by Brian K. Pinaire. Stanford, California: Stanford University Press, 2008. 368pp. Cloth $60.00. ISBN: 9780804757249.
Reviewed by Thomas G. Walker, Department of Political Science, Emory University. Email: polstw [at] emory.edu.
Brian Pinaire, a Lehigh University political scientist, has produced an intriguing volume that traces the constitutional development of freedom of speech within the context of campaigns and elections. In doing so Pinaire explains the process by which two seemingly distinct areas of the law (the individual’s right to freedom of expression and the government’s authority to regulate elections) have become intertwined. The confluence of these two jurisprudential streams occurred as the Supreme Court struggled with the often-competing values of protecting political speech and guaranteeing the integrity of the electoral process. The book is divided into two sections. In the first, Pinaire develops the theoretical concepts and relationships that guide his understanding of electoral speech law. This is followed by four case studies, or “constitutional episodes,” in which Pinaire uses selected Supreme Court decisions to illustrate his theoretical argument.
The author first identifies two constituent concepts, “the marketplace of ideas” and “electoral superintendence,” that underscore the themes running throughout his analysis. The marketplace of ideas metaphor, of course, was introduced into our constitutional conversations by Oliver Wendell Holmes, Jr. in his dissenting opinion in ABRAMS v. UNITED STATES (1919). Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.” The supporters of this view believe that society is best served when expression, especially political expression, is left unfettered by government.
By electoral superintendence, Pinaire refers to the Supreme Court’s role as a guardian of the citizens’ right to free and fair elections. Beginning as early as the first White Primary cases (e.g., NIXON v. HERNDON, 1927) and accelerating after BAKER v. CARR (1962), the Court has embraced the task of serving as a referee in the political process. This has been especially so when questions of electoral inequality and issues of real or perceived corruption have been raised.
The Supreme Court’s early decisions on electoral speech emphasized a classic conception of free expression that approximated Holmes’ notion of the marketplace of ideas. This position rests on the belief that more speech is preferable to less speech. Or, as the dissenting Justice Scalia stated in McCONNELL v. FEDERAL ELECTION COMMISSION (2003), [*1136] “Given the premises of democracy, there is no such thing as too much speech.” This conception assumes that truth will most readily emerge from an uninhibited exchange of ideas and that any regulation of the marketplace is seen as unnecessary paternalism.
The classic position received its first serious challenges in the reapportionment cases of the 1960s and the campaign finance controversies that emerged in the 1970s. Here the Supreme Court confronted questions of participatory equality arising from the realization that institutional rules and resource differences may make the marketplace of ideas an arena in which not everyone can participate equally. The justices also began expressing a concern not only for the rights of the speaker but also of the audience (see, for example, RED LION BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 1969).
The recognition that imbalances emerge in the electoral process led various policymakers, scholars, and judges to argue the necessity of regulating campaigns and elections. As Byron White wrote for a six-justice majority in the ballot access case of BURDICK v. TAKUSHI (1992), “Common sense, as well as constitutional law, compels the conclusion that the government must play an active role in structuring elections; ‘as a practical matter there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’” With such decisions the Court acknowledged government’s custodial role over the institutions and processes through which elections take place. Often the resulting regulations allow the interests of equality and electoral integrity to trump the free speech values promoted by the free marketplace conception of political expression.
Consequently, three different views of electoral law have emerged: the classic conception, the equality conception, and the custodial conception. In examining how these competing approaches influence constitutional development, Pinaire examines four rhetorical modes of argument that the justices have used to express their sincere as well as strategic preferences. The “historical mode” advances the importance of nation’s deeply held traditions and values. It interprets government efforts to regulate electoral speech in light of the longstanding beliefs of the American people, many of which date back to the Founding. The “empirical mode” places an emphasis on data and the inferences that can be drawn from quantitative evidence. In campaign finance cases, for example, arguments advanced from this perspective would examine the amounts, sources, and recipients of money contributed and derive inferences about the influence of those funds on the electoral process. The “aspirational mode” pays heed to the goals of a self-governing people, seeking the proper relationship between political speech and the ideals of a representative government. In this rhetorical mode great significance is placed on the capability of citizens in a democracy to evaluate political arguments and make [*1137] political choices. And finally, the “precautionary mode” of argument acknowledges that human and institutional failures on occasion jeopardize the integrity of our democratic processes. It recognizes the necessity of preventive efforts to minimize such events.
To link these theoretical concepts to the actual decisions of the Supreme Court, Pinaire examines the thirty-nine electoral speech cases decided by Court between 1947 and 2006. He categorizes these decisions into five groups based on the targets of the challenged government regulation: political activists, candidates, campaign finances, newspapers, and political parties. He also classifies the positions taken by each justice who participated in these decisions. The results show that the initial electoral speech decisions were largely considered according to classic conceptions, with equality and custodial positions emerging later. Some justices have been generally consistent in their approach, such as Antonin Scalia and Clarence Thomas (classic conception). Others have demonstrated sharp breaks in their patterns. For example, both David Souter and Sandra Day O’Connor began their careers usually relying on a classic approach but later switched allegiance to a more custodial position.
Pinaire’s analysis of the justices’ behavior leads him to argue that jurists view campaign and election speech much differently than expression rights exercised in other settings. Taking strong issue with attitudinalists, Pinaire rejects the view that liberal/conservative measures of justices’ preferences can explain electoral speech outcomes. Instead, speech within the electoral context is unique because of its role in the political decision making of a self-governing people. As a consequence, Pinaire argues that only a more nuanced approach can effectively deal with the interwoven interests of both political speech freedoms and the need for honest and fair elections.
The second section of the book consists of four chapters with each containing an in-depth look at a single Supreme Court decision. In selecting his cases, the author’s goal was to identify a representative set of rulings. His final choices were BURSON v. FREEMAN (a 1992 political electioneering case), MCINTYRE v. OHIO ELECTIONS COMMISSION (a 1995 campaign literature disclosure law challenge), BUCKLEY v. AMERICAN CONSTITUTIONAL LAW FOUNDATION (a 1999 petition regulation case), and NIXON v. SHRINK MISSOURI GOVERNMENT PAC (a 2000 campaign finance decision). The cases varied not only in subject matter, but also in court of origin and decisional outcome. The case studies rely on archival research (legal documents, journalistic accounts, court opinions) as well as interviews with key individuals who participated in the cases. The chapters focusing on these four “constitutional episodes” apply Pinaire’s theoretical concepts and carefully lead the reader from the origins of the dispute through the Supreme Court’s opinion deciding the case. The analysis explores the conceptual constituents, the rhetorical modes, and the cognitive contours that shaped the Court’s [*1138] interpretation of the Constitution.
Pinaire expresses hope that his book will be of interest to a wide variety of scholars as well as to concerned citizens. Realistically, however, THE CONSTITUTION OF ELECTORAL SPEECH LAW is likely have a much narrower audience. Some scholars of the law, especially those who prefer to study the judicial system from a more behavioral or positivist perspective, will not be attracted to the approach Pinaire takes. And few members of the general public will have the necessary background to appreciate the theoretical arguments Pinaire advances.
Nevertheless, Pinaire’s volume is a worthy read for those interested in legal development. This is especially so for individuals seeking a better understanding of how law evolves through the Supreme Court’s expounding of the Constitution. Readers should be forewarned, however, that much of the material is rough sledding, especially in the chapters that develop theory and concepts. As exemplified by 83 pages of endnotes, the author goes to great lengths to provide rich documentation for his argument. This is a strength of the book, yet at times references and quotations are embedded into the text to a degree that the smooth flow of the argument is interrupted. Moreover, the work is densely written and characterized by complex sentences that too frequently exceed 100 words. For scholars, however, who are steeped in the subject matter and comfortable with Pinaire’s approach the book has much to offer. Few other volumes are devoted to an understanding of how the Supreme Court blends disparate lines of legal thought. It is a welcome addition to the literature.
ABRAMS v. UNITED STATES, 250 U.S. 616 (1919).
BAKER v. CARR, 369 U.S. 186 (1962).
BUCKLEY v. AMERICAN CONSTITUTIONAL LAW FOUNDATION, 525 U.S. 182 (1999).
BURDICK v. TAKUSHI, 504 U.S. 428 (1992).
BURSON v. FREEMAN, 504 U.S. 191 (1992).
McCONNELL v. FEDERAL ELECTION COMMISSION, 540 U.S. 93 (2003).
MCINTYRE v. OHIO ELECTIONS COMMISSION, 514 U.S. 334 (1995).
NIXON v. HERNDON, 273 U.S. 536 (1927).
NIXON v. SHRINK MISSOURI GOVERNMENT PAC, 528 U.S. 377 (2000).
RED LION BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 395 U.S. 367 (1969).
© Copyright 2008 by the author, Thomas G. Walker.