One question recently raised here is whether in thinking about campaign finance reform, New York Times editorialists and their followers would place a limit on how much would be spent, and how negatively, to keep Donald Trump out of the White House. The Times believes him to dangerous to the country, entirely unfit for office, at the same time that it counsels that the process by which he or any candidate is evaluated must include restrictions on expenditures to urge defeat (or election). It is fair to note these tensions, testing reform principles and intuitions in the concrete conditions of electoral competition where there are found real candidacies, meaningful choices, and serious consequences.

A similar test might be conducted in the case of limits directed toward the timing of certain speech. Under campaign finance jurisprudence, the First Amendment recognizes a difference between fully protected “issues” speech and the speech with the effect or purpose of influencing elections that may be regulated to prevent corruption or its appearance. The reforms of recent years have whittled away at the distinction, regulating electioneering communications on policy issues that may contain a reference to a candidate and so, being close to an election, could sway voters. The usual formula ropes this speech into regulatory control within thirty or sixty days of an election.

The reform theory has been that the purpose of such communications is likely to influence an election, and if not the purpose, then its effect, and records have been assembled to establish that the spenders have in mind to make a mockery of the law and that stricter enforcement is therefore essential. In the thick of the election, it is argued, the candidate/issue line distinction does not hold, and the aims of campaign finance laws, both limitations and disclosure, should control. The Supreme Court has trimmed back this theory, and a now complex jurisprudence allows for election season-specific regulation of communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449, 469-470 (2007).

In the current election, the Trump candidacy will test acceptance of the basic reform tenet about the election season regulation of issues speech.  With the debate about Trump has come a debate about the package of stances that has come to be known as “Trumpism.” A number of his supporters have defined it as “ secure borders, economic nationalism, interests-based foreign policy, and above all judging every government action through a single lens: does this help or harm Americans?” It is recognized that the program cannot be argued, for or against, without reference to Trump: “For now, the principal vehicle of Trumpism is Trump.”  And Trump critics, ones as severe as Paul Krugman, recognize the “Trumpism” behind Trump.

We have, then, in Trumpism, a program that can only be presented or explained or clarified with reference to the candidate Trump, as good an example of any of why, as the Supreme Court declared years ago:

[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.

424 U.S. 1, 42 (1976).  In contemporary reform theory, the problem of “practical application” is claimed to be properly resolved in favor of regulation.  The “reference” to Trump, inevitable in the debate about Trumpism, will be seen in any number, if not the vast majority of cases, to be clearly on the election-influencing side of the line– a communication “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

How this question of “practical application” will affect speakers, or potential speakers, concerned about Trumpism remains to be seen. Perhaps some will say that the regulatory consequences are modest, in some instances “only” mandatory reporting to regulatory authorities of the financing of the communication. Others, less sanguine, will take heightened interest in any fresh intervention of the Supreme Court, which could come as soon as its decision on whether to take up a case like  Delaware Strong Families v. Denn. At any rate it is sure to pose another challenge to the Times’ complex, awkward balancing of an urgent concern over an election stated to have near-apocalyptic significance, and its staunch advocacy of the regulation of political spending in the election season.

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