Campaign Speech Law with a Twist: When the Government is the Speaker, Not the Regulator
Helen L. Norton
University of Colorado School of Law
May 10, 2011
Emory Law Journal, Vol. 61, p. 209, 2011
U of Colorado Law Legal Studies Research Paper No. 08-11
Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and over government speech more generally. The Court’s "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has impermissibly restricted or silenced their speech. In contrast, disputes over what this Article calls "governmental campaign speech" involve free speech clause and other challenges by private parties who seek instead to silence the government’s speech on matters subject to vote by members of the public or their elected representatives.
This Article thus explores when, if ever, governmental campaign speech on contested ballot and legislature measures is sufficiently dangerous to justify a departure from the general rule that government’s own speech is insulated from free speech clause review. This inquiry invites important and challenging questions about both the nature of government and the nature of speech, valuably forcing us to think about how government does, and should, work - as well as how speech does, and should, work. To this end, this Article re-examines the constitutionality of governmental campaign speech by incorporating perspectives offered by the emerging - but so far entirely separate - constitutional debates over campaign finance reform and government speech.
This Article contends generally that the more government speech on issue campaigns, the better. Transparently governmental campaign speech often provides great value to the public: it enhances political accountability by informing voters of their governments’ priorities and preferences; it provides a valuable heuristic for those who do not have the time or inclination to evaluate the competing arguments for themselves; and it adds to the marketplace of available ideas and arguments, especially (but not only) as a counter to expression from powerful private sources.
The Article also identifies limits to its general proposition that government’s campaign speech furthers, rather than frustrates, key constitutional values. First, it emphasizes that the government should be permitted to assert the government speech defense to constitutional challenges to its campaign speech on contested ballot or legislative measures only when that speech is transparently governmental in origin - i.e., when the public can clearly identify the message’s governmental origins and thus hold the government politically accountable for its views. Second, it distinguishes government campaign speech that involves government’s endorsement of specific candidates, concluding that the use of official government resources to engage in campaign speech endorsing or opposing specific candidates raises greater constitutional threats to First Amendment interests in constraining incumbents’ self-perpetuation. Finally, it highlights the availability of statutory and other non-constitutional limits on government campaign speech, concluding that such constraints are constitutionally permissible yet often unwise as a policy matter in light of such expression’s great instrumental value to the public. It urges instead that policymakers carefully target such constraints to address specific instances of abusive government speech.
Number of Pages in PDF File: 57
Keywords: constitutional law, First Amendment, government speech, election law, campaign finance reform
JEL Classification: K30
Date posted: May 11, 2011 ; Last revised: April 13, 2012