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Campaign Finance Rules in Student Government:

George Will condemns the Ninth Circuit's decision in Flint v. Dennison:

Perhaps the [University of Montana] noticed the praise that speech rationers in Washington receive when, in the name of combating corruption or the appearance thereof, they regulate, as with the McCain-Feingold campaign finance law, the timing, quantity and content of political speech. In any case, the university has a rule that limits candidates for student government offices to spending a maximum of $100 when campaigning among the university's 10,000 students....

[T]he reliably liberal and frequently reversed U.S. Court of Appeals for the 9th Circuit ... ruled against [a student who was challenging the rule], arguing that the university's limits on political speech are reasonably related to two permissible institutional objectives — providing "student candidates a valuable educational experience" and maintaining the election process "as an educational tool, rather than an ordinary political exercise." Two things were unexplained: What is the nifty educational value of an election process that is not an ordinary political process? And: How does severely limiting political speech serve "a valuable educational experience"?

Anyway, last summer the Supreme Court, while upholding the right of a high school to restrict speech advocating the use of illegal drugs, stressed that students' rights are greatest with respect to political speech and ideological speech. And Justice Sam Alito, joined by Justice Anthony Kennedy, stressed that the ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."

Courts have spun a complex tangle of law distinguishing degrees of permissible regulation of speech depending on which kind of "forum" it occurs in — a "limited public forum," a "designated public forum," even a "metaphysical" forum (it is not physical). In this case, the forum is neither mysterious nor small nor the university's property: The $100 limit covered an individual's political advocacy not just on campus but on public sidewalks and streets throughout Missoula, where many students live.

If the Supreme Court takes [the student's] appeal [which is the news hook for the op-ed -EV], it will see that the University of Montana is indeed teaching students a lesson about politics — the pernicious lesson that politics should be conducted under tight restrictions on advocacy. The university is preventing students from learning such essential civic skills as how to raise and allocate political money for advertising and organizing. Thus do the grossly anti-constitutional premises of McCain-Feingold seep through society, poisoning the practice of democracy at all levels.

Will's argument strikes me as unsound, for reasons I mentioned when the case came out. The Ninth Circuit was right to hold that, because student government and student elections are university functions — whether or not the campaign posters are put up outside the university, the election itself is a university function — they should be treated as limited fora. The test is therefore viewpoint-neutrality (clear here) plus reasonableness, and the rules are reasonable, for the reasons the court gives:

The evidence before us clearly shows that the University views the spending limitation as vital to maintain the character of ASUM and its election process as an educational tool, rather than an ordinary political exercise....

We find that the spending limits reasonably serve this pedagogical aim. ASUM exists to teach students responsible leadership and behavior. Imposing limits on candidate spending requires student candidates to focus on desirable qualities such as the art of persuasion, public speaking, and answering questions face-to-face with one's potential constituents. Students are forced to campaign personally, wearing out their [shoe]-leather rather than wearing out a parent's — or an activist organization's — pocketbook. Our conclusion is supported by the declaration of Gale Price, former ASUM President:

Unlimited spending in ASUM elections also would change the nature of the election process as a learning experience. The spending limits mean that students have to figure out no-cost or low-cost ways of campaigning. They have to plan ahead to figure out their strategy, rather than just dumping a lot of money into advertising materials at the last minute. They have to make decisions about allocating their resources effectively. Without spending limits, the well-off students would not have to face these constraints or make these kinds of decisions in the course of running for ASUM.

Will's mistake, I think, lies in treating student government as tantamount to ordinary government for First Amendment purposes. In fact, a university may indeed treat student government and student government campaigns as an educational project, and may constrain students' activities within educational projects in order to make such projects fairer, or more focused on those skills that the university is trying to teach. A law school may set up a moot court program that limits the time students spend drafting or researching, or that limits outside research students may do for their briefs. A university-run debate contest may limit the debaters' ability to lobby the audience outside the context of the debate, so the debaters focus more on their in-debate performance. Likewise, a university-run election campaign may be aimed at teaching students campaign skills that involve less money rather than teaching campaign skills that involve more money.

In all these situations, the students should of course remain free to persuade classmates of whatever they please. But if they are to take part in a university-run contest, the university may properly insist that they follow the university's viewpoint-neutral rules or be ejected from the contest. Where true self-government is involved, the government may be highly limited in what speech-restrictive rules it may impose. But the First Amendment doesn't command a similar rule for educational projects, even ones that take the form of student government.

Incidentally, the author of the unanimous opinion from what Will calls the "reliably liberal" Ninth Circuit was Judge Carlos Bea, who's a quite conservative George W. Bush appointee. The other judges were Clinton appointees (Graber and Paez), but Judge Bea went along fully with them, and wrote the opinion.

PersonFromPorlock:
It's been a while since I was around a college campus, but my best recollection is that student governments collected fees, passed rules binding on the student body, imposed discipline that could do real harm for infractions of those rules and in general acted a lot more like a real government than a (social) science fair project. I'm with Will on this one.
10.25.2007 8:08pm
GD (mail):
All politics are local.
10.25.2007 8:32pm
fat tony (mail):
I'm not sure where to fall on this. It seems like a distinction should be made between public and private universities, although I don't know if that is really relevant here.


Now, to speculate:

Let's say that Bad Neighbor University ignores its responsibility to surrounding (non-student) residents. Frat house parties, noise and parking issues fester for years. (Think SDSU).

A student runs for office in part on repairing relations with the broader community. I, as a neighbor, independently fund major advertising to influence the vote. Does my spending count against the student? Can I be enjoined? Can the student coordinate with me? Can s/he even appear at a community forum where I advocate the neighborhood get behind him/her?

I don't know the answers to any of these questions, but I suspect that they are relevant to the question of the validity of the university rule.
10.25.2007 8:47pm
~aardvark (mail):
Will certainly makes an error that assumes that student government functions like a regular government, but perhaps a better analogy would be a condo association, which certainly is not subject to the same rules as federal, state or municipal governments. Will's second major mistake is in repeatedly talking about "politics" as if student politics resembles national politics. Anyone who believes this assertion clearly has not set foot on campus in at least a decade.

I'm with Eugene here that student government is a university function (and a university organization). The rules that apply are more corporate in nature than governmental. And this makes sense without an "in loco parentis" argument,, which I, generally, do not accept (and disagree with its use in Bong Hits 4 Jesus decision). Even if SCOTUS were to take the case, which I doubt, the decision likely would follow the same "in loco parentis" argument that cobbled a conservative majority in most education-related cases since the mid-80s.
10.25.2007 9:01pm
~aardvark (mail):
Wrong link to Hasen's blog, Eugene--that's a Colbert discussion. In fact, I could not fid a relevant post on his blog.
10.25.2007 9:12pm
~aardvark (mail):
OK, I found the link you might have had in mind--it's from October 2, so is not technically in response to Will.
10.25.2007 9:27pm
Connie:
Will's mistake is in going kablooey whenever campaign financing is limited.
10.25.2007 9:27pm
John (mail):
Well, these guys blew it. If they had just spent their money on advocacy T-shirts, then Tinker would have let them get through any dollar limit!

Oddly, I couldn't find a reference to Tinker in the opinion. Did I miss it somewhere?
10.25.2007 9:59pm
Eli Rabett (www):
University student governments have real power (although whether they use it wisely is another question) but those powers are in the context of university governance and rules. In that the closest analogy is a faculty senate. The analogy to a condominium board, is I think not bad. As such "instructional" value is more the case for High School student governments.
10.25.2007 10:07pm
AppSocRes (mail):
Actually, in his editorial Will lays out the several truly political (including allocating taxpayer and student funds,and legislating and enforcing campus regulations with real and serious impact on all students) that this student government does. Students elected to this student government have about as much power on campus as selectmen do in a New England town.

Furthermore, Will makes it clear in his editorial that there was a coordinated attack on this particular (conservative) student by various campus-funded (liberal) student organizations. Essentially the deck was stacked against this student's candidacy by a collaboration of liberal administrators, faculty, and student organizations. His attempt to balance things by using about $200 of his own and donated money to distribute flyers and feed campaign workers some take-out pizza was just too much of a threat to the "liberal" university administration and its student government flunkies.
10.25.2007 10:29pm
Laura S.:

those powers are in the context of university governance and rules.


This statement is tad misleading (and over-broad). For instance, at Caltech the "Student Government" is a formal corporate entity with non-profit status. In this sense, it has powers of its own right. e.g., when the school collects student dues it is acting as an agent; it lacks the power to withhold funds collected, and it lacks the power to prevent the corporation from collecting dues by some other means.

Meanwhile, the corporation's board of directors are given particular powers &rights under the faculty's bylaws. Clearly these are revocable, but regardless the corporation retains its identity as such.
10.25.2007 10:34pm
neurodoc:
A university-run debate contest may limit the debaters' ability to lobby the audience outside the context of the debate, so the debaters focus more on their in-debate performance. Likewise, a university-run election campaign may be aimed at teaching students campaign skills that involve less money rather than teaching campaign skills that involve more money.
So elections for undergraduate student government positions are not so much about "politics," that is allowing students to decide how they will go about exercising whatever power(s) has been granted them to govern their affairs, they are more about the educational experience of "pretending" to decide how they would decide if they had anything real to decide?

Such undergraduate student government elections should be seen as more analagous to "mock" UN conferences that give high school students the opportunity to role play being representatives of different countries than to "real" elections for government of the sort that students will experience in a very short time as emancipated adults?

Few people would thing it improper for a contest sponsor (e.g., a university holding a debate competition), to set rules for the contest (e.g., limit the debaters' ability to lobby the audience outside the context of the debate). So what is wrong with a university treating student government elections as they might a debate contest and limiting student campaign expenditures to a dollar amount less than many of the electorate spend on booze and other frivolities every few weeks? After all, this is a university; a university's mission is to educate; and student government can provide a meaningful educational experience, as can a variety of other extracurricular endeavors; so why should a court butt in, even if the university is a public one and there may be free speech issues?

I would not like to argue the law, least of all the relevant law in this case, against the likes of EV, but if the professor can come up with no better examples than the above (limits on law school moot court program and university-sponsored debate contest necessary to accomplish the educational purposes), I would take heart and accept the challenge. And the more I could come up with to show that the powers granted to student government officials by the university were not inconsequential (see PersonforPorlock: ...student governments collected fees, passed rules binding on the student body, imposed discipline that could do real harm for infractions of those rules and in general acted a lot more like a real government than a [social] science fair project), the more confident I would be about my chances. And I'd be happy that the school settled on so paltry a sum, $100 to reach 10,000, not enough to make copies at Kinko's of a candidate's statement for every potential voter. If my complainant was some dorm guy who was running for office against the very well-known and hugely popular football quarterback, who had every frat guy and sorority gal out there wearing out their shoe-leather on his behalf and that of their interests and the causes they championed, that too would be helpful.

When you have the law, argue the law; when you don't have the law but you have the facts, argue the facts; and when you have neither the law nor the facts, pound the table, loudly. I'm unsure about the law, and worried that EV says the Ninth clearly got it right. But unless the Supremes will take at face value the school's representation that the remarkably severe campaign spending restriction is necessary in order to protect the "learning experience," which I don't think they will, I like the appellant's facts. And I would throw in some table-pounding about the greater educational value of something more closely approaching what students will encounter after they graduate than of something more closely resembling those "mock" exercises they had experience of before they reached the university.
10.25.2007 11:04pm
NickM (mail) (www):
Non-covered entities (i.e., groups not controlled by candidates) spent far in excess of the candidate spending limit attacking one candidate. Can the university shut down their spending or penalize the candidate benefitted by their activity? If so, why aren't they doing so? If not, isn't there something grossly wrong with this system?

Nick
10.25.2007 11:46pm
Eli Rabett (www):
Laura S. points to a student government that is independent of Cal Tech. She says the school acts as an agent for the student government in collecting dues. It appears to me that both the SG and CT would have a great deal of trouble making anyone pay those dues and CT would be perfectly within its rights to kick the SG off campus under those conditions. Looks like a different animal to me, I was talking about SG that are organized under rules put forth by the university and deriving its powers from the university.

Also, CT may be one of the few places where the faculty senate established the Board, but in most places the Board is independent or state controlled.
10.26.2007 12:16am
Scruggy Dicks (mail):
"Will's mistake, I think, lies in treating student government as tantamount to ordinary government for First Amendment purposes."

God awful writing. If you're writing it, of course you think it.
10.26.2007 12:23am
Sean M:
Cal Tech may be different, but in most university contexts, the Student Government or any other student body only wields delegated power from the university. That is, the university /could/ exercise these powers all on its own, but chooses to give it to the students.

Therefore, if the administration wanted to hand pick yes men for the "student government" or even just give the body's functions over to bureaucrats, they're welcome to do so. Student democracy here is not a matter of right but privilege. There's no inherent right that students have to wield power in the university.
10.26.2007 1:25am
Eugene Volokh (www):
When someone comes up to you and asks, "Do you have the time?," do you tell him "God awful question; you obviously want to know the time, not just whether I have the time"? I assume not -- I assume you recognize that "Do you have the time?" is an idiom that quickly and politely captures a particular request.

Likewise with "I think." Precisely because it's obvious that the author thinks what he's writing, "I think" means something subtly different: It means something like "I acknowledge that I'm making a tentative statement rather than one in which I'm completely confident," or "I want to soften my disagreement by acknowledging that there's room for reasonable people to differ." You might find this idiom esthetically displeasing, but it seems to me that it's hardly "God awful."
10.26.2007 2:49am
Happyshooter:
There is no reason for anyone to have, to own, or to use political knowledge or opinion that is not University approved.
10.26.2007 10:16am
TSW:
~aardvark,

I agree about the "in loco parentis" argument. How is it even plausible? If a school stands in the parents' place, then the school can't have any more authority than the parents themselves. But parental authority terminates at age 18, and university students are almost all over that age. So, if parents don't retain any legal authority over adult college students, how could the college possibly derive any extra authority by standing in loco parentis?
10.26.2007 11:23am
Stephen F. (mail) (www):
Can't we just dissolve all student "government" associations and be done with it? They're mostly filled with a bunch of twits who think God and country should listen to their every utterance because they start them off with "whereas." Abolish mandatory student fees altogether. If the school doesn't want to do that, then let the individual students decide which groups/activities will receive what share of their $100 student fee allocation. Fees unallocated at the end of the year can then be disbursed in proportion to the official student org membership rolls.

I'm currently in law school, and would emphatically include law school student governments in the above.
10.26.2007 11:27am
Patrick too (mail):
I think that the student government in question actually probably functions fairly similarly to ordinary government. According to its webpage, the student government receives funds from university activity fees (totaling approximately $500,000) and distributes that money to student groups.

http://www.umt.edu/asum/about.htm (not sure how to post hyperlinks).

If this student government is similar to the one at my undergrad, then they probably have some degree of control over the size of the activity fee that is charged to students, a fee that is mandatory for the students to pay.

So, I would say that if the student government has the power to tax and spend, even if that power is only delegated to it from the university, that is pretty close to ordinary government functions. It may still be an education activity, but it is not analogous to something like a moot court competition.
10.26.2007 11:30am
TSW:

Can't we just dissolve all student "government" associations and be done with it?


I second this proposal. The whole thing is a complete waste of time and money. I think most students trust the administration far more than the Tracy Flick types involved in student government.
10.26.2007 11:53am
c.l. ball:
So what we actually have is a challenge to the "reasonableness" claim. Student government at the college level is not just educational, it involves allocation of funds affecting campus life. Moot court or debates are not proper analogies here. Does any school ban spending more than a certain amount as part of moot court or debate prep -- e.g., a moot team man not pay for more than $x in pizza or drinks as part of your moot court prep?

I had a similar fight over violation of a spending ban at Tufts, which offered the same silly justification as UMT. The irony is that these bans made writing anything impossible or very hard. We formed a party and posted flyers that did not mention any candidate by name. The elections board disqualified all the candidates affiliated with the party.

These bans encouraged only oral communication. The 'lesson' was you don't have to be accountable in an effective way. I'm not sure how UMT or other schools regulate blogs or emails, which were in their infancy when I was in college. Would a student's copy of Dreamweaver or other software count as a campaign expenditure? How would the school regulate this?

Also, these bans could encourage dirty tricks. I had thought about putting up flyers for candidates as a prank. I was not one, and the spending ban applied to candidates, not any student. The ban would have had the effect of forcing the elections board to disqualify the candidates even though I had put up the flyers -- how would the students prove they did not put them up?
10.26.2007 11:55am
Patrick too (mail):
"What is the nifty educational value of an election process that is not an ordinary political process? And: How does severely limiting political speech serve "a valuable educational experience"?

I would say the answer to both questions is quite a bit, and most of it is probably not good to learn (but very valuable).

When I was in undergrad I was fairly connected with the student government from serving on a funding board and latter investigating election fraud and I can tell you the students in government learned a hell of lot about how to avoid campaign finance laws.

Our campaign finance rules were set at several thousand dollars for a ticketed campaign. A ticket usually consisting of four officers running together as a along with a slate of affiliated delegates for the student congress.

The campaign finance rules were put into place after campaigns had started to spend over $10,000 to campaign and students were pawning jewelery to raise money.

The main result of the finance limits was to force the students to get creative to avoid them (and penalize outsider candidates who did not understand the rules and so followed them). The ways the campaigns would get around the spending limits included the following:

Having a separate campaign manager who kept two sets of campaign books, one official set to turn in and the unofficial set that had the real numbers. If any spending violations were discovered after the election the campaign manager would take the fall, but could not actually be punished since he/she was not actually on the ticket, and thus were not members of the student government and subject to their rules. The actual members of the ticket would claim ignorance of the whole sordid affair.

Another favorite tactic was to have outside student groups run campaign ads attacking the opposition, like was done at Montana. Since the student groups were not running for election, they could spend what they wanted.

Tickets would also utilize siblings or friends who were not university students to undermine the opposition campaign by vandalizing or removing their posters. Since they were not university students, and the town police usually left these matters to the campus, nothing could be done to these individuals.

Tickets would also promise grants to student groups in exchange for support. The student government controlled $500,000 or so (this was ten years ago). So, for example, tickets would informally promise the large student groups a $6,000 block grant for their support or promise to fund a specific event they hosted. Since most students did not vote in the elections (10% turnout or so), getting a few motivated students groups to turn out their members would sway the election.

The student government officers also received a stipend for being officers. One year, the officers of one ticket agreed to pool their stipends into an executive fund and use it to award grants to student groups that would not have to follow the funding procedure or guidelines. These grants could be given to student groups in excess of what the normal limits were and could be used for things the regular grants couldn't since it was technically the executives own money even if it was given out in the name of the student government.

There was also fairly rampant voter fraud in the student government elections.

I heard that the Watergate/CREEP guys learned their dirty tactics in college, and from what I have seem that is probably true. So, to answer George Will, there is a lot that can learned from running a student campaign under tight spending limits, especially with respect to learning how to avoid those limits in less than ethical ways.
10.26.2007 11:59am
Laura S.:
I suspect that the implied educational value of these rules is to create the impression that political spending restraints are natural and ordinary.
10.26.2007 12:07pm
TFKW:
I think the real reason for these rules is to limit the number of ads that other students have to be exposed to, as well as to conserve paper and make clean-up easier. :P
10.26.2007 12:12pm
Archon (mail):
I believe the underlying legal issue is more important. Our university student free speech rights coextensive with those of the outside world? Older Supreme Court cases such as Healy v. James and Papish v. Board of Curators highly suggest that they are the same, whereas newer lower court cases such as Hosty v. Carter blur that distinction.

There seems to be an ongoing debate in the lower courts on what free speech standard applies to colleges. Does the Tinker substantial disruption test with its exceptions in Hazelwood (school sponsored speech), Fraser (offensive speech), and now Morse (speech advocating drug use)? Some higher standard, but not quite coextension with the outside world? Or does the same standard apply?
10.26.2007 12:15pm
NaG (mail):
From George Will's article: "During the campaign, a large number of posters critical of [Flint] appeared around the campus. He believes they were placed by the University of Montana College Democrats and the liberal Montana Public Interest Research Group. Neither group is subject to the expenditure limits applied to candidates. To counter this opposition, Flint spent $214.69 of his own money on professionally made posters and pizza for his campaign workers."

Sounds like he should have started a PAC. As much as I sympathize with Flint and think the rule is silly, the lesson here is to do what everyone else does -- launder the money through exempt front organizations. Enough of that going on, and maybe college kids will learn through personal experience how limits on campaign spending are a complete waste of everyone's time.
10.26.2007 12:21pm
fat tony (mail):
"I assume not -- I assume you recognize that "Do you have the time?" is an idiom that quickly and politely captures a particular request."

Professor Volokh: Of course you assume it, you wrote it. ;)

As to the topic, several commenters have analogized student governments to condo association boards. Question: Do homeowner associations have the power to limit campaign spending? I have never seen that in any HOA documents, but I imagine some might have tried this. (Of course I imagine it--I wrote it)
10.26.2007 1:19pm
Eli Rabett (www):
Universities are corporations with bylaws. Student governments are established under those bylaws. Has nothing to do with "rights and privileges" and a bunch of other preteniousness. And yeah, University Presidents and Deans can pick their student government. Ain't you ever seen Animal House?
10.26.2007 3:08pm