Campaign speech and the universal dilemma in the common law of elections: a lesson from the Anglo-American divide

Abstract

This chapter provides a close analysis of the very different jurisprudential treatment of campaign speech in the United States and Britain. The jurisprudence developed by the US Supreme Court is of course a well-known outlier, in which the rights to speak and to spend money on speech are given the broadest possible scope and protection. The UK system, in contrast, readily permits what in the US would be considered intolerable restrictions on the rights to speak and spend money for political purposes. The chapter traces these differing approaches ultimately not to distinctions in each society's underlying conceptions of democracy, but to differences between the self-understandings of the two systems' apex courts, in particular to their understandings of epistemological competence. The US Supreme Court claims independent insight into the requirements of democratic legitimacy, whereas the UK Supreme Court does not, with the result that the UK court extends deference to other branches of government in a way that the US court is unwilling to do.