GOVERNMENT ELECTION ADVOCACY: IMPLICATIONS OF RECENT SUPREME COURT ANALYSIS

• Published in: Administrative law review Vol. 64; no. 4; pp. 835 - 907
• Main Author: André, Steven J.
• Format: Journal Article
• Language: English
• Published: Chicago Washington College of Law of the American University and by the Section of Administrative Law and Regulatory Practice of the American Bar Association 01.10.2012; American Bar Association
• Subjects: Administrative law; Courts; Elections; First Amendment; First Amendment-US; Freedom of speech; Government; Government officials; Municipal governments; Political campaigns; Political candidates; Political partisanship; Political speeches; Voting
• ISSN: 0001-8368; 2326-9154

Most lower courts have treated government election partisanship as constitutionally unsupportable. They have grappled with pinpointing the precise constitutional infirmity and with determining when government has crossed the line--most accepting an objective reasonableness standard--while some have sought comfort in a per se rule. Other courts, relying upon a less-than-rigorous conception of the government speech doctrine, have perceived no constitutional difficulty with such government election advocacy. The US Supreme Court, in spite of the split in lower court authority, has never directly addressed the problem--neither in the form of campaign regulations nor as a question of a constitutional limitation preventing government from lending support to one contending faction on a matter under consideration by voters. The US Constitution contains no definite reference to the problem. Nevertheless, distinct outlines of the Court's treatment of the role of government in the election context lead inescapably to the conclusion that the government's role as speaker will be treated no differently than its role as regulator. Here, Andre determines a constitutionally consistent approach to the problem of government election partisanship in light of the Supreme Court's First Amendment and election jurisprudence bearing upon the question of government efforts to influence the outcome of the electoral process.