Separation of campaign and state

April 7

I want to thank Eugene and the Volokh Conspiracy for inviting me to guest blog this week on the concept of “Separation of Campaign and State,” which–talk about coincidence-just happens to be the title of my recent article published at 81 Geo. Wash. L. Rev. 2038 (2013).

As the title suggests, in this piece I argue that the Supreme Court should adopt a principle of “separation of [political] campaign and state” as a first principle of First Amendment jurisprudence. Like the “separation of church and state,” “separation of campaign and state” does not appear in the Constitution, but flows from the document’s structure and purpose. Under such a principle, not only would the First Amendment protect political speech from government limitations, but it would move the government out of the business of interfering with political campaigns through speech content regulations, government financing of political campaigns, much government regulation of political parties, and government efforts to tip the scales toward certain candidates through ballot designations and favored treatment under the law. Like “separation of church and state,” “separation of campaign and state” hardly resolves all the difficult issues of First Amendment jurisprudence surrounding the regulation of political campaigns, but it does resolve many such cases in a more coherent fashion than the Court’s current jurisprudence, while providing a framework for addressing the harder cases.

The Supreme Court has long recognized that there is “practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama. It has written that the right of association is “at the foundation of a free society,” Shelton v. Tucker, and that “the First Amendment affords the broadest protection to … political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” Buckley v. Valeo, quoting Roth v. United States.  Indeed, in Buckley the Court noted that “it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” As the First Amendment is traditionally seen as a barrier to government regulation, the ability of Congress and state legislatures to regulate would seem to be highly circumscribed.

Yet the Court has also stated that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest,” Storer v. Brown, and “[t]he constitutional power of Congress to regulate federal elections is well established,” Buckley. 

If this seems like a formula for some judicial schizophrenia, it is. It is difficult to reconcile “political expression [is] at the core of … the First Amendment,” Buckley, such that “protection of robust discussion is at its zenith,” Meyer v. Grant, with the notion that Congress has “broad authority” to regulate campaign speech, Nixon v. Shrink Missouri Government PAC (Breyer, concurring). We should note here that campaign finance is by no means the only issue in play. The Court has also had to deal with regulation of political party organization, allegedly false campaign speech (including the pending Susan B. Anthony List v. Driehaus), and more. But campaign finance cases have been the most consistent and controversial part of the Court’s campaign regulatory diet.

Given the conflicting dictates of maximum protection and broad authority to regulate, it is not surprising that the Court’s campaign finance jurisprudence has waxed and waned. After more than 50 years of dodging the issue, the Court’s 1976 Buckley decision adopted a tone highly skeptical of government regulation, but nevertheless allowed extensive government regulation of core political speech, even as it attempted to cabin that regulation. Early post-Buckley decisions, most notably the forerunner to Citizens United, First National Bank of Boston v. Bellotti, retained that skeptical tone, but by the mid-1990s the Court was increasingly deferential to regulatory schemes. This “new deference” culminated in the lackadaisical 2003 decision in McConnell v. Federal Election Commission, which checked off on unprecedented campaign regulation and suggested it wouldn’t apply much scrutiny if Congress wanted to regulate still further.

Since 2006, however, the Roberts Court has returned to Buckley’s skeptical mood, making substantial progress is pushing regulation back into the cabin originally created in Buckley. But the Roberts Court has refused to break with flawed elements of Buckley, notably in its continued constitutional endorsement of government funding of political campaigns, and this threatens to undermine its substantial achievements in protecting free speech.

What is needed to protect free speech and our basic democratic institutions, and what I believe the Constitution was intended to provide, is a robust doctrine that prevents state interference with the process by which the government is selected — a doctrine of separation of campaign and state, and that’s what I’ll be blogging about this week.

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Eugene Volokh | April 7