False Campaign Speech and the First Amendment

Abstract

Although campaign reformers may believe otherwise, it is not only the money in campaigns that is problematic. Deceptive campaign speech can also threaten the integrity of the electoral process. It can distort the issues, distract the voters from making informed decisions, inhibit voter turnout, and alienate the citizenry. Its effects on the political system can be as corrosive as the worst campaign finance abuses. At the same, regulating false campaign speech raises serious first amendment issues. Not only, as the Court has stated, does the first amendment have its "fullest and most urgent application [in] campaigns for political office" but regulating campaign speech is especially problematic because the dangers and risks of allowing the government and the courts to interfere with the rough and tumble of political campaigns are extremely high. This paper presents the legal and policy issues underlying the question of whether deceptive campaign speech should be regulated. In so doing, it compares the reasons for and against the regulation of deceptive campaign speech with the arguments for and against the prohibition of corporate and labor campaigns expenditures upheld in McConnell v. FEC. Contending that the differences in the arguments in favor of regulating false campaign speech are not so different from the ones relied on by the Court in upholding limits on corporate and labor expenditures, the paper suggests that, for better or worse, the implication of McConnell is that restrictions on deceptive campaign speech would also be upheld. Yet while it may be true that McConnell sheds significant light on the validity of deceptive campaign speech restrictions, it may also be true that weighing the competing interests underlying campaign speech restrictions sheds significant light on the validity of McConnell.