Rosenberger involved the government deciding how to spend its
money; similar cases have discussed how the government may provide
access to its property. In that context, the Court acknowledged that
the government as proprietor must surely have extra power over what is
its own property than it has as sovereign over what other people
possess.
Citizens' money, the media in which they advertise, and their
speech are surely not the government's property; the government has no
extra power as controller of its own land or funds to regulate that
speech. It's acting as sovereign -- whether regulating speech about
candidates, about ballot measures, or about public issues -- and is
properly subject to the full range constraints the First Amendment
imposes on the government's sovereign power. The last thing we want, I
think, is a First Amendment doctrine that generally allows the
government to seize ownership rights over zones of debate (as opposed to
asserting its ownership rights over its money or its land).
On the other hand, I do think that it might make some sense for
the government to have extra power over the speech of *candidates* (not
independent citizens, but candidates) because the candidate is seeking a
government job. Here, the government -- and the public -- would be
acting as employer, setting up conditions for whom it will "hire" to
serve it. One thing it may insist on, the theory would go, is that its
employees and future employees not say things that would interfere with
a fair and effective selection process; the government would have no
extra power over what others (media, bloggers, other citizens) say in
favor of or against the candidate, but it would have power over what the
candidate, the would-be employee, says. (Note that Justice Kennedy
hinted at this possibility in Republican Party v. White, the judicial
candidate speech case, though I'm not sure how far he would take it.)
An analogy might be faculty hiring in public universities.
Citizens are surely free to lobby the university faculty to hire some
candidate; they may send letters, they may buy ads, they may picket on
the public street right outside the university property. (They hardly
ever do that, but that's just because they don't really care; they do
have a First Amendment to do it.) But I would think that a university
may well tell candidates that it wants to select them solely based on
the normal appointments process, and would look very much askance at a
candidate who spends money to arrange mailings to the "voters" (the
faculty) and other sorts of self-promotion. Even a categorical rule
disqualifying any candidate who spent money (beyond, say, the money
needed to make copies of his resume, fly out to visit the school, if the
school doesn't pay for that, and the like) on a "campaign" to get
appointed would, I think, be constitutional, precisely because the
government is acting as employer.
There are surely perils in such an approach: For instance, it
would leave room for the government to regulate the speech of
legislatures in various ways, contrary to Bond v. Floyd. As a matter of
broader theory, we may well say that elected officials are so vastly
different from normal employees, and their freedom of speech is so
important, that we can't extend any aspect of the government-as-employer
doctrine there. But at least the approach is somewhat more consistent
with the Court's distinctions between government acting as sovereign and
government acting in other capacities.
Eugene
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Thom Cmar
Sent: Friday, September 30, 2005 8:23 AM
To: Heather Gerken; election-law@majordomo.lls.edu
Subject: Re: The Vermont case and the future of campaign finance
I agree that paeans to the little guy aren't likely to
carry a lot of truck with the more conservative
members of the Court, and that a new paradigm is
needed.
How's this for a new approach? Why not, for First
Amendment purposes, treat the campaign that's being
regulated as a "virtual public forum" -- as the Court
has done in other contexts, e.g., Rosenberger v.
Rector? Viewed under such a paradigm, the
justification for spending limits is that, in an era
where mass communication is crucial to electoral
succees, they prevent the candidate or candidates with
the best connections to wealthy donors from saturating
the media marketplace with their advertising,
effectively denying other potential speakers access to
the public debate (i.e., their turn at the virtual
podium). Indeed, as the Vermont legislative record
shows, in the absence of such regulation, campaigns
devolve into Hobbesian warfare. Why shouldn't
legislation that's narrowly tailored to end that sort
of campaign finance "arms race" be constitutionally
legitimate? And, when deciding what is or is not
narrowly tailored, shouldn't a legislature get some
deference from the Court, a la McConnell, as the
institution best situated to decide these kinds of
questions?
Thom Cmar
thom@post.harvard.edu
--- Heather Gerken <gerken@law.harvard.edu> wrote:
---------------------------------
I wonder whether members of the list share Rick
Hasen's view on theVermont case ("John Bonifaz is
Wildy Over-optimistic (at least inPublic) About His
Chances of Getting the Supreme Court to Accept
theConstitutionality of Spending Limits"). Campaign finance
isnot my specialty, but whenever I teach these cases, I
always leave withthe impression that a significant shift in
the Court's approach isapproaching. The Justices obviously
understand how unworkableBuckley has become, and the number
of individual Justices callingfor a new approach is
noteworthy. Indeed, I read McConnellnot as an example of the
Court's doctrinal sloppiness, but as a signthat the Court is
just going through the motions, waiting for theshift.
For these reasons, my guess is that precise doctrinal
parsing isn't goingto offer a very useful guide for
predicting where the Court goes fromhere. What is
really going to matter is whether a new coalition
canbe forged among the Justice to outline a new
approach. So it's notjust the votes of Chief Justice
Roberts and O'Connor's replacement thatwill matter,
but how their presence on the Court changes the
current,well-worn dynamic among the Justices. And the
atmospherics arelikely to matter as well -- I think that Rick
Pildes' observation aboutthe Court's distaste for instability
and scandal provides a pretty goodpredictor for the Justice's
intuitions on these matters. If I weretrying to move Justice
Kennedy (the focus of Rick's challenge to JohnBonifaz), I'd
do everything I could to remind him about how badly thesystem
is running rather than offering him the paeans about
inequalityand the little guy that one sees so often in
campaign financediscourse. That is, given Justice Kennedy's
strong views on theFirst Amendment, I'd try to shift the
debate from the well-worn libertyv. equality debate to a
bird's eye view that focuses on administrative,regulatory concerns.
That's not to say that Rick's predictions are
inaccurate -- to thecontrary, I'm making no prediction
as to where such a coalition wouldlead the Court, and
Rick knows a good deal more about the intricacies
ofcampaign finance law than I do. And even if I'm
right aboutimpending change, it's not clear that it
will happen in this case, as thetwo new Justices may
not want to/be able to exercise such a leadershiprole
in their first year on the Court. I merely want to
suggestthat the listserve's discussion on the Vermont
case thus far (centeringon what is or is not
consistent with Buckley) may be too narrowlyfocused.
If I were the NVRI, I'd certainly want to talk about
pastprecedent. But I'd also organize my amicus strategy
around puttingin front of the Court a number of alternative
paradigms for thinkingabout campaign finance -- not just the
"equality" paradigm or abalancing approach, with which the
Court is all too familiar by now, buta range of structural
approaches or procedural strategies that might helpguide the
Court's thinking on thesematters.
Best,
Heather
Heather Gerken
Visiting Professor
Yale Law School
Box 208215
New Haven CT 06520-8215
(203) 432-8022
heather.gerken@yale.edu
Sept. 1, 2005 - June 1, 2006
Professor
Harvard Law School
1525 Massachusetts Avenue
Cambridge MA 02138
617-496-8262
gerken@law.harvard.edu
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