Re: Government Speech and Special Assessments

[Howard Wasserman]

John Nagle wrote: I am curious about Howard's proposed distinction.  Candidate elections are about "the public policy that will prevail in the community," too.  And the dangers of elected officials using public funds to entrench their position could easily be matched by non-elected officials doing the same thing.  "Government" (loosely understood as a singular entity acting through established policymaking processes controlled by popularly elected or appointed officials) speaks and acts as an entity with regard to the enactment and execution of policy proposals. Government is required to speak out in those ordinary policymaking procedures--to explain its policy and enforcement choices and decisions (why this tax cut? why this tax increase? why this military action), to rally support, to persuade the public as to why certain policies are (and should be) enacted and enforced.  And the content of that speech will be focused (presumably) on the public good, on why society benefits from that policy. Issue elections simply are an alternative procedure for establishing that public policy. And government, being responsible for carrying out the ultimate policy, still should have a voice in what is going to be enacted and that government will have to enforce. By contrast, the purpose of candidate elections is to determine the prior and initial question of who government is. That is, who will possess and wield the power to speak or act as government on matters of policy. Government (as an entity) does not and should not speak in the elections at which its very identity will be established. And the content of candidate-election speech will be less focused on the public interest as on the narrower interests of the candidate and her desire to be elected. The danger of elected officials entrenching themselves in power arises primarily (only?) in candidate elections, at which we determine who will assume/retain the power to act as government. The danger is that current office holders will wield the power (and money) to speak/act as government in order to maintain that very power to speak/act as government. The danger also is that public officials will use the power of "government speech" to further their own narrow self-interests in being elected. To the extent public officials (speaking/acting as "government") may seek to entrench their positions through their position on an issue election, those officials still should be subject to the popular check of the candidate election, at which voters decide who government is. By the way, if the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment? This is another version of the example I gave in my earlier post--an assessment on the Klan to fund a government educational campaign against racial hatred, discrimination, and violence. I concur with Marty Lederman's explanation for why the movie studio assessment (like the Klan assessment) would be unconstitutional as a tax on speech or on point of view. Howard Wasserman Florida International University College of Law