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Generals & General Elections: Legal Responses to Partisan Endorsements by Retired Military Officers

Posted by on Tuesday, May 26, 2020 in Notes, Volume 73, Volume 73, Number 4.

Retired generals and admirals of the U.S. military appear to be endorsing partisan political candidates in greater numbers, with more visibility. This Note argues that the practice represents a clear danger to civilian control over the military and weakens military effectiveness. It explains that while retirees remain subject to military jurisdiction, the existing array of statutory and regulatory restrictions on political activity cannot adequately address the problem. Neither can professional norms be expected to shore themselves up to solve it. This Note describes how political restrictions on servicemembers have evolved over time in response to novel challenges to civilian control. It illustrates that retired officers—who receive lifetime pensions and remain subject to recall—have always been a part of the civilian-control conversation. It also analogizes to judicial ethics, Hatch Act prohibitions, and postemployment business ethics restrictions on military retirees, finding several compelling state interests that could justify narrowly tailored restraints on retiree speech.

This Note ultimately offers an assortment of potential legal responses to the endorsement problem. These include modest changes that others have proposed, such as additional disclaimers, restrictions on the use of ranks and titles, and rules that would formally ostracize endorsers from events and partnerships with the active military. The Note also suggests a more radical last-ditch proposal: officers seeking promotion to general or admiral would have to agree, as a term of their employment contract at the highest ranks, to refrain from endorsing partisan candidates for eight years after retirement. Certainly, retired flag officer endorsements represent only one symptom of a larger civil-military divide in the United States. But this symptom deserves further study, and not just because of its harmful effects. It serves as a reminder that while civilian control may be a fundamental, constitutionally derived principle, it relies on measures beyond the Constitution to manifest and protect it.

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Hannah Martins Miller