The Nudging Ballot? A Response to Professor Foley

Abstract

For those committed to greater “equality of campaign discourse,” Edward Foley offers a shrewd proposal: Stop trying to limit speech in preexisting forums. The Supreme Court simply won’t allow it. Instead, Professor Foley suggests, create new forums - forums that even the Supreme Court is likely to concede may be subject to equality-promoting measures - and tailor them as needed. For Professor Foley, the first place to turn is the ballot. The state could transform that space into a digitized forum for speech. By analogy to the broadcasting precedents, Professor Foley argues, the government would be free to set the terms of the debate.

Professor Foley, through his call for the facilitation, rather than the limitation, of campaign-related speech, advances a powerful insight. And by combining the ballot with digital technology, he very well may have identified the rarest of creatures: a potentially effective and constitutionally permissible counterweight to other forms of campaign-related speech. The reform-minded nevertheless should tread carefully because of distortions and manipulations possible in the digital sphere.

Note: This paper was presented as part of the "Beyond McCutcheon" symposium at the Brennan Center for Justice May 1, 2014. It responds to Edward B. Foley, The Speaking Ballot: A New Way to Foster Equality of Campaign Discourse, 89 N.Y.U. L. Rev. Online 52 (2014).

Keywords: elections, voting, ballots, campaigns, political advertising, digital communication