ACSBlog: The Blog of the American Constitution Society

The Sixth Circuit held today that public funds may be used to fund a campaign intended to influence an election. The case arose out of a ballot initiative intended to overturn the act of a local city council. To defeat the initiative, the council used public money to fund "hanging of 'Vote No' banners, mailing of leaflets to residents, advertising in local newspapers, and using the town newsletter to support the Council's position."

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.

(hat tip: Bashman)