What are Campaigns For? The Role of Persuasion in Electoral Law and Politics PDF
Preview What are Campaigns For? The Role of Persuasion in Electoral Law and Politics
What Are Campaigns For? This page intentionally left blank What Are Campaigns For? The Role of Persuasion in Electoral Law and Politics j ames a. gardner 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education . Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in A rgentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Copyright © 2009 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. ________________________________________________________________ Library of Congress Cataloging-in-Publication Data Gardner, James A., 1959- What are campaigns for? : the role of persuasion in electoral law and politics / James A. Gardner. p. cm. Includes bibliographical references and index. ISBN 978-0-19-539261-6 (hardback : alk. paper) 1. Political campaigns—United States. 2. Election law—United States. I. Title. JK2281.G37 2009 324.70973—dc22 2009001738 ________________________________________________________________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers Th is publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confi rm that the information has not been aff ected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com For Lise This page intentionally left blank Contents Preface ix I ntroduction 1 1 Th e Political Campaign: Emergence of the Deliberative Ideal 13 2 E lection Law and the Formation of Public Opinion 45 3 Campaigns and the Stability of Political Opinion 83 4 Democratic Th eory and the Th in Election Campaign 115 5 Th e Tabulative Campaign 147 C onclusion 191 Bibliography 195 Index 213 vii This page intentionally left blank Preface this book represents the culmination of a long personal journey during which my beliefs about the purposes and desirable characteristics of election campaigns changed dramatically. Like most Americans, I have found electoral politics a constant source of disappointment. Candidates, it has long seemed to me, have been reluctant to speak their minds, to address challenging p roblems boldly, and to risk their political fortunes on a clear vision capable of inspiring a public hungry for thoughtful and intelligent leadership. As a result, our electoral politics has frequently struck me as inadequate, undignified, and beneath not only our aspirations but also our capacity as a democratic people seeking to shape our own collective destiny in the world. As a lawyer and legal academic, my point of entry into the fi eld of election campaigns has been the law and, more specifi cally, the constitutional doc- trines that structure our democratic institutions. Upon examining these legal regimes with some care, I came at fi rst to the conclusion that they thwart our ability to produce the kind of campaigns to which we evidently aspire. I consequently began this project with the intention of analyzing and critiquing our legal institutions and then suggesting legal reforms that might be capable, if not of curing the relevant problems, at least of creating condi- tions in which our electoral politics could better fl ourish and more closely approach our ideals. As I looked more deeply into the subject, however, I began to doubt my premises. Our beliefs about campaigns are comparatively recent, and from a historical point of view highly contingent. A half-century of social science research continues to affi rm the existence of severe and crippling obstacles to the achievement of the kind of campaigns for which most of us wish. Even the most sophisticated theoretical work now being done on democracy relegates campaigns to a much less exalted place in the democratic arena than conventional wisdom would suggest. A s a result, I eventually came around to the view I now hold and have laid out in this book. Campaigns may be ugly and undignifi ed, and they are with- out question important events in the life of a democratic polity, but—to my ix
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