By Bradley A. Smith
The Court correctly recognizes the deeply troubling nature of the government policies at issue in Davis and Arizona Free Enterprise Club, which involved the government in favoring certain candidates over others, but it has not successfully articulated why those policies are offensive to the First Amendment, given that each law provides more resources for a candidate to speak.
This Article argues that the Court’s opinions show only an inchoate recognition of the core problem. Government involvement in regulating and especially in subsidizing candidate speech inherently entangles government in campaigns in a manner incompatible with core American assumptions about democracy, in much the same way that direct subsidies to churches violate the First Amendment’s religion clauses even if made available to all religions.
The Roberts Court, however, is trapped by its refusal to challenge precedents allowing government subsidies of campaigns and wrongly confusing the government’s authority to regulate the “time, place and manner” of elections under Article I, Section 4 of the Constitution as the authority to regulate political speech and campaigns. This Article argues from history, text, and structure that Article I, Section 4 applies only to regulating such actual election mechanics as the system of election, maintenance of voter lists, and the method of casting and counting ballots, not to the regulation of political debate that precedes elections.