The Senate’s invocation of Rule 19 against Senator Warren could not have been more curiously timed. Supposedly concerned to uphold senatorial debate standards, to keep out the nasty stuff, Senate Republicans disqualified Warren from further debate on the Sessions nomination because she read from Coretta Scott King’s 1986 statement opposing Mr. Sessions’ elevation to the bench. Meanwhile, the President routinely tweets out abuse of political adversaries, in the courts or (as in the case of John McCain) in the Congress.
Of course, the President is not bound by the Congressional rules and traditions. But that is the interesting question: if there are standards to be applied to democratic debate, especially to the remarks of senior elected officials, why should those standards be limited to legislative speech? And, if extended to executive branch speech, how?
It might be thought that standards of this kind are significant only in the management of a deliberative body: their function could simply be to avert fist fights on “the floor,” where debate takes place, or, short of violence, to keep order. There is more to them than just this functional administrative purpose. When the Senate censured Joe McCarthy in 1954, the politics were complex, but the Resolution noted his verbal abuse of adversaries. It cited his accusations that the Senate was convening a “lynch-party” against him, that a senior Member directing the Select Committee censure inquiry was “cowardly,” and that the Committee was acting as “attorneys-in-fact” for the Communist Party. The Senate applied the severe penalty of censure in part because McCarthy’s vicious speech violated “senatorial ethics” and "tended to bring the Senate into dishonor and disrepute."
This goal of protecting against institutional disrepute has been reflected for years in the ethics codes of both the House and the Senate. See, e.g. S. Res. 338, 88th Cong., 2d. Sess. (1964]; House Rule XXIII Cl. 1 (“A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.”) Members engaged in abusive and irresponsible speech are not only disregarding some housekeeping regulation, like a prohibition against bringing their dinners into the chambers: They are presumptively acting in violation of their personal ethical obligations. There is no reason why reckless, vituperative speech by executive branch officials would not bring dishonor and discredit to that branch of the Government.
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.
The 10th Circuit decided another disclosure case, Coalition for Secular Government v. Williams, on the mandatory reporting of “issue speech”. It held that an individual collecting small sums to wage a campaign on ballot questions did not have to comply with registration and disclosure requirements applicable under state law to “issue committees.” The "committee" that was really just a one-person enterprise was too "small scale,” the government's interests too limited: the cost in the particular case exceeded the benefits.
Did this result turn in any way on the nature of the advocacy – – that it was on issues, not for or against candidates? The courts have long distinguished electoral from issue speech in determining the scope of constitutional protections. Buckley v. Valeo, 424 U.S. 1(1976); Citizens against Rent Control v. Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). The government's interests in the case of campaign speech are more varied and include both the prevention of corruption and its appearance, and the assistance that disclosure provides to enforcement of contribution and other regulatory limits. The 10th Circuit found those rationales “irrelevant or inapplicable to issue committees,” and while it has upheld Colorado's issue committee disclosure in principle on the strength of another interest, the voters’ informational interest, it concluded that this interest was insufficient to sustain the law as applied to the Coalition for Secular Government.
In campaign finance law, this distinction between issues and campaign speech has led reform advocates and their allies in legislatures to insist that while the difference may matter to constitutional analysis some of the time, this cannot be not the case all of the time. They maintain that some issue speech is often campaign speech in disguise, and the Supreme Court in McConnell upheld "electioneering communication" disclosure on the basis of its finding that some issue speech was a “sham.” Now the courts must entertain claims in as applied to cases that the plaintiffs’ issue speech is not a sham, that it is the real thing, and that it cannot be regulated as campaign finance spending.
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate's campaign. This case is about the last of those options.