Allison Rittenhouse Hayward*
While the Supreme Court's 1995 Term will probably be remembered
for its controversial opinions on issues of sexual discrimination
and sexual preference (i.e. VMI and Romer), its record on free speech
and election law questions deserves a close look. The Court exhibited
a troubling reluctance to entertain constitutional implications
of laws abridging the First Amendment rights of political parties.
The implication here may be that partisanship is a form of "corruption"
requiring regulation. Given the prosecutorial persistence of the
Federal Election Commission, one can only hope the Court soon reaffirms
that the expression of opinions and views by a political party,
or any other partisan political entity, is "core" First
Amendment activity. Eu v. San Francisco County Democratic Central
In Morse v. Republican Party of Virginia, Justice Stevens pronounced
that state parties in certain states must obtain preclearance from
the Justice Department before changing convention procedures. Here,
the Party's transgression was in failing to clear a new convention
registration fee. Under 28 C.F.R. 51.7, the Voting Rights Act preclearance
requirement applies to parties performing a "public electoral
function" "under power explicitly or implicitly granted
by a covered jurisdiction."
Justice Stevens concluded that the regulation applied to the party,
because authority to nominate a contender was a power delegated
by the State of Virginia. Wrote Stevens: "The major parties
have no inherent right to decide who may appear on the ballot. That
is a privilege conferred by Virginia law, not natural law."
(So much for popular sovereignty.) Justices Breyer, O'Connor and
Souter concurred, reflecting that if the Voting Rights Act were
interpreted not to apply to parties, that "would have opened
a loophole in the statute the size of a mountain."
The majority's willingness to see this case as a simple issue of
regulatory construction, without subjecting the regulation to a
robust strict scrutiny test, is not consistent with the Court's
protection of party's rights in previous cases. See, e.g., Eu; Democratic
Party of the United States v. Wisconsin (1981). As Justices Scalia
and Thomas wrote in dissent, this case is about much more than regulatory
interpretation. The interference by the government in issues of
internal political party governance implicates fundamental First
Amendment rights. Furthermore, preclearance involves the granddaddy
of all First Amendment burdens, the prior restraint. At the very
least, the dissenters argued, the law should be construed to avoid
this constitutional implication. (Justice Kennedy, joined by Chief
Justice Rehnquist, also dissented, concluding that the Voting Rights
Act did not provide a private right of action here.)
Political parties fared somewhat better in Colorado Republican
Federal Campaign Comm. v. Federal Election Comm. This case presented
a First Amendment challenge to the FEC's allegation that the Colorado
Republican Party's purchase of an advertisement criticizing Senator
Tim Wirth's record, months before any election and before there
was a Republican challenger in the race, was a de jure "coordinated"
expenditure -- that is, an expenditure coordinated between the party
and the candidate. Under the FEC's theory, this expenditure was
thus illegal, as the Colorado GOP had already delegated all of its
spending capacity to the national Republican Party. Justice Breyer,
writing for himself and Justice O'Connor and Souter, rejected the
FEC's position, holding that there was no evidence that the expenditure
at issue was in fact coordinated. The plurality also held that the
First Amendment prohibits the FEC from presuming that such party
expenditures are coordinated.
Concurring Justices Kennedy, Rehnquist, Scalia, and Thomas called
for a rethinking of the law in this area, since limitations on a
party's ability to spend money in coordination with a candidate
stifles "the ability of the party to do what it exists to do."
Justice Thomas observed that the distinction between contributions
and expenditures, recognized in Buckley v. Valeo (1976), "lacks
constitutional significance, and I would not adhere to it."
Justices Stevens and Ginsburg dissented, fearing the "corrupting"
influence of parties on candidates, advocating the leveling of the
campaign finance field, and deferring to the expertise of Congress
in this area. The notion that officeholders who thrive under the
status quo might seek to perpetuate that system did not occur to
Colorado and Morse have more in common than it might appear. In
both cases, the Court paid unusually little regard for the First
Amendment liberties of political parties. In Colorado, it did so
by rendering judgment on the most limited basis presented. Colorado
presented a host of important issues apart from the party expenditure
rule, such as whether the advertisement at issue was express advocacy,
or whether restrictions on party activities (coordinated or not)
are all unconstitutional, given the fact that the purpose of a political
party is to engage in politics, and the scarce evidence that the
government interest in preventing corruption from these entities
is sufficient to withstand strict scrutiny. These were the truly
interesting unanswered question in the Colorado case, which the
Court as a prudential matter declined to address.
The Court was far less reluctant to protect the political speech
activities of public contractors. In O'Hare Truck Service v. City
of Northlake and Board of County Commissioners v. Umbehr, the Court
came to the defense of a public contractor's right to oppose or
criticize the contracting government. In O'Hare, a tow-truck driver
was removed from a rotation list from which the police department
obtained towing services, while in Umbehr, the at-will contractor
was denied "automatic" renewal.
The Court determined that disappointing a contractor's mere expectation
of future work, for political reasons, was an unconstitutional condition
upon that contractor's First Amendment rights. In O'Hare, the Court
extended the holding of Elrod v. Burns (1976) -- public employees
may not be discharged because of political affiliation -- to independent
contractors. In Umbehr, the Court applied the balancing test used
in Pickering v. Board of Ed. of Township High School Dist. (1968)
to determine whether a contractor could be discharged for particular
expressions of opinion. In both cases, the Court remanded the case
to the district court for it to apply the proper test.
In his dissent to these opinions, Scalia observed that both federal
and state jurisdictions have enacted a complex regime of regulations
governing public contracting. What restrictions local
governments should observe when choosing with whom to do business,
or how that business is solicited, are proper subjects for state
and local regulation, not constitutional pronouncement from the
Given that O'Hare and Umbehr aggressively apply the Court's "unconstitutional
conditions" jurisprudence, under which the government cannot
"deny a benefit to a person on a basis that infringes his constitutionally
protected . . . freedom of speech," Perry v. Sindermann (1972),
one might wonder whether the speech rights of political parties
would be better respected if they received governmental benefits.
The Court also showed some vigilance over the protection of commercial
speech, in 44 Liquormart Inc. v. State of Rhode Island. With Justice
Stevens writing for much of the Court, the Justices concluded that
a Rhode Island law prohibiting liquor vendors from advertising prices
of alcoholic beverages was unconstitutional. While the Justices
disagreed over which level of scrutiny applies to such restrictions
on commercial speech, they nevertheless concluded that this ban
on advertising of truthful consumer information was not justified
by a state interest sufficient to save it from unconstitutionality.
A lingering issue which may be more prominent in the future is
whether the state can require political actors to disclose expenditures
for activities that fall "outside the bounds" of federal
election regulations. For example, several political observers have
suggested that a better approach to the regulation of federal campaigns
would be to eliminate contribution limits, and those expenditure
limits that still apply to parties and certain candidates. Instead,
federal law could require additional disclosure, including disclosure
of the funds raised and spent for "issue advocacy" that
refers to a candidate.
"Issue advocacy" activities do not constitute "express
advocacy," and so are not currently reportable. For this reform
to pass constitutional muster, the government would have to show
a sufficient state interest in providing voters with information
about the backers of such messages (say a month from election day).
None of this Term's cases address this issue. In McIntyre v. Ohio
Election Comm'n (1995), however, the Court held that Ohio disclosure
laws could not apply to a person who anonymously distributed flyers
expressing opposition to a school levy at a meeting discussing the
levy. That opinion reversed the Ohio Supreme Court's holding that
the disclosure burden was "reasonable" and "nondiscriminatory"
and, therefore, constitutional.
Notably, the Ohio decision was cited favorably by the California
Supreme Court in Griset v. Fair Political Practices Comm'n, which
upheld the constitutionality of a California law requiring candidates
and committees supporting candidates or ballot measures to print
their name and address on the outside of mailings of over 200 pieces.
The California court might have articulated a defensible rule to
distinguish the candidate mailing in Griset from the anonymous handouts
in McIntyre. Instead, the rhetoric in Griset is troubling, and one
can hope that its line of analysis is not taken up in other states.
Among a variety of ill-considered comments, the California Supreme
Court in Griset wrote that the defendant, a candidate for Santa
Ana City Council "does not claim, nor could he, that a candidate
for public office has a legitimate interest in expressing [his]
views anonymously." Also, in a distortion of Buckley's notion
that "money is speech" and hence deserves First Amendment
protection, the California Court equated freedom to speak with the
freedom to spend money on mailers. It thus concluded that the incidental
expense imposed by a disclosure requirement did not pose a burden
on protected liberties.
While people may disagree with this proposition, it is clear as
a matter of First Amendment law that McIntyre and its civil rights-era
predecessors have a great deal to say about the right to speak anonymously,
and do not necessarily exclude candidates from First Amendment protection.
This unsettled area of the law may flare up if disclosure-only reforms
gain currency as an alternative to command-and-control contribution
and expenditure limits.
*Allison Rittenhouse Hayward is an associate at Wiley, Rein &
Fielding in Washington, DC. The views expressed in this article
do not necessarily reflect the views of that firm or its clients.