Electoral Integrity: The Confidence Game

Abstract

First Amendment scholar Robert Post has finally trained his formidable intellect on the thorny problem of electoral speech and campaign finance regulation. He explains that the Constitution, as a charter of self-governance, must at all costs preserve the public’s confidence that their representatives are responsive to public opinion, not merely sporadically or episodically but continually. An absence of this "electoral integrity" means that the people have no faith in the fidelity of their government. And so an account of electoral speech within American representative democracy that is blind to the preservation of electoral integrity is doomed from the get-go. In Post’s view, the Supreme Court’s recent campaign finance jurisprudence — most notably, Citizens United — has ignored the unignorable concept of electoral integrity, at our peril. Post’s analysis admirably identifies the difficulty at the core of the status quo. I think it undeniably correct as a matter of democratic theory. However, I am less convinced that much of its utility survives the translation to constitutional law.

In this short piece, I attempt to explain how a value as fundamental as electoral integrity can be an elephant in one sphere and a mouse in the other. Part I describes the distinction between democratic theory and constitutional law, and traces the limits of a concept like electoral integrity within the latter arena. Part II offers evidence of these limits through Citizens United, arguing that a decision more clearly engaging the principle of electoral integrity might well have arrived at the same outcome. Part III suggests more heft for theory in a different aspect of Citizens United: the articulation of burdens that regulations exact. And Part IV briefly considers that constitutional law’s capacity to incorporate some aspects of democratic theory but not others may simply reflect the different objectives of the different spheres.

Keywords: campaign finance, electoral integrity, Robert Post, democratic theory, constitutional law