Electoral Exceptionalism and the First Amendment

Abstract

Electoral Exceptionalism and the First Amendment^ In Arkansas Educational Television Commission v. Forbes,1 the Supreme Court held that at least one phase of the process, a candidate debate, is special for First Amendment purposes. At issue was the decision of a state-owned television station to exclude from the congressional candidate debate it was sponsoring an independent candidate who had qualified for the ballot; the station included only the Democratic and Republican candidates. In essence, the case required the Court to decide whether state was best characterized as the state or as private journalism. In the Court's view, the categorization was more apt.2 Although there is no logical necessity to treat state as either pure or pure state action, the very fact that dramatically different and mutually exclusive constitutional rules attach to the state than attach to journalism3 explains why the Court in Forbes believed it necessary to assign a dominant characterization. And as a consequence of this characterization decision-of deciding to consider state as a member of the species journalism and not as a member of the species state-the constraints of content and viewpoint neutrality that might otherwise bind agencies of the state were held not to apply when the state enterprise was a public television station. Yet having decided that the journalistic character of state television rendered it immune from otherwise applicable First Amendment constraints, the Court went on to add an intriguing qualification. According to Forbes, because candidate debates play a special role in democratic politics, these debates should constitute an exception to the newly announced principle that public television remains unfettered by the First Amendment's demand of viewpoint neutrality.4 State-sponsored debates are subject to the requirement of viewpoint neutrality, even though the Court recognized that other public television programming, including political programming, could be as viewpoint-skewed as the station's management desired. That is, the Court held that the First Amendment applied in one way to general activities of the state, another way to activities of state-owned media, and yet another way in the context of stateowned media sponsoring candidate debates as part of the process. Our goal here is not to deal with the question of state journalism, nor even with the odd conclusion, which ultimately determined the result in Forbes, that excluding a candidate from debate because he is unlikely to win is not a form of viewpoint discrimination.5 Rather, we want to explore the implications of the Court's holding that the First Amendment requires unique treatment of candidate debates because, as the Court concluded, such debates play a special role in democratic politics. More broadly, we want to explore a possible extension of this principle. If candidate debates, because of their special role in constructing democratic politics, are subject to special and debate-specific First Amendment principles, is it possible that the Supreme Court, or at least the six members of the Court who constituted the Forbes majority, might also believe that other aspects of politics-or even elections simpliciter-could also be the subject of special election-specific First Amendment principles because of their special role in democracy? Even if the current Court would not accept this extension of Forbes, is it nonetheless a consistent direction along which constitutional oversight of politics might logically proceed? These are the questions we explore here. I. The Rhetoric of Exceptionalism The position we take up is one we will label electoral exceptionalism. According to exceptionalism, elections should be constitutionally understood as (relatively) bounded domains of communicative activity. Because of the defined scope of this activity, it would be possible to prescribe or apply First Amendment principles to processes that do not necessarily apply through the full reach of the First Amendment. …