Elections as a Distinct Sphere Under the First Amendment

This essay asserts that the strongest legal arguments for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, ultimately rest on the view that elections should be considered a distinct sphere of political activity for constitutional purposes. Elections should be conceived as distinct from the more general arena of democratic debate, both because elections serve a specific set of purposes and because those purposes arguably can be undermined or corrupted by actions such as the willingness of candidates or officeholders trade their votes on issues for campaign contributions or spending. Given this risk of corruption of the political judgment of officeholders, regulations of the electoral sphere - including how elections are financed - might be constitutionally permissible that would not otherwise be permissible outside the electoral sphere, including in the arena of democratic debate more generally. The essay argues that this is the form of argument best structured to be accepted within the American constitutional tradition and that is necessary to justify measures such as ceilings on campaign contributions, disclosure of campaign spending, and limits on the role of corporate and union electioneering. If such regulation would be desirable as a policy matter, its permissibility would depend on the ability to develop First Amendment principles permitting such regulation while still prohibiting regulations that some would see as somewhat similar in non-electoral environments. Even if the Supreme Court has implicitly rejected this argument in Citizens United (without directly confronting the argument), the various possible ways of responding constitutionally to the decision, through federal or state legislation, administrative regulation, or corporate governance rules, depend on conceptualizing clearly the nature of the underlying problem and the justifications for the specific policy response being adopted. Whatever the merits of any particular response, this essay argues that the best underlying justification for such responses will depend on recognizing the distinct values, purposes, and justifications that underwrite the role of elections in democratic societies