (1996) [hereinafter Baker, Pacifica] (arguing that given an appropriately narrow reading of FCC v. Pacifica Foundation, 438 U.S. 726 (1978). the holding does not turn on greater constitutional power over broadcasting but is like the regulation of indecency in print, phone, and movie theatre contexts); C. Edwin Baker, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 SUP. CT. REV. 57, 81 [hereinafter Baker, Turner Broadcasting] (arguing that content concerns have historically justified, and should justify, structural regulation in all media, especially print media).
49. Much of this regulation is not due to anything special about the medium or its supposed scarcity. See C. Edwin Baker, The Evening Hours During Pacifica Standard Time, 3 VILL. SPORTS & ENT. L.J. 45 (1996) [hereinafter Baker, Pacifica] (arguing that given an appropriately narrow reading of FCC v. Pacifica Foundation, 438 U.S. 726 (1978). the holding does not turn on greater constitutional power over broadcasting but is like the regulation of indecency in print, phone, and movie theatre contexts); C. Edwin Baker, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 SUP. CT. REV. 57, 81 [hereinafter Baker, Turner Broadcasting] (arguing that content concerns have historically justified, and should justify, structural regulation in all media, especially print media).
50. Compare 47 U.S.C. § 315 (1994) (requiring equal opportunities for access to broadcast media for legally qualified candidates), and § 312(a)(7) (1994) (authorizing revocation of a station license for willful or repeated failure to allow equal access), with CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973) (holding that broadcasters are not required to accept paid editorial advertisements).
51. Neither the briefs nor any opinion supporting the Court's holding discussed this as an arguable unconstitutional condition, apparently because no one had predicted the doctrinal complexity that led to the intricate mix of portions of the law that the Court did and did not uphold. But see Buckley v. Valeo, 424 U.S. 1, 249 n.16 (1976) (Burger, C.J., dissenting in part) (observing that by severing the statutory provisions and upholding this condition the Court "imposes . . . limitations on qualifying for public funds" that it had found "unconstitutionally inhibit a candidate's . . . First Amendment rights"). (I thank Joel Gora for this observation.)
52. Among the useful introductions are Kathleen M. Sullivan, Unconstitutional Conditions. 102 HARV. L. REV. 1413 (1989) (arguing that the unconstitutional conditions doctrine is inconsistent and should be used more often as it provides vital protection to basic liberties); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293 (1984) (examining the differences between treats and offers and their effects on constitutionally protected rights).
53. Among the useful introductions are Kathleen M. Sullivan, Unconstitutional Conditions. 102 HARV. L. REV. 1413 (1989) (arguing that the unconstitutional conditions doctrine is inconsistent and should be used more often as it provides vital protection to basic liberties); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293 (1984) (examining the differences between treats and offers and their effects on constitutionally protected rights).
54. 408 U.S. 104 (1972).
55. Id. at 116. Determining constitutional results on the basis of this "crucial question" is what I call the "Groyned principle."
56. This should not be surprising. Both time, place, and manner regulations (at issue in Grayned) and unconstitutional issues deal with the fact that the government generally must respect people's constitutional interest in expression but also must be able to use its resources to advance public purposes.
57. The Court limits this principle to cases where the employee's speech refers to a matter of public concern. Interpreting this limitation can be controversial, with the Court splitting 5-4 in its characterization of the speech. See, e.g., Rankin v. McPherson, 483 U.S. 378 (1987) (off-hand remark favoring the assassination of the President was protected as speech on a matter of public concern); Connick v. Myers, 461 U.S. 138 (1983) (ruling a questionnaire on the management style of a D.A. not speech on a matter of public concern). If, as Robert Post argues, the Court's power to second-guess managerial judgements about the propriety of subordinates' expressions or the propriety of some categories of their expression would undermine the proper functioning of the government entity, this fact may be a reason to treat constitutional protection as incompatible with the governmental enterprise. See ROBERT C. POST, CONSTITUTIONAL DOMAINS 237, 260 (1995). This rationale's dangerous potential may explain why courts reject it in contexts, like those involving employee free speech about matters of public concern, where managerial authority is most likely to be abused and least likely to be justified. Note that whatever its merits, Post's argument does not imply rejection of the Groyned principle, but see id. at 242, but rather controversially extends it to the notion that judicial review of the speech, not just the speech itself, can be incompatible with the legitimate governmental purposes.
58. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969).
59. See Board of Comm'rs. v. Umbehr, 116 S. Ct. 2342 (1996); Rutan v. Republican Party, 497 U.S. 62 (1990); Elrod v. Burns, 427 U.S. 347 (1976).
60. A substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion . . . . A refusal to fund protected activity, without more, cannot be equated with the imposition of a "penalty" on that activity. Harris v. McRae, 448 U.S. 297, 317 n. 19 (1980).
61. "Although the Times may have no 'right' to receive certain legal advertising from the County Board of Supervisors, it would violate the Constitution for the Board to withhold public patronage, in the form of its advertising . . . in retaliation for that newspaper's exercise of first amendment rights" by publishing editorials and news stories critical of the Board and its members. North Miss. Communications v. Jones, 792 F.2d 1330, 1337 (5th Cir. 1986). Withdrawing advertising for reasons unrelated to the newspaper s exercise of its constitutional rights, for example, disapproval of the newspaper's labor policies, does not present this issue. See Alameda Newspapers v. City of Oakland, 95 F.3d 1406 (9th Cir. 1996).
62. The distribution (as opposed to the provision) of public funds could be unconstitutionally unfair. See, e.g., Buckley v. Valeo, 424 U.S. 1, 293-94 (1976) (Rehnquist, J., concurring in part and dissenting in part).
63. Buckley, 424 U.S. at 92-93.
64. Probably the best explanation for the financing combined with the condition is to linut the extent that candidates and public officials become primarily fund raisers rather than political deliberators. See Blasi, supra note 8, at 1300. The Court cited a Senate report noting this goal, see Buckley, 424 U.S. at 91, but never invoked it as an explanation of the condition nor, as Blasi points out, considered more generally whether this purpose justifies a limitation on campaign expenditures.
65. Buckley, 424 U.S. at 57.
66. Id. at 48-49. Rejection of restrictions on expenditures would seem to follow from the reasons the Court gave: the First Amendment "was designed 'to secure "the widest possible dissemination of information from diverse and antagonistic sources,"' and '"to assure unfettered interchange of ideas . . . ."'" Id. at 49 (citations omitted). At other places, the Court did not so overtly reject the legitimacy of the interest in equalization but rather said it was "clearly not sufficient to justify" the restriction of rights and said that the "First Amendment simply cannot tolerate [the] restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy." Id. at 54.
67. 345 U.S. 461 (1953). Unless otherwise noted, the facts described below are taken from this case.
68. See, e.g., Smith v. Allwright, 321 U.S. 649 (1944), overruling Grovey v. Townsend, 295 U.S. 45 (1935); Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536 (1927).
69. This may overstate the Court's resolve. The Court could not settle on a majority opinion and, although it eventually voted 8-1 that the Jaybirds' primary was unconstitutional, their initial vote went 5-4 the other way. See Mark Tushnet & Katya Lezin, What Really Happened in Brown v. Board of Education, 91 COLUM. L. REV. 1867, 1897-901 (1991).
70. See Smith v. Allwright, 321 U.S. 649 (1944).
71. See Terry, 345 U.S. at 475-76 (Frankfurter, J., separate opinion).
72. See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984) (holding constitutional an order issued pursuant to a state act requiring the organization to accept women as members). An association that the government wants to make criminal is usually labeled a conspiracy. See, e.g., BAKER, supra note 11, at 224.
73. See NAACP v. Button, 371 U.S. 415 (1963).
74. See Morse v. Republican Party, 116 S. Ct. 1186 (1996).
75. Arguably, these rights could also be seen as flowing from the guarantee of a republican form of government.
76. Compare American Party v. White, 415 U.S. 767 (1974) (upholding extensive regulation), with Williams v. Rhodes, 393 U.S. 23 (1968) (striking down regulation), and Anderson v. Celebrezze, 460 U.S. 780 (1983) (same). See also Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364 (1997). The dissent in Timmons does not disagree that political parties can be subject to regulation in their ballot expression; rather the dissent makes basically an unconstitutional condition argument. Once provided, a party's right to place a nominee on the ballot cannot be conditioned on its nominee being different from that of another party since this burden on the party's associational rights does not serve legitimate state purposes but instead operates to restrict the "robust competition in ideas and governmental policies that 'is at the core of our electoral process and of the First Amendment freedom.'" Timmons, 117 S. Ct. at 1381 (Stevens & Ginsburg, JJ., dissenting) (quoting Anderson v. Celebrezze, 460 U.S. 780, 802 (1983) (citation omitted)).
77. In an earlier white primary case, the Court held unconstitutional the denial of membership to blacks by a party that, under state law, sponsored candidates on the general election ballot. See Smith v. Allwright, 321 U.S. 649 (1944) (overruling the unanimous decision in Grovey v. Townsend, 295 U.S. 45 (1935)).
78. See Terry v. Adams, 345 U.S. 461, 483 & n.13 (1953) (Clark, J., concurring).
79. But see Morse v. Republican Party, 116 S. Ct. 1186, 1205-06 (1996) (rejecting this narrowing of Terry). Both the plurality and concurrence in Morse repeatedly cited Terry with approval even though Terry was unnecessary for the decision in Morse since in the latter, the state was involved in putting the party's choice on the general election ballot.
80. This claim might seem extraordinary. For example, would it mean that it is unconstitutional for a voter to base her vote on racist reasons? Maybe - although such a rule, like some constitutional norms that a conscientious legislator should follow, might not be properly enforced by the judiciary. See Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 STAN. L. REV. 585 (1975). Like unconstitutional purpose challenges that are rejected if the questioned law can be sensibly explained in terms of a constitutionally permissible purpose, the voter's constitutional obligation would be incapable of judicial enforcement because there are always alternative (benign) explanations of a vote for a candidate. However, like the irrelevance of legislators' actual motivation when a law is best understood as having an unconstitutional purpose, the same is true of voters' motivation if their action in a referendum is found to have an unconstitutional purpose. See Reitman v. Mulkey. 387 U.S. 369 (1967); see also Romer v. Evans, 116 S. Ct. 1620 (1996). Viewing the Constitution as applying to the voter's role is also very compatible with many people's experience of having an obligation to behave in a public-oriented rather than merely private-interested way when they vote, an experience that parallels many politicians' experience of needing to explain their positions in terms of public-sounding reasons rather than favoring interest groups' rent seeking. The conclusion also fits well with the demands of a republican theory of democracy. This analysis, however, may be too restrictive of voters' constitutionally permissible behavior in their choice of candidates. Even though under the Fourteenth Amendment racist laws cannot be adopted, legislators, even in their official capacity, presumably have a right to argue, to speak, in favor of such laws with the idea that the Constitution should oe amended to do away with the constraints of the Fourteenth Amendment. If legislators have the right to express themselves that way and to favor the repeal of constitutional protections, but do not have a constitutional right (under the present Constitution) to pass certain laws, presumably a voter has an analogous right to vote for these "racist" candidates but not a right, under existing Fourteenth Amendment law, to themselves violate the Fourteenth Amendment by adopting a racist law in a referendum or, as they did in Terry, by excluding blacks from voting or meaningful political participation.
81. I do not suggest that the Court consciously adopted this view-its opinions rather suggest an intellectual struggle without ever developing a coherent understanding of how to conceptualize the electoral process. Rather, this interpretation is offered as an explanation for why the result the Court felt compelled to reach is doctrinally right. Hard cases, when decided correctly, can make very good law.
82. These two categories largely correspond to distinctions involved in the "two track" analysis popularized by Laurence Tribe. His first track involves cases where "government action [is] aimed at communicative impact [and] the second [encompasses] government action aimed at noncommunicative impact but nonetheless having adverse effects on communicative opportunity." LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 790 (2d ed. 1988).
83. See Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (Kennedy, J., concurring in judgment). Ruling out regulation directed at the speech encompassed in their view of free speech is basically what theorists mean when they say they are absolutists. See, e.g., Hans Linde, 'Clear and Present Danger' Reexamined: Dissonance in the Brandenburg Concerto, 22 STAN. L. REV. 1163 (1970).
84. Of course, categorization can never be merely a matter of staring at "content" - context is always important to meaning and, hence, to the content category. The false shout of fire is different as a line in a play satirizing free speech doctrine than in a context where it is likely to cause panic. The same words about NATO can be overtly political speech or a line in a great historical romance novel, an unprotected obscene work, or a car advertisement. No words, ever, will fit a particular First Amendment category independent of context.
85. The First Amendment could mean that the government should not pass a law aimed at abridging speech, so that a valid law that in fact restricts expression must be aimed at a larger category of behavior, for instance noise, that concerns the government. Cf., United States v. O'Brien, 391 U.S. 367 (1968) (upholding a conviction for burning a draft card because of its independent noncommunicative impact). This requirement would prevent the government from focusing its regulatory efforts on speech, often a target of regulatory animus, but rather on a larger category, thereby giving speech some protection by associating it with other activities that the government may not want to regulate. See Linde, supra note 79.
86. See THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 345 (1970). But cf., BAKER, supra note 11, at 125-93 (critiquing the reasonableness test and balancing methodology and offering as an alternative theory of abridgement).
87. This Article is limited to issues involved in governmentally created institutions. Various "private" institutions, like business entities, often restrict speech. Although the legal order facilitates the creation of these entities, there is also a sense in which they are privately created. Given the governmental action requirement, the First Amendment is usually not thought to restrict this behavior. Of course, a robust system of freedom of expression may require legal protection of expression within these "private" institutions. In contrast, especially when the restrictions on speech would be permissible within governmentally created institutions, the government may be able to require private institutions to restrict certain types of speech-for example, an employee's racially or sexually harassing speech. Or maybe it can do so for certain types of private entities: for example, profit-oriented entities or even voluntary associations where the restriction on speech does not conflict with the associations' expressive purposes. All such questions about speech within private institutions are beyond the scope of this Article.
88. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972); see supra text accompanying note 51.
89. See supra note 80.
90. See Kenneth L. Karst, Boundaries and Reasons: Freedom of Expression and the Subordination of Groups, 1990 U. ILL. L. REV. 95.
91. See STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE (1990); BAKER, supra note 11; Karst, supra note 86.
92. As used here, "institutionally bound" corresponds closely to Jurgen Habermas's conception of the "system's world," while "non-institutionally bound contexts" refer to the "lifeworld," a usage I will invoke later. See infra note 162. My usage also closely resembles Robert Post's emphasis on the distinction between government action involving management and that involving governance, and his argument that full, traditional First Amendment doctrine applies only to the second. See, e.g., POST, supra note 53. His characterizations, however, are arguably misleading. It seems strange, for example, to follow Post in thinking of the New England town meeting as a matter of management and not of democratic governance. See id. at 271-74. Elections, like town meetings, can be reasonably viewed as involving an institutional framework but it should be troublesome to argue that a democracy should conceive of its elections as "domains dedicated to instrumental conduct," id. at 200, which for Post would be necessary to make the managerial perspective dominate so as to permit regulation of speech. Of course, in a democracy, elections have a dual aspect: people express values within them and use them to instrumentally choose leaders.
93. Pickering v. Board of Educ., 391 U.S. 563, 572-73 (1968).
94. See supra text accompanying note 54.
95. Doctrinal tests are less likely to obscure and mislead analysis, as many tests do, to the extent that they directly embody the normative premises that ought to control. See Baker, Turner Broadcasting, supra note 46, at 114-27.
96. U.S. CONST, art. I, § 6 (Speech and Debate Clause).
97. Although the Speech and Debate Clause is written in terms of protecting "Senators and Representatives," id., and was once thought to be personal in nature, it has been interpreted functionally to apply to Congressional aides to the extent they are involved in misting a member of Congress in core legislative functions, see Gravel v. United States, 408 U.S. 606 (1972), but no suggestion that it protects witnesses is plausible.
98. Sometimes witnesses refuse to speak on First rather than Fifth Amendment grounds Arguably, the key to when these claims are upheld is the Court's view that the compelled speech not only burdens First Amendment freedoms but also does not serve any legitimate legislative function-suggesting the thesis of this section, that limitations on First Amendment rights are permitted in institutional contexts but only to the extent necessary for the proper functioning of the institutions. Compare Barenblatt v. United States, 360 U.S. 109 (1959) (upholding contempt for refusing to answer) and Uphaus v. Wyman, 360 U.S. 72 (1959) (same) with DeGregory v. Attorney General, 383 U.S. 825 (1966) (rejecting compelled disclosure) and Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963) (same). The Court explained in DeGregory that "the First Amendment prevents use of the power to investigate enforced by the contempt power to probe at will and without relation to existing need." DeGregory, 384 U.S. at 829 (emphasis added) (citing Watkins v. United States, 354 U.S. 178, 197-200 (1957)).
99. See Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 578 (1980).
100. See Wooley v. Maynard, 430 U.S. 705 (1977); Abood v. Board of Educ., 431 U.S. 209 (1977). Cf. Glickman v. Wileman Bro. & Elliott, Inc., 117 S. Ct. 2130 (1997) (Souter, J., joined by Rehnquist, C.J., and Scalia & Thomas, JJ., dissenting) (applying these doctrines to compelled financing of advertising and noting that the Court had previously rejected "out of hand" the argument that "'the First Amendment interest in compelled speech is different [from] the interest in compelled silence,'" id. at 607, quoting Riley v. National Federation of Blind of N.C., Inc. 487 U.S. 781, 796 (1988)).
101. But cf. Branzburg v. Hayes, 408 U.S. 665, 713-15 (1972) (Douglas, J., dissenting) (arguing that freedom of speech is an absolute).
102. See U.S. CONST, amend. V and VI.
103. It should surely be an unconstitutional abuse of government power to silence an arrestee's out-of-court criticisms of government agents or her proclamations of innocence. In contrast, consider the court order forbidding newspaper publication of information gathered through discovery, which the newspaper claimed was a prior restraint, that was upheld by the Court in Seattle Times Co. v. Rhinehan, 467 U.S. 20 (1984). The Court relied on the newspaper's choice to use discovery, a means of gaining information that the government provided access to only for purposes of litigation.
104. 501 U.S. 1030 (1991).
105. W. at 1074. Note that there were different majorities on different rulings of the case. This was the majority view on this point.
106. See id. at 1055-56 (opinion of Kennedy, Marshall, Blackmun, & Stevens, JJ.)
107. A defendant's right to a "public trial," see Gannett Co. v. DePasquale, 443 U.S. 368 (1979) could be understood as a right not only to have the formal trial open but also not to be gagged in speaking to the public about the government's attempt to take her out of civil society.
108. See supra note 99.
109. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (holding an injunction limiting newspaper reports unconstitutional); Bridges v. California, 314 U.S. 252 (1941) (holding use of contempt power to punish out of court criticism or viewpoints improper absent demonstration of clear and present danger).
110. Burdick v. Takushi, 504 U.S. 428, 438 (1992) (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972); Storer v. Brown. 415 U.S. 724, 735 (1974)).
111. For example, the Court recognizes that not counting absentee ballots disfavors certain poorly financed or untimely expression but held that these interests in expression do not justify requiring that these votes be allowed. See Burdick, 504 U.S. at 438. The examples discussed in Part I, especially the discussion of broadcast regulation, see supra text accompanying notes 34-47, show how the law favors certain campaign speech while disfavoring other speech (e.g., a broadcast station's own speech that amounts to a statutory denned "use").
112. Laws against fusion-where more than one party nominates the same candidate and the votes for the candidate are separately counted by party but added to give the candidate a single electoral total-disfavor certain political associations and certain speech. See Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364 (1997) (upholding a law against fusion).
113. Cf. Rutan v. Republican Party, 497 U.S. 62 (1990) (holding that conditioning hiring and promotion decisions on public employees' political affiliation infringes upon their First Amendment rights).
114. Cf. Buckley v. Valeo, 424 U.S. 1, 57 (1976) (noting that "the First Amendment enies the government the power to determine that spending to promote one's views is wasteful, excessive, or unwise).
115. For example, the dissent in McIntyre v. Ohio Elections Commission treated the regulation of anonymous campaign speech "that exists, in a variety of forms, in every State exept California, and that has a pedigree dating back to the end of the 19th century," as Seating the practical wisdom of upholding these restrictions. 514 U.S. 334, 371 (1995) (Scalia, J., dissenting). This evidence about views implicit in the legal order was relevant. Interestingly, the dissent's conclusion that anonymous campaign literature can be prohibited conforms generally to my claim that speech in the electoral realm is subject to regulation on behalf of fair elections. Additional evidence of the power of this view of elections comes from the observation that 47 states apparently maintained laws restricting anonymous campaign speech until 1995 despite the 1960 decision providing First Amendment protection for anonymous leaflets. See Talley v. California, 362 U.S. 60 (1960). Nevertheless, neither this history nor this view of electoral speech justifies the dissent's position. A history of disempowerment does not gain authority by its long accepted nature. Regulation of electoral speech should be invalidated if it narrows rather than opens electoral processes. This factor properly persuaded the majority. For many people and groups on the margins of power, the people most in need of First Amendment support and the most likely to be excluded from the political process, the opportunity to participate anonymously can be crucial.
116. we supra Part I.
117. This institutional focus also clarifies considerations that show when regulation is Permissible, thereby supporting arguments that some restrictions may have been improperly upheld. See infra Part V.
118. 345 U.S. 461 (1953); see discussion supra Part I.C.
119. Cf. Daniel Hays Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 TEX. L. REV. 1741 (1993) (arguing that properly recognized associational rights are at stake less often than is commonly recognized and favoring greater power for statutory regulation of parties).
120. See supra text accompanying notes 34-47.
121. See, e.g., Baker, Pacifica, supra note 46 (claiming that even though most existing regulation of broadcasting is constitutional, the basis of government authority differs little between broadcasting and print). One apparent difference between the media is relevant here. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court struck down a law providing a right of reply. The Court gave alternative rationales: (i) the right of reply penalized and, hence, could deter the paper's political speech and (ii) it interfered with constitutionally protected editorial autonomy. More recently, in a decision inconsistent with the editorial autonomy rationale, the Court explained Tornillo solely in terms of the penalty/deterrence concern. See Turner Broadcasting Sys. Inc. v. FCC, 512 U.S. 622 (1994). Even this limited interpretation of Tornillo might be thought to pose problems for existing broadcast regulation since the statutory mandate of equal opportunities for candidates is analogous to 7ornillo's right of reply. Nevertheless, the constitutionally salient fear that the provision could deter broadcast coverage is significantly reduced by, first, the exemption of most reporting and news broadcasts from the equality mandate and, second, by the grant of a right of access, which prevents the broadcaster from responding to the equality mandate by foreclosing coverage.
122. See CBS v. FCC, 453 U.S. 367 (1981).
123. See In re Inquiry into Section 73.1910 of the Commission's Rules and Regulations Cooceming the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 145 (1985) (finding the fairness doctrine impeded rather than enhanced speech).
124. See Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989).
125. The fairness doctrine's requirement of coverage for important issues (the "coverage requirement) is analogous to candidates' right of access; its requirement that all sides presented (the "balance" requirement) is analogous to candidates' right of equal opportunities.
126. 494 U.S. 652 (1990).
127. See, e.g., Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. PA. L. REV. 1277, 1367-87 (1993).
128. Austin, 494 U.S. at 660.
129. 435 U.S. 765 (1978).
130. Austin, 494 U.S. at 659 (alteration added) (quoting FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 258 (1986)).
131. See HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION (1967).
132. See PUBLIC OPINION AND THE COMMUNICATION OF CONSENT (Theodore L. Glasser & Charles T. Salmon eds., 1995) (containing essays describing different conceptions of public opinion, most of which reject the innovation of treating public opinion as something that could be identified with polling results or surveys).
133. Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364, 1377 (1997) (Stevens, J., joined by Ginsburg & Souter, JJ., dissenting) (quoting Burdick v. Takushi, 504 U.S. 428, 445 (1992) and characterizing this as the view of the majority in Timmons).
134. See, e.g., KATHLEEN H. JAMIESON, DIRTY POLITICS: DECEPTION, DISTRACTION AND DEMOCRACY (1992).
135. See R. Craig Endicott, Leading National Advertisers, ADVERTISING AGE, Sept. 30, 1996, at S3 (reporting world wide marketing expenditures); Janet Hook, Campaign Reform Push Hits Familiar Obstacles, L.A. TIMES, Nov. 14, 1996, at A22 (citing Common Cause's estimate that $2 billion was spent by candidates, parties, and outside groups in the 1995-96 election cycle).
136. See R. Craig Endicott, Leading National Advertisers, ADVERTISING AGE, Sept. 30, 1996, at S3 (reporting world wide marketing expenditures); Janet Hook, Campaign Reform Push Hits Familiar Obstacles, L.A. TIMES, Nov. 14, 1996, at A22 (citing Common Cause's estimate that $2 billion was spent by candidates, parties, and outside groups in the 1995-96 election cycle).
137. For this comparison I do not include the considerable time (which is a major resource) that individuals, who are stimulated by the media or by advocacy organizations, then spend talking about these issues with family or friends. Nor did I include the time that Philip Morris's marketing targets then spend evaluating or discussing those marketing messages. Obviously, however, in any assessment of the state of politics in the country, the amount of time spent on these discussions is crucial.
138. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
139. Buckley v. Valeo, 424 U.S. 1, 57 (1976).
140. Id.
141. See ROBERT H. FRANK AND PHILIP J. COOK, THE WINNER-TAKE-ALL SOCIETY (1995).
142. JURGEN HABERMAS, BETWEEN FACTS AND NORMS (William Rehg, trans., MIT Press 1996) (1992) [hereinafter HABERMAS, BFN]. Autobiographically, although 1 long toyed with the approach to campaign expenditures taken in this Article, I became persuaded of it only after reading BFN.
143. As to some free speech issues, this burden can be met. See Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449 (1985). Nevertheless, given (1) the continued openness of broad unregulated politically oriented public sphere, (2) courts' availability for striking down campaign regulations that limit issues or speech content and regulations that constrict rather than open up the electoral process, (3) the obvious political reversibility of any reform, and (4) a vibrant democracy's arguable dependence on reform, the campaign context is an unlikely area to predict that a wrong judicial judgment that regulation is constitutionally permissible is more dangerous than a wrong judgment the other way. One might even argue just the opposite - that given the above observations, risk aversion suggests the Court ought to defer to legislative action.
144. "Under postmetaphysical conditions, the only legitimate law is one that emerges from the discursive opinion- and will-formation of equally enfranchised citizens . . . ." HABERMAS, BFN, supra note 137, at 408. Habermas's emphasis on "discursively formed" may appear to adopt a "republican" conception of democracy. Habermas, however, forcefully rejects that characterization. Although his "discourse theory of democracy" explicitly takes from both republican and liberal conceptions, it differs from and adds to both. Habermas emphasizes that democratic processes can include and, given the obvious pluralism of modern states, should include bargaining and compromise as well as moral, ethical, and pragmatic discourses. See, e.g., id. at 278-79, 296-302, 452.
145. W. at 301.
146. I only say "largely uninstitutionalized" because of the media, which are Janus-faced in being institutionalized within the economy (or sometimes within the state) as well as being crucial instruments of the public sphere.
147. HABERMAS, BFN, supra note 137, at 301.
148. See id. at 307.
149. See id. at 308.
150. See id. at 362. See also PUBLIC OPINION AND THE COMMUNICATION OF CONSENT, supra note 128.
151. These procedures also have a cleansing role in that, as empirical evidence confirms, legitimacy-producing reasons should pass through most easily. See HABERMAS, BFN, supra note 137, at 339, 555 n.28.
152. Id. at 356. Functional systems treat whatever is outside the system as environment to be instrumentally manipulated to serve systemic aims. Thus, the public sphere is susceptible to manipulative exercises of power by entities oriented by the system logic of the market as well as the state. Laws (such as the Michigan statute prohibiting corporations from making independent expenditures supporting or opposing candidates for state office, upheld in Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990)) that restrict the political activities of market-based entities attempt to impede this interference ty the market, and the First Amendment attempts to impede interference by the State.
153. See HABERMAS, BFN, supra note 137, at 379.
154. See id. at 483.
155. W. at 357.
156. The claim is that reforms will inevitably be pro-incumbent due to incumbents' ability to use their position to see that only pro-incumbent laws are adopted. I am skeptical of this account in part because most electoral finance reform laws are adopted by voters in initiatives or referenda after having been rejected by legislators. Moreover, when 95% of incumbents for Congress are re-elected, see, e.g., Financing of Campaign '96. L.A. TIMES, Nov. 13, 1996, at B8, it becomes reasonable to think that it is now more desirable to consider whether a reform will make the electoral process better rather than whether it will supply incumbents with unneeded protection. Despite the fact that those in office have gotten there through the existing system, those legislators who sponsor reform may have decided that as representatives they want to do something else than engage in continual fund raising.
157. See supra text accompanying note 133.
158. Cf. Habermas: The constitutionally regulated circulation of power is nullified if the administrative system becomes independent of communicatively generated power, if the social power of functional systems and large organizations (including the mass media) is converted into illegitimate power, or if the lifeworld resources for spontaneous public communication no longer suffice to guarantee an uncoerced articulation of social interests. HABERMAS, BFN, supra note 137, at 386.
159. Id. at 361-62.
160. See id. at 354-55 ("The core area of political system is formed by the familiar institutional complexes of administration . . ., judicial system, and democratic opinion-and will-formation (which includes parliamentary bodies, political elections, and party competition) . . . . [T]his center [is] distinguished from the periphery in virtue of formal decision-making powers and actual prerogatives . . . ." (emphasis added)). See also id. at 485. Although Habermas does not consider campaign regulation in this book and does not unambiguously include electoral speech (as opposed to the elections themselves) within the institutional complexes, this lack of attention could merely reflect the placement seeming obvious, particularly given ubiquitous campaign finance regulation in most modern democracies. See, e.g., DAVID W. ADAMANY & GEORGE E. AGREE, POLITICAL MONEY: A STRATEGY FOR CAMPAIGN FINANCING IN AMERICA 156-74 (1975); K. VON BEYME, POLITICAL PARTIES IN WESTERN DEMOCRACIES 196-211 (1985); ELLEN MICKIEWICZ & CHARLES FIRESTONE, TELEVISION AND ELECTIONS 17 (1992); Khayyam Zev Paltiel, Campaign Finance, in DEMOCRACY AT THE POLLS 138 (David Butler et al. eds., 1981).
161. See id. at 354-55 ("The core area of political system is formed by the familiar institutional complexes of administration . . ., judicial system, and democratic opinion-and will-formation (which includes parliamentary bodies, political elections, and party competition) . . . . [T]his center [is] distinguished from the periphery in virtue of formal decision-making powers and actual prerogatives . . . ." (emphasis added)). See also id. at 485. Although Habermas does not consider campaign regulation in this book and does not unambiguously include electoral speech (as opposed to the elections themselves) within the institutional complexes, this lack of attention could merely reflect the placement seeming obvious, particularly given ubiquitous campaign finance regulation in most modern democracies. See, e.g., DAVID W. ADAMANY & GEORGE E. AGREE, POLITICAL MONEY: A STRATEGY FOR CAMPAIGN FINANCING IN AMERICA 156-74 (1975); K. VON BEYME, POLITICAL PARTIES IN WESTERN DEMOCRACIES 196-211 (1985); ELLEN MICKIEWICZ & CHARLES FIRESTONE, TELEVISION AND ELECTIONS 17 (1992); Khayyam Zev Paltiel, Campaign Finance, in DEMOCRACY AT THE POLLS 138 (David Butler et al. eds., 1981).
162. See id. at 354-55 ("The core area of political system is formed by the familiar institutional complexes of administration . . ., judicial system, and democratic opinion-and will-formation (which includes parliamentary bodies, political elections, and party competition) . . . . [T]his center [is] distinguished from the periphery in virtue of formal decision-making powers and actual prerogatives . . . ." (emphasis added)). See also id. at 485. Although Habermas does not consider campaign regulation in this book and does not unambiguously include electoral speech (as opposed to the elections themselves) within the institutional complexes, this lack of attention could merely reflect the placement seeming obvious, particularly given ubiquitous campaign finance regulation in most modern democracies. See, e.g., DAVID W. ADAMANY & GEORGE E. AGREE, POLITICAL MONEY: A STRATEGY FOR CAMPAIGN FINANCING IN AMERICA 156-74 (1975); K. VON BEYME, POLITICAL PARTIES IN WESTERN DEMOCRACIES 196-211 (1985); ELLEN MICKIEWICZ & CHARLES FIRESTONE, TELEVISION AND ELECTIONS 17 (1992); Khayyam Zev Paltiel, Campaign Finance, in DEMOCRACY AT THE POLLS 138 (David Butler et al. eds., 1981).
163. See id. at 354-55 ("The core area of political system is formed by the familiar institutional complexes of administration . . ., judicial system, and democratic opinion-and will-formation (which includes parliamentary bodies, political elections, and party competition) . . . . [T]his center [is] distinguished from the periphery in virtue of formal decision-making powers and actual prerogatives . . . ." (emphasis added)). See also id. at 485. Although Habermas does not consider campaign regulation in this book and does not unambiguously include electoral speech (as opposed to the elections themselves) within the institutional complexes, this lack of attention could merely reflect the placement seeming obvious, particularly given ubiquitous campaign finance regulation in most modern democracies. See, e.g., DAVID W. ADAMANY & GEORGE E. AGREE, POLITICAL MONEY: A STRATEGY FOR CAMPAIGN FINANCING IN AMERICA 156-74 (1975); K. VON BEYME, POLITICAL PARTIES IN WESTERN DEMOCRACIES 196-211 (1985); ELLEN MICKIEWICZ & CHARLES FIRESTONE, TELEVISION AND ELECTIONS 17 (1992); Khayyam Zev Paltiel, Campaign Finance, in DEMOCRACY AT THE POLLS 138 (David Butler et al. eds., 1981).
164. This tendency toward being "efficacious" rather than "discursive" certainly does not imply that either voluntarily or non-censorious regulatory attempts to make electoral speech more substantive are not worthy goals. For example, a useful reform could be to mandate that broadcasters provide free broadcast time for candidate debates. (To provide candidates free TV time and prohibit paid campaign advertising on TV/cable could reduce the demand for campaign funds and thereby reduce the pressure for ignoring or getting around finance regulations. Such a result would contribute greatly to making finance regulation work.) This goal also fully justifies some recent journalistic initiatives, including the substantive journalistic evaluation of campaign ads. Still, the continual calls for journalist coverage to be more issue and less horse race oriented may be odder than often recognized. Because of party allegiance, in most general elections (as opposed to primaries), many people, surely most people who are especially interested in public affairs, already know for whom they will vote long before they hear the candidates' campaign speeches and their "vigorous but vague" substantive pronouncements. For these people, the real "news" is who is winning, not the issues. Issues were properly the subject of discussion and politic mobilization at an earlier, non-electoral stage. Interestingly, these already committed voters are often the leaders of the chorus calling for more issue-oriented coverage. Despite their lack of need or personal desire for more information about the candidates' positions, this call understandably relates to their desire that the public be more substantively interested in, and informed about, public issues. Of course, possibly the democratic role of news is to serve the comparatively smaller group of swing voters rather than this larger already committed part of the voting public. This role, however, probably conflicts with the market logic directing the media to serve the broader audience. See Baker, supra note 44.
165. Habermas consistently emphasizes such associations as crucial elements of the public sphere. Thus, he argues that communicatively generated power of popular sovereignty "springs from the interactions among legally institutionalized will-formation and culturally mobilized publics . . . [that] find a basis in the associations of a civil society quite distinct from both state and economy alike." HABERMAS, BFN, supra note 137, at 301. See also, e.g., id. at 307, 355-56, 358, 366, 372, 485.
166. Id. at 364.
167. W. at 410.
168. W. at 386.
169. Campaign finance reform could be, 1s its critics fear, used as a means of furthering distortive control by the administrative state. Of course, this abuse is only one of many ways that the administrative state could advance such a
170. But cf. POST, supra note 53. Post argues that "managerial structures" do not assume, but "structures of self-governance" do assume, that citizens are autonomous. Id. at 284. See also id. at 200. Presumably, elections and electoral speech would be, for Post, within the structures of self-governance, although this may be unclear since his categorizations apparently place New England town meetings, legislative sessions, and committee hearings within the realm of management. See id. at 256, 271, 274-75. Thus, in his careful and powerful critique of Owen Fiss's and Cass Sunstein's arguments for regulation of public speech, Post identifies a "sharp anomaly" in "regulating democratic elections on the premise that voters are not autonomous and free." Id. at 286. Post views managerial control of even discrete realms as deeply inconsistent with the necessary ascription of autonomy. Id. at 287-89. In contrast to the constant opposition between management and self-government that Post describes, an alternative treats the premises of "autonomy" and "cause/effect" logic as having different roles. Designers of institutional arrangements should always instrumentally and purposefully take into account cause and effect considerations while furthering various value-based concerns, including democratic process values. However, these structures, created by ascriptively autonomous people, should themselves respect people's "ascribed" autonomy. This is roughly the difference, for example, of the micro and macro in Rawls' theory of justice. Justice requires that the basic institutions be designed to achieve certain results but also requires people's behavior, when acting within these institutions, be respected and rewarded as their own. One failure of Nozick's critique of Rawls was Nozick's repeated failure to see this point. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974). Institutional structuring of the electoral processes is inherent to the notion of having elections. The structure ought to further effectively and instrumentally the democratic premises of being open, fair, and egalitarian at the same time as the design is respectful of people's choices within the structure. A structure that regulates speech opportunities within this process is not necessarily inconsistent with the ascription of autonomy to voters. Post is persuasive in arguing for a broad realm of "ongoing and free processes of communication." POST, supra note 53, at 287. Habermas also describes the democratic necessity of such a realm, which in his analysis, would exist in the "lifeworld," primarily in the part of the lifeworld constituted by procedurally unregulated public spheres. However, when Post argues that it is paradoxical to establish "structures of managerial control that violate formal conditions of freedom in order to recuperate democratic values," he seems incapable of theorizing the institutionalized portions of democracy. POST, supra note 53, at 288. In contrast, Habermas describes the democratic necessity, not the paradox, in the existence of rationally institutionalized governing processes as well as procedurally unregulated public spheres. See, e.g., HABERMAS, BFN. supra note 137, at 307-08. 357-58, 485-88. Habermas argues the democratic hope lies in the quality of interaction between these two realms.
171. See. e.g., sources cited supra note 155.
172. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) (holding that when a state seeks to restrict directly the offering of opinions by a candidate the First Amendment requires that the restriction must be supported by a compelling state interest); Mills v. Alabama, 384 U.S. 214 (1966) (holding that an Alabama law criminalizing editorials urging readers to vote in a specific way on election day violates the First Amendment). Democracy requires that there be no limit on what people can consider politically relevant, and, hence, what they can consider in elections.
173. There is curious content packed into this notion of "reasonable." Presumably, if the reason for anonymity is the speaker's fear of safety or other forms of retaliation, anonymity is protected, but if the fear is that the electorate will not trust a candidate who receives big bucks from a corporation or a single donor, the deterrent effect of exposure may be considered desirable and is considered permissible. See Buckley v. Valeo, 424 U.S. 1, 67 (1976). Possibly, part of the difference may be the importance of the First Amendment opening up space for marginal or dissident groups. See SHIFFRIN, supra note 87.
174. See, e.g., Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995): Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982).
175. In Buckley and conforming cases, the Court has protected independent expenditures from regulation. See, e.g., Buckley, 424 U.S. at 39-51; FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985). See also Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. 2309 (1996) (holding that the Republican Party's campaign committee's expenditures attacking the Democrats' likely candidate, before the Republicans had chosen their candidate, were protected independent expenditures of the Party).
176. Justice White thought that constitutionally acceptable rationales for regulating contributions applied equally to independent expenditures. See Buckley, 424 U.S. at 261 (White, J., concurring in part and dissenting in part). Chief Justice Burger and Justice Blackmun and, more recently. Justice Thomas have concluded that the Court's distinction between expenditures and contributions is unpersuasive and, therefore, regulations of contributions should be invalidated. See id. at 241 (Burger, C.J., concurring in part and dissenting in part); id. at 290 (Blackmun, J., concurring in part and dissenting in part); Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. at 2325-26 (Thomas, J., concurring in the judgment and dissenting in part). See also FEC v. Nat'l Conservative Political Action Comm., 470 U.S. at 518-21 (Marshall, J., dissenting).
177. In Part II, I noted parallels between time, place, and manner doctrine, unconstitutional condition analysis, and the notion of institutionalized realms, but I observed that the latter category, even if implicit in court doctrine, was seldom discussed as such. My claim here is that the first view was limited by being able only to conceptualize constitutional condition analyses and did not have access to the notion of the propriety of regulation within institutionalized realms.
178. Under Buckley, since contributions could but expenditures could not be regulated, the question of categorization arises. If the money spent was counted as "coordinated" with the campaign, it was a regulatable contribution; if not, it was an independent expenditure. Under the analysis presented here, line drawing is still necessary, but the line is between independent campaign expenditures and more general, independent expenditures. Moreover, as noted below, lines must be drawn between people's and organizations' normal activities within the public sphere and their special campaign-oriented activities.
179. The Court has already upheld the government's authority to set this date for at least some purposes. See CBS v. FCC, 453 U.S. 367 (1981).
180. Whether person-to-person paid communications are subject to regulation presents a different issue. See infra text accompanying notes 185-187.
181. The Court interpreted the Labor Management Relations Act of 1947, § 313, 61 Stat. 159, (current version at 2 U.S.C. § 441b (1994); formerly codified at 18 U.S.C. § 610 (1947) and 2 U.S.C. § 251 (1958)), which restricts union expenditures on campaigns, to apply to sponsorship of a commercial television broadcast related to certain candidates but not to publication of campaign endorsements by the president of the C.I.O. when published in the union's The CIO News, which was distributed to union members and purchasers. Compare United States v. UAW-CIO, 352 U.S. 567, 585, 588 (1957) (holding that union sponsorship of commercial television broadcast violated the Act) with United States v. CIO, 335 U.S. 106 (1948) (holding that publication of endorsements in the union's News did not violate essentially the same statute).
182. Buckley noted the necessity of a similar specific limit. See Buckley v. Valeo, 424 U.S. 1, 42-44 (1976). Otherwise, all politically salient speech during an electoral period would be covered.
183. A major pragmatic source of resistance to campaign reform comes from the belief that the restricted money will merely reappear in unregulated activities. This change, however, could be viewed as a major gain rather than a cause of concern if the money reappeared in a manner that made for a richer, more substantive form of discursive politics.
184. See Mills v. Alabama, 384 U.S. 214 (1966) (holding that Alabama's Corrupt Practices Act. which provided criminal penalties for publication on election day of editorials urging citizens to vote in a certain way, violated free speech and press guarantees of the First Amendment). A ban on endorsements by participants in a campaign, such as parties or candidates, would also be unconstitutional for limiting the openness of the campaign and for treating certain information as not properly relevant. See Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989) (striking down certain restrictions on endorsements).
185. See Brown v. Hartlage, 456 U.S. 45 (1982) (explaining that state attempts to restrict a candidate's ideas must be supported by a legitimate and compelling state interest).
186. See Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982) (holding disclosure provisions could not be applied to the Socialist Workers Party because these provisions violated the First Amendment protection of minor parties from state attempts to compel disclosure).
187. See Geoffrey Stone & William Marshall, Brown v. Socialist Workers: Inequality as a Command of the First Amendment, 1983 SUP. CT. REV. 583, 592.
188. See Burson v. Freeman, 504 U.S. 191 (1992).
189. See POST, supra note 53, at 283 ("Citizenship presupposes the attribution of freedom; in fact the ascription of autonomy may be said to be the transcendental precondition for the possibility of democratic self-determination").
190. My first experience with this bar on "campaigning" was when I was told I could not vote unless I first removed a button proclaiming my position on an anti-gay ballot measure. I wondered if the election officials would also demand that prospective voters disrobe, as apparently required by their interpretation of the law, if the voters' clothing bore campaign messages.
191. Obvious ways include: (1) reducing the need for raising money by providing key campaign resources, like television time, for free; (2) reducing the efficacy of money by making the most valuable campaign resources, like television time, unavailable on the market; (3) providing public funds to those who accept voluntary expenditure limits and by making over-the-limit expenditures of those who do not accept the limits a benefit for those accepting the limits, by either increasing their public funding or allowing them to raise extra funds until their combined privately raised and publicly given funds equal the funds used by the non-complying candidate. A well designed reform is likely to use a combination of all three of these methods.
192. In a comparative study of the United States, Denmark, Finland, France, Germany, Italy, Netherlands, United Kingdom, and Israel, only Finland followed the American practice of allowing "free purchase of advertising" for political ads. Except for Italy, which in 1993 adopted legislation prohibiting political advertisements during the four weeks before the election, all the rest allocated free broadcast time according to varying criteria. Most mandated the length of the partisian broadcasts and several imposed content restrictions. See POLITICAL ADVERTISING IN WESTERN DEMOCRACIES: PARTIES AND CANDIDATES ON TELEVISION 14-17 (Lynda Lee Kaid & Christina Holtz-Bacha eds., 1995).
193. Looking forward to the possibility of Perot-like campaigns, there may be room for a constitutional argument that keeping the process open requires allowing minor party or non-party groups to advertise. Cf. Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 88 (1982) (following Buckley in holding that the "First Amendment prohibits the government from compelling disclosures by a minor political party that can show a 'reasonable probability' that the compelled disclosures will subject those identified to 'threats, harassment, or reprisals.'" (quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976))). However, the law might give broadcasters the discretion to accept or reject the advertisements and design provisions allowing major party candidates to advertise, but only to the extent that a minor party candidate advertises.
194. See Meyer v. Grant, 486 U.S. 414, 425 (1988) (holding that a prohibition on paid petition circulators violated the First Amendment). In addition, the Court should and did cite Schaumburg v. Citizens for a Better Env't, 444 U.S. 620 (1980), which invalidated undue restrictions on paid solicitation of charitable contributions. See Meyer, 486 U.S. at 442 n.5. The result in Schaumburg, however, should be distinguished as involving the expression of charities, which is more purely within the public sphere than in an institutionalized realm.
195. The Court treated a requirement of a sufficiently high number of signatures as an adequate means of serving this state interest in grass roots support. See Meyer, 486 U.S. at 425-26. Realistically, however, volunteers involved in soliciting signatures show both a different type and a different level of support than mere numbers of signatures. The state should be able to conclude that ballot measures are only appropriate when that support has been shown.
196. Critics of expenditure limits might be tempted to argue that the limits become law only when legislators, always conscious of their need for re-election, see the limits as "incumbent re-election insurance schemes." This argument loses force when it is observed that most campaign finance regulatory schemes have been adopted by voters in initiatives after the legislators refused to adopt such reforms. Voters also seem to impose generally lower contribution or expenditure limits than are favored by legislators.
197. Both by increasing elections' fairness and responsiveness to the unregulated public sphere and restricting the use of money in elections, campaign regulation may even change incentives in a manner that enhances the vitality of this unregulated realm.