This book offers an important analysis of the conceptions and rhetorical modes used by justices to frame and decide cases involving electoral speech. In doing so, the author demonstrates control of the literature on election law, democratic theory, and the process of Supreme Court decision making.
Brian K. Pinaire seeks to explain the multiple influences that shape Supreme Court justices' opinions regarding the potential for and privileged status of electoral communication—and the ultimate implications of these Court rulings for American democracy. Electoral speech is viewed as the intersection of free speech and electoral process jurisprudence and, therefore, has a “two-fold significance for American democracy: that it implicates the means by which a polity deliberates and makes decisions (freedom of expression) and it keeps those structures and practices in place to record collective preferences and reflect the public will (campaigns and elections)” (p. xiii).
The author notes that his purpose “is comprehension not prescription” (p. xiv) and proclaims that the “complexity and distinction of this legal domain (Electoral Speech Law) have not been sufficiently appreciated (or examined)” (p. xiii). He emphasizes that the analysis of “electoral speech has tended to be subsumed within either the general categories of ‘free speech’ or ‘electoral process’ jurisprudence” (p. xiii). The book seeks to remedy this misunderstanding of the distinctiveness of electoral speech law.
In the first half of the book, Pinaire discusses four “Constitutional Elements” through which the Supreme Court decides electoral speech cases: “Constituent Concepts,” “Conceptual Confluence,” “Rhetorical Modes,” and “Cognitive Contours.” Chapter 1 offers an historical overview of First Amendment speech cases. Chapter 2 analyzes the evolution of First Amendment speech theory, explaining how Oliver Wendell Holmes' classic “market place of ideas” view moved in two separate directions: an equality conception, which is “directed primarily toward people and opportunities for participation,” and a custodial conception, which is rooted in “the state's propriety claim over the mechanics and institutions of the process by which elections are carried out” (p. 74). In Chapter 3, Pinaire delineates five rhetorical modes of legal argument: historical (argument from precedent), empirical (argument from the range of available evidence), epistemological (justification in situations were “proof” is inaccessible or non-existent), and aspirational and precautionary, which involve appropriations of cultural attitudes about ends and means. Finally, Chapter 4 analyzes the process of image construction through which justices define preferences and seek to persuade, articulating cognitive maps that draw upon both formal legal arguments and broader cultural values.
The author identifies 39 electoral speech cases since 1947. These are cases “wherein the Supreme Court either reviewed a law that specifically restricted freedom of speech during campaigns and elections, or where a more general law restricted speech as applied within the course of the electoral process” and a constitutional challenge existed on speech grounds (p. 5). These cases typically involved political activists advocating a cause or issue, candidates for public office attempting to communicate to the public, questions regarding campaign finance and the extent to which the use of money is regarded as protected speech, and the free speech rights of newspapers and political parties. The author chooses one activist case (McIntyre v. Ohio Elections Commission [1995]), one candidate case (Burson v. Freeman [1992]), and two money cases (Buckley v. American Constitutional Law Foundation [1999] and Nixon v. Shrink Missouri Government PAC [2000]), and spends one of the final four chapters on each, respectively. Each of these chapters offers “an analytic framework for understanding how the various elements [defined in this book] configured the case and ultimately shaped the constitution of the larger domain” (p. 15).
All of these cases were decided during the Rehnquist Court era. While Pinaire justifies his case selection in terms of the availability of both archival and interview evidence, this limited time frame, and the failure to include any cases from the Vinson, Warren, or Burger Court eras, calls into question the generality of his findings regarding the four elements of judicial decision making (constituent concepts, conceptual confluence, rhetorical modes of argument, and cognitive contours). Given the narrow time horizon of these cases, we do not gain an understanding of whether the place of these elements in Court decision making has changed over time, an important test of their validity.
One could argue that case selection is not a major problem because the author emphasizes that the book seeks to develop and explicate, rather than finally test, theoretical claims. As he writes, “I suggest that this nuanced and comprehensive approach to key episodes has explanatory value in that it serves both to isolate the relative contributions shaping the outcome of the case and to explicate the process by which these elements emerged and evolved in their various permutations” (p. 14).
Pinaire does make a strong case against an attitudinalist explanation for Court decision making. However, it is difficult to sustain useful generalizations regarding the development of electoral speech law from his analysis because each case is unique in terms of the primary conceptual constituents, rhetorical modes, and cognitive contours in play. Indeed, he maintains, “Obviously every case has its own unique facts; and certainly precedent plays an important role, as do judicial politics, doctrine and so on. But no single contribution can satisfactorily explain the variance in outcomes and orientation within this universe of cases, given its distinct nexus of free speech and electoral process values, assumptions, and directives” (p. 226). Yet if each case is an island unto itself, and if the framing possibilities presented to justices are so wide, does this mean that there are no factors, whether internal or external to the Court, that can explain the development of doctrine? At this point it would appear that, for Pinaire, complexity and serendipity substitute for causality.
In addition, the author's findings (and their implications) are underanalyzed. For example, a chart is presented of the majority, concurring, and dissenting opinions by all Supreme Court justices in the 39 electoral speech cases since 1937. The compilation includes the applicability of each justice's conceptual and rhetorical mode to the specific opinion in question. The ratio of nonapplicable rhetorics to nonapplicable concepts is higher for some justices (Hugo Black, William Douglas, William Joseph Brennan, Jr., Potter Stewart, Thurgood Marshall, and Harold Blackmun) than for other justices (Sandra Day O'Connor, Antonin Scalia, David Souter, Clarence Thomas, Stephen Breyer, and Ruth Bader Ginsburg). Most of the high-ratio justices began on the Court in the 1950s and 1960s, and most of the low-ratio justices came to the Court in the 1980s or later. Yet Pinaire offers no analysis of the reasons why these ratios may have changed over time, and thus fails to address whether the rhetorical styles used by justices are historically time sensitive.
At the same time, while Pinaire has overstated the degree to which there is a lack of coherence in the development of constitutional law, his book represents an important contribution to the study of judicial politics. Presenting a thorough discussion of important cases and of the way in which they indicate some of the major choices available to justices as they make decisions, it underscores the importance of framing in Supreme Court decision making and the need for scholars to continue to study such framing processes.
