Can Elected Officials Use Public Funds to Influence Elections?
In its conference today, the Supreme Court will consider whether to hear Kidwell v. City of Union, a case which considers whether or not elected officials may use public funds to influence an election. ACSBlog provided coverage of the Sixth Circuit's decision in this case last September:
A decision by Judges Julia Smith Gibbons and Richard Allen Griffin, both George W. Bush appointees, held that "the electoral process - not First Amendment litigation - is the appropriate recourse" against elected officials using public funds to influence an election.Judge Boyce Martin, a Carter appointee, dissented:
I believe that the Constitution properly prohibits the government from having a horse in the race when it comes to elections. When government advocates on one side of an issue, the ultimate source of governing power is shifted away from the people and the threat of official doctrine exists. Of course, the threat is not as omnipresent today in the United States as it is in some other countries. . . . ordinary democratic controls are insufficient as a remedy in situations where governmental influence threatens to undermine the independent political process. Governmental advocacy and campaign expenditures could arguably threaten to undermine free and fair elections, could be coercive, and could reasonably undermine the reliability and outcome of elections where the government acts as a participant. . . .In the ordinary case of governmental action outside of an election, political controls can remedy citizen disagreement with governmental actions. Citizens can make their voices known at the ballot box in the next election by voting current officeholders out. Governmental electioneering, however, diminishes the effectiveness of the political response and threatens underlying constitutional values and democratic principles. The outcome of elections ideally should reflect the pure will of the people unpolluted by government electioneering.
Interestingly, the cert petition being considered in this case raises the possibility of the Court prohibiting state funds from being used to influence elections under the Guarantee Clause of the Constitution. The Guarantee Clause says that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government," but it has been read as a nullity by the Supreme Court.
Regardless of whether the Court should choose to revive the Guarantee Clause as a textual hook for a decision, or instead look to principles implicit in the notion of elected government, the cert petition argues that the consequences of allowing the Sixth Circuit decision to stand would be disastrous:
A sharply divided panel of the Sixth Circuit in this case extended the government speech doctrine beyond all bounds of principle and precedent. According to the panel majority, that doctrine not only entitles the government to speak, but to spend public funds directly to influence the outcome of an election. That holding is not only wrong, but dangerous. In our constitutional democracy, elections are different. Elections are the fundamental check on the government. To hold that the government is free to spend public funds directly to influence the outcome of an election, as the panel majority did here, is essentially to hold that the government is free to ensure its own perpetuation in power. As the dissent below explained, “when the government uses tax dollars to enter an electoral contest and advocate in favor of a position or candidate, it distorts the very check on governmental power so central to our constitutional design—the next election.”