The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

by Brian K. Pinaire


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ISBN-13: 9780804757249
Publisher: Stanford University Press
Publication date: 03/20/2008
Pages: 368
Product dimensions: 6.00(w) x 9.00(h) x 1.00(d)

About the Author

Brian K. Pinaire is Assistant Professor of Political Science at Lehigh University.

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The Constitution of Electoral Speech Law

The Supreme Court and Freedom of Expression in Campaigns and Elections

By Brian K. Pinaire


Copyright © 2008 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8047-5724-9


Constituent Concepts

OUR ATTENTION in this chapter is directed toward those constituent concepts that figure most prominently in the constitution of electoral speech law: "electoral superintendence" and the "marketplace of ideas." As we will see, "electoral superintendence" represents, for my purposes, the general supervisory capacity the U.S. Supreme Court has assumed in electoral process cases since about World War II, while the concept of a "marketplace of ideas" has developed (over approximately the same period of time) from Justice Oliver Wendell Holmes's famous contemplation of the potential for "free trade in ideas" to serve as the vehicle for evaluating competing claims and ultimately realizing the social good in the realm of expression. We begin first with an exploration of the essence and evolution of "superintendence," as this notion encapsulates the Court's involvement in the organization of American politics.


While the justices may, at times, appear "confused, or indifferent, about what politics is for," as one commentator has suggested, at least since the judicial construction of Baker v. Carr and the spawning of the "Reapportionment Revolution" in the early 1960s, the U.S. Supreme Court has assumed the role of electoral superintendent, a development that has consistently and increasingly involved the justices in the regulation of politics. Indeed, as election law scholars have stressed, judicial oversight has increased to a degree "unimaginable when the Supreme Court first entered the political thicket" in Baker. Before proceeding further then, a brief recap of the road leading here is appropriate. While the first three of the White Primary Cases (Nixon v. Herndon in 1927, Nixon v. Condon in 1932, and Grovey v. Townsend in 1935) are probably the most well known of the Court's early twentieth-century interventions in the political process, what is in effect the theory — or a theory — for why the justices would superintend in such a fashion was not articulated as such until 1938, in United States v. Carolene Products Co.

Sweet Carolene

Announcing a routine-enough assertion of the deference to be paid to legislation having a rational relationship to a professed concern for the health and well-being of the public and its markets, Carolene is, of course, most known for the significance of its fourth footnote: a signal, if you will, of the heightened scrutiny to be paid to particular, noncommercial, classes of legislation. As Chief Justice Harlan Fiske Stone suggested in this forecast, the operative scope for the presumption of constitutionality may be "narrower" when "legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth."

Following the Carolene invitation over the course of the next generation, the Court, in United States v. Classic,Smith v. Allwright, and Terry v. Adams, appeared to demonstrate its intention to "unclog" the "channels of political change," as John Hart Ely put it — acting as a sort of "referee" for the political process. Election law scholars such as Samuel Issacharoff and Richard Pildes, informed by Ely's work and looking to the White Primary Cases for evidence of prototypical problems, have applauded this mode for the Court and theorized that the justices should adopt a "structural" or "functional" approach to guide their review of political process cases, intervening "only when the 'market,'" (in their case, the "political market") was "systematically malfunctioning" — that is, essentially when the process is undeserving of trust because "the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out," as Ely put it.

What this emphasis on "structure" or "function" would do for practical purposes, Issacharoff and Pildes contend, would be to present democratic politics as akin to a "robustly competitive market," whose "vitality depends on both clear rules of engagement and on the ritual cleansing born of competition." Only within a system of competitive party politics, in other words, can the "policy outcomes of the political process be responsive to the interests and views of citizens," and thus they advocate a "theory of legal regulation of politics premised on a skeptical view of political lockups, akin to the 'hard look' given to managerial self-protection in the corporate setting."

Critics of this approach, such as Richard Hasen, find it to be a "shallow theory" that "says nothing about how the courts should intervene in the face of political market failure." For Hasen, the Court should focus instead on substantive equality principles, working to distinguish between "core political equality rights," such as not discriminating against individuals on the basis of race, and "contested political equality rights," such as the right espoused by some that minorities should have the right to generally proportional representation in legislatures, for example. Hasen admits that "most core rights are socially constructed," meaning that they are the product of social consensus, but his recommendation is that when the Court intervenes regarding contested political equality rights, it should craft a "murky (or vague) political rule," whereas intervention in cases implicating core political equality rights calls for the use of "bright-line rules." But he contends that this more articulate focus clarifies "for both members of the Court and the public at large what normative value judgments the Court is making," meaning, too, that "the Court is more likely to consider whether the case's holding might have unintended consequences on other political issues," an approach he finds to be "more honest than a focus on process, because the Court will not always provide process protection absent a threat to a substantive equality principle recognized by a Court majority."

"Platonic Guardianship"

But critics of intervention — for any reason and however cabined by theoretical partitions — contend that such authority vested in the Court necessarily envisions the justices as "Platonic Guardians" summoned for their wisdom in the arrangements of political life and operations. Beyond this sort of normative resistance, however — rooted as it typically is in the perception that the Court's involvement is somehow un- or antidemocratic — a separate argument for resisting the lure of Carolene would point to the various and prominent examples of electoral reform that successfully emerged without courts (i.e., through the political process), such as the institution of the Australian "secret ballot" system; the direct primary; the direct election of senators; various campaign finance regulations; term limits; and the extension of the franchise to blacks, women, those over age eighteen, and recently, in some states, to ex-felons who have completed their sentences — a class which has actually been stymied in its efforts to regain voting rights through the courts, and which has, instead, relied on unequivocal public support for the eventual return of the franchise in the course of political mobilization campaigns, grassroots lobbying of state legislatures, and appeals to state executives.

But the concept of electoral superintendence invites us as well to consider the theoretical implications and consequences of the phenomenon that Richard Pildes has recently referred to as the "constitutionalization of democratic politics" — or the tendency over the last generation for "issues concerning the design of democratic institutions and the central processes of democracy" to "increasingly become questions of constitutional law throughout the world." Regarding this "constitutionalization," Pildes explains that "the contours of fair political representation and political equality," the constitution of "group identities in the design of democratic institutions," and the campaign voices and political participation of corporations, interest groups, unions, and parties, "are now substantially constrained by constitutional law." Indeed, even in the rejection of particular claims, he continues, "constitutional law has been credibly invoked and has generated divided Court decisions over other central aspects of elections, governance, and politics," such as the "role of third parties in American politics, the place of write-in candidacies, the structure of campaign debates, and the role of partisanship in the design of election districts."

Thus, with the "stakes for the practice of democracy, and the role of constitutional law" as "dramatic" as they are, and with "hardly any issue concerning the institutions of governance or the conduct of elections ... outside the reach of contemporary constitutional law," Pildes contends that in the coming years, constitutional law will be "shaped, in part, by the collision of these two developments: a Supreme Court increasingly constitutionalizing the structures of democracy, and political circumstances that spawn recurring challenges to existing democratic structures." In this context then, the Supreme Court "remains well entrenched in the political thicket and is likely to remain there."

As we will see in the next section, a concept of equal constituent significance has evolved within the Court's free speech jurisprudence. While more of an interpretive device than a historical trend or tendency, the "marketplace of ideas" warrants attention in understanding the constitution of this domain because it presents the framework, or design, which effectively absorbs and animates the characteristics drawn from the "superintendent" construct. Next we will review the marketplace concept in terms of its development, doctrinal establishment, discontents, and ultimate dominion in free speech law.


An enormous literature contemplating its historical origins, philosophical justifications, political values, contemporary applications, and doctrinal evolution confronts anyone writing on the topic of freedom of speech in the United States. While I will draw on free speech scholarship generally in my scrutiny of the domain of electoral speech law, space constraints preclude me from delving deep into those academic debates that antedate or exist only in the general atmosphere of my particular interest in this book. Obviously, the broader historical background and development of freedom of speech in the United States must be scrutinized, and recent studies have done this quite well, but the terms of this project confine my temporal focus to the latter half of the twentieth century for three reasons.

First, most scholarly discussion tends to focus on freedom of speech issues since about the turn of the twentieth century and more specifically the World War I era and into the 1920s, primarily because it was at this point that the U.S. Supreme Court first began to seriously review restrictions on freedom of speech as violations of the U.S. Constitution, though of course it was not until 1931 that the Court actually upheld a free speech claim. Second, it was not until just after World War II that the Court first reviewed an electoral speech case as defined in the Introduction. Third, as we will see below, the "marketplace of ideas" metaphor was written into American law in Abrams v. United States, though it would take at least another generation before it came to be regularly invoked by the Supreme Court in free speech cases.


In what has been called the most memorable dissenting opinion of the twentieth century, Justice Oliver Wendell Holmes, Jr., reasoned that the "ultimate good" could be "better reached by free trade in ideas" and that the "best test for truth is the power of the thought to get itself accepted in the competition of the market." As initially envisioned, the "marketplace" metaphor was both a mechanism and a method for serving the social good by protecting the liberty of expression for individuals and by situating them within a dynamic arrangement relying on the power of collective choice (competition) to sort good from bad, right from wrong, true from false, and so on, suggesting that it was the aggregation of individual preferences — in the absence of state intervention — that itself functioned to "regulate" the commodities and exchanges within this arena. These being the theoretical assumptions underlying the metaphor, it is important now to consider the context and philosophical ancestry from which Holmes's construct emerged.

While the notion that citizens are fulfilled in the polis — and must employ the power of speech (or "voice") as they share in the governance of the community — has been around at least since the time of Aristotle, the modern understanding of political speech embraced by our legal system finds its most immediate roots in the British tradition. While a full exploration of John Milton's intellectual contribution to this concept is not possible in this space, for purposes of a general overview it is important to stress here that — while his Areopagitica obviously predated modern economic ("marketplace") theory — this work did provide the "roots" of marketplace thinking, at least in the sense that there was, as he imagined it, a clash of ideas where Truth "grappled" with Falsehood. And so, while his portrayal was not the "free trade" we find in American jurisprudence, it does rely on the same underlying principle — that of a contest of forces — as it argues against Parliament's resolved efforts to license the press.

Milton's contribution, then, was to offer the base layer in the development of modern free speech theory: that is, the notion that if allowed to compete in a "free and open encounter," "Truth" could be realized. Expanding on this premise, John Trenchard and Thomas Gordon, in Cato's Letters, provided some additional insight to sustain the general development of this concept in the early 1700s, urging, "Whilst all opinions are equally indulged, and all Parties equally allowed to speak their Minds, the Truth will come out." However, it is John Stuart Mill who is most often acknowledged to have offered the theoretical blueprint for what would become the "marketplace of ideas," stressing, as he did, open inquiry, consideration, and investigation.

Certainly Mill's influence on the marketplace concept could be a book unto itself; but in essence, as he portrayed it, freedom of expression was valuable on individual and social grounds, essential to the development of the rational capacity of man and instrumental in the quest for the social good of Truth. While not every "exchange" would inexorably lead to such conclusions, of course, intellectual liberties were necessary to allow for corrections over time and for at least the pursuit of truth to remain a possibility. More specifically, while Mill's contemplation of "liberty" in terms of untethered individual freedom did not necessarily apply to issues beyond the intellectual domain, his rejection in On Liberty of the prescribing of opinions by the state, his emphasis on minority rights to expression in the face of majority opposition, his vision of "truth" as the objective to be reached in the consideration of ideas, his skepticism of "certainty" as a claim in intellectual debate, his concern over assumptions of "infallibility," his unease with the complacency that settles in over time, and his assertion that "discussion" is both a central device in the collective reasoning endeavor — and a kind of "life support" instrument (my term) for the above-noted pursuit of "truth," over time — all provided essential theoretical materials in the mental construction of the "marketplace of ideas" metaphor. Thus, Mill's claim that free speech was essential to the permanent interests of man as a progressive being adjusted the model from that of "grappling" to "discovery," or a search engaged in by free and equal individuals, meaning that his argument was to provide the "best formulation" for what would later become the "marketplace" metaphor, inferred from Holmes's depiction of "free trade" in ideas.


Excerpted from The Constitution of Electoral Speech Law by Brian K. Pinaire. Copyright © 2008 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents


Title Page,
Copyright Page,
List of Tables,
Table of Figures,
INTRODUCTION - The Constitution of Electoral Speech Law,
PART ONE - Constitutional Elements,
CHAPTER 1 - Constituent Concepts,
CHAPTER 2 - Conceptual Confluence,
CHAPTER 3 - Rhetorical Modes,
CHAPTER 4 - Cognitive Contours,
PART TWO - Constitutional Episodes,
CHAPTER 5 - Burson v. Freeman,
CHAPTER 6 - McIntyre v. Ohio Elections Commission,
CHAPTER 7 - Buckley v. American Constitutional Law Foundation, Inc.,
CHAPTER 8 - Nixon v. Shrink Missouri Government PAC,
CONCLUSION - A Constitution We Are Expounding,
APPENDIX - Interview Methods and Protocol,

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