Scratching the surface

April 11

Separation of Campaign and State” checks in at about 25,000 words, and I feel it barely scratches the surface of setting forth the justifications for and benefits of a doctrine of separation of campaign and state. Cutting it to five blog posts is to barely leave a fingerprint on the surface. Nonetheless, I will talk just a touch about what such a doctrine might look like in a few of its particulars.

Separation of campaign and state conjures up images of another First Amendment doctrine, and it is intended to. So first, a word about separation of church and state. Church and state doctrine at the Court is, admittedly, something of a mess, with its rationale and application shifting over time and drawing substantial criticism from both left and right. Certainly the “wall of separation” must be regularly policed. Yet I believe the mess is frequently overstated. For all the importance of establishment and free exercise cases that reach the Supreme Court, and for all the heat and light they generate, most battles are fought over very narrow ground. The big battles of church and state are largely resolved.

The state cannot provide direct operational subsidies for propagating sectarian beliefs; it cannot direct churches to include certain disclaimers or other messages in their communications, except in limited cases where such messages are applicable broadly in society without regard to the nature of the entity (such as safety notices); it cannot police statements of faith and theology for their truth or falsity (again, except as they would fall within the contours of certain broader laws such as defamation). The government cannot force churches to register with the state or report the names of their adherents and their levels of financial support. It is broadly agreed that individuals and organizations are free to support or withhold support from churches as desired. It is understood that public schools cannot discriminate against sectarian student groups, nor favor them or favor any sectarian theology. It may not discriminate against churches on the basis of their sources of financing. In short, the major issues of church and state relations are largely resolved. There is no collision between some alleged “broad authority” of the state to regulate religion, and the First Amendment. Disputes — as emotional and important to the parties and society as they sometimes are — are relegated to the margin.

In the political realm, in contrast, all of the above issues (or their political equivalent) remain unresolved, with remarkably little guidance. In short, “separation of church and state” has accomplished far more than its critics sometimes admit.

Separation of campaign and state will, like church and state, leave lines to draw. May the state ban campaigning within 100 yards of a polling place? Is that the “place” or “manner” of an election, or is that regulating the campaign? I don’t think it much matters. Nor, assuming the state could do so, would it much matter if the line were drawn at 50 feet or 200 feet, so long as it were not drawn at some unreasonably large radius. This type of question is precisely that found at the fringe of the First Amendment, not its core.

Of course, many of the lines of separation have already been drawn. May a state ban election day editorials? No. (Mills v. Alabama). May it require newspapers to give equal space to candidates? No. (Miami Herald v. Tornillo.) What about the same questions applied to the internet? Presumably not.

Others lines, however, would become clearer. The government could not directly fund candidate campaigns. It could not require messages such as “I’m John Doe and I approve this message,” on political advertising. It could not police the truth or falsity of political messages.

Conversely, regulation of the time, place and manner of elections would be permitted. The government may establish polling places and hours, determine the manner of election (such as single or multi-member districts, and how those districts are determined). The Voting Rights Act clearly falls within the times, places, and manner of conducting elections. This is not to agree with all or even any particular cases governing such affairs — only to note that they would be adjudicated as they are now. But there is little question about general state power to regulate elections, as opposed to campaigns.

Campaigns are not elections, and elections are not campaigns. Birth precedes death; pregnancy precedes birth, but they are not the same. The Court’s First Amendment jurisprudence is replete with ritual incantation of the importance of political speech being the “core of the First Amendment.” But the last hundred years of legislation and jurisprudence have shown that the core is anything but secure so long as the Court also holds that the power to regulate elections gives legislatures broad power to regulate campaigns.

In decisions such as Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and Davis v. FEC the Court has recognized the core tension of government involvement in campaigns beyond the direct suppression of speech, but the opinions seem to be in desperate search of a theory. There is much work to be done, but I suggest that Separation of Campaign and State is at the core of our First Amendment and provides the theory that can link together the Court’s diverse body of campaign cases.

Last week, in McCutcheon v. FEC, Justice Roberts began his opinion, “There is no right more basic in our democracy than the right to participate in electing our political leaders … and those who govern should be the last people to help decide who should govern.”

With a few more opinions like that, Separation of Campaign and State may arrive sooner than we think.

Again, I want to thank Eugene and the Conspiracy for the space, and also all those who added thoughtful advice and criticisms in the comment section.

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