Deliberation or Tabulation? The Self-Undermining Constitutional Architecture of Election Campaigns

Abstract

Perhaps the one completely uncontested truth in the shared public ideology of American politics is that an election campaign ought to be a serious occasion in the life of a democratic polity, a time when citizens reflect maturely on the great public issues of the day. On this view, the ultimate purpose of election campaigns is to offer voters and candidates a meaningful opportunity for deliberation and persuasion. Of course, the typical modern American election campaign does not seem seriously reflective and deliberative so much as shallow and unengaging. Reasoned persuasion seems to play a minor role, if that. The paper asks whether this gulf between American political ideals and reality might have its roots in any kind of flaw in our legal institutions. Do we have, that is to say, a constitutional infrastructure well suited to summoning forth the kind of electoral politics to which we aspire? The paper pursues this question through a close institutional analysis of the federal constitutional jurisprudence of ballot access, public financing of presidential campaigns, the associational rights of political parties, and the giving and spending of money in election campaigns. This analysis reveals that although the American constitutional regime pays emphatic lip service to the ideal of reasoned persuasion in elections, its actual institutional arrangements in fact presuppose just the opposite - election campaigns that are thin rather than thick, that are aggregative rather than deliberative, that are aimed at counting political preferences, not creating them. The paper concludes by examining briefly some of the implications of this disjunction between our democratic ideals and practices for our conceptions of democratic legitimacy, our aspirations for better quality campaigns, our notions of the venues in which democratic politics is actually conducted, and some important scholarly critiques of electoral regulation.