Campaign Speech and the Universal Dilemma in the Common Law of Elections: A Lesson from the Anglo-American Divide

Abstract

On first – or second, or third – glance, the courts of the United States and the United Kingdom have adopted hyperbolically divergent responses to state regulation of campaign speech. In both nations, highest levels of government have variously sought wide-ranging control over campaign practice. Courts have subsequently had to weigh how such legislation can be reconciled with individual speech rights and legitimate democratic process. While the House of Lords and Supreme Court in the UK (hereinafter, the UKSC) has declined to strike down campaign speech legislation, the US Supreme Court has so aggressively intervened that one leading election law scholar has characterized the result as “a regulatory structure created by the Court.” The scholarship offers a diverse array of explanations for this trans-Atlantic divide, ranging from constitutional doctrine to differing cultural commitments. Yet through a close analysis of select cases from each jurisdiction, this chapter argues that investigation of the underlying doctrinal divergence reveals a deeper conceptual parallel: democratically determined electoral procedure may pose certain insoluble paradoxes for judicial review. The extensive, norm-peddling approach of American campaign finance law and the legislature-trusting reluctance of the UKSC to strike down campaign regulation both reveal a basic problem that courts confront when reviewing democratically selected law. Where legislation does not grossly contravene a higher constitutional instruction, courts can only strike down electoral legislation through ultimately adverting to normatively independent principles. Advancement of such principles extends beyond the legal analysis that is characteristic of constitutional interpretation. The divergent reactions of the UKSC and Supreme Court to this problem affirm its centrality to electoral regulation in general and campaign speech in particular. The interventionist posture of the US Supreme Court has taken the form of a (critically savaged) assessment of the corrupting effects of campaign financing. Leaving aside the wisdom of transmuting the campaign finance query into a corruption query, this chapter observes that this analytic framing simply confirms that robust engagement with the regulation of campaign speech necessarily involves advancing stand-alone normative principles. By approaching the topic through a reflection upon corruption – a richly political concept that expresses substantive moral commitments – the Supreme Court affirms the richly normative character of the endeavour. Conversely, the UKSC has been perhaps more plaintive in recognizing the fundamental challenge posed by a standing government advancing a vision of how future campaigns should unfold, but has declined or evaded robust engagement with the problem. The UKSC’s retreat to the narrowest doctrinal grounds to resolve disputes reveals its aversion to normative engagement regarding foundational democratic principles. Ultimately, both courts reveal the judicial discomfort with engaging in core democratic reasoning, even if they adopt differing strategies of reframing or declining. Neither approach can resolve the incompatibility between the electorate’s autonomy to set procedures for its own governance and the judiciary’s obligation to review such terms; and both courts are haunted by this tension. This chapter explores this problem by first establishing the differing characters of judicial approaches to campaign finance speech. It then considers the obvious explanations for the differences between the US and UK treatments of constitutional speech and observes that such explanations cannot explain the divergent qualities of the jurisprudential traditions. Finally, it considers the broader tension between the legal interpretation and democratic self-determination to explain the presence of maximalist and minimalist development in the two jurisdictions.