The legal status of
parties and interest groups
The First Amendment
• Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for a
redress of grievances.
Recognizing that no rights are
absolute, in what ways should
Congress be able to restrict the
rights of assembly and petition in
order to restrain some of the
problems parties and interest
groups pose to the political
system?
Parties
• How have parties been treated by the courts?
• As public entities in their performance of
electoral functions
Smith v. Allwright
• Previous rulings had held:
– “Since the right to organize and maintain a
political party is one guaranteed by the Bill of
Rights of this state, it necessarily follows that
every privilege essential or reasonably
appropriate to the exercise of that right is
likewise guaranteed, including, of course, the
privilege of determining the policies of the
party and its membership.”
• As cited in Smith v. Allwright, p. 2
Smith v. Allwright
• “Primary elections are conducted by the party under
state authority…No name which has not been certified
[by the party] may appear upon the ballot for the general
election as a candidate of a political party. We think that
this…system for the selection of party nominees for
inclusion on the general election ballot makes the party
which is required to follow these legislative directions an
agency of the state in so far as it determines the
participants in a primary election. [ So] the well
established principle of the Fifteenth amendment,
forbidding abridgement by a state of a citizen’s right to
vote [applies here].”
McConnell v. FEC
• “The actual or apparent corruption of federal candidates
and officeholders constitutes a sufficiently important
interest to justify contribution limits. …The idea that large
contributions to a national party can corrupt or create the
appearance of corruption of federal candidates and
officeholders is neither novel nor implausible.”
• “The record demonstrates that the close relationship
between federal officeholders and parties…have made
all large soft money contributions to national parties
suspect, regardless of how those funds are ultimately
used.
McConnell v. FEC
• “The government’s strong interests in preventing
corruption, and particularly its appearance, are
thus sufficient to justify subjecting all donations
to national parties to FECA’s source, amount,
and disclosure limitations.”
Parties
• How have parties been treated by the courts?
• As public entities in their performance of
electoral functions
• Smith v. Allwright (1944)
• McConnell v. FEC (2003)
• As private associations
Tashjian vs. Republican Party of
Connecticut (1986)
• State has a closed primary law.
• Law conflicts with new Republican party
rule allowing independents to participate in
Republican primaries.
Tashjian vs. Republican Party of
Connecticut (1986)
“The freedom of association protected by [the First and
Fourteenth] amendments includes partisan political
organization. [This Connecticut law] places limits upon
the group of registered voters whom the party may invite
to participate in the basic function of selecting the party’s
candidates. The state this limits the party’s associational
opportunities at the critical juncture at which the appeal
to common principles may be translated into concerted
action, and hence to political power in the community.
The fact that the State has the power to regulate the
time, place, and manner of elections does not justify,
without more, the abridgment of fundamental rights, such
as the right to vote or, as here, the freedom of political
association.”
California Democratic Party v. Jones
(2000)
• California voters approve a “blanket
primary”
– Each voter’s ballot lists every candidate
regardless of party affiliation, allows voter to
choose freely among them.
• State party rules prohibit nonmembers
from voting in party’s primary
California Democratic Party v. Jones
(2000)
• “In no area is the political association’s right to exclude
more important than in its candidate-selection process.
That process often determines the party’s positions on
significant public policy issues, and it is the nominee who
is the party’s ambassador charged with winning the
general electorate over to its views. The First
Amendment reserves a special place, and accords a
special protection to that process, because the moment
of choosing the party’s nominee is the crucial juncture at
which the appeal to common principles may be
translated into concerted action, and hence to political
power.”
California Democratic Party v. Jones
(2000)
• “None of the respondents’ proffered state
interests—producing elected officials who better
represent the electorate, expanding candidate
debate beyond the scope of partisan concerns,
ensuring that disenfranchised persons enjoy the
right to an effective vote, promoting fairness,
affording voters greater choice, increasing voter
participation, and protecting privacy—is a
compelling interest justifying California’s
intrusion into the party’s associational rights.”
California Democratic Party v. Jones
(2000)
• Stevens’ Dissent:
• “Primary elections, unlike most ‘party affairs,’ are
state action. The protections that the First
Amendment affords to the ‘internal processes’ of
a party do not encompass a right to exclude
nonmembers from voting in a state-required,
state-financed primary election.”
• “While state rules abridging participation in its
elections should be closely scrutinized, the First
Amendment does not inhibit the state from
acting to broaden voter access to state-run,
state-financed elections.”
How have Interest Groups
been treated by the courts?
As deserving of robust First
Amendment protection.
NAACP v. Alabama (1958)
• We think … order… must be regarded as entailing the likelihood of a
substantial restraint upon the exercise by petitioner's members of
their right to freedom of association. Petitioner has made an
uncontroverted showing that on past occasions revelation of the
identity of its rank-and-file members has exposed these members to
economic reprisal, loss of employment, threat of physical coercion,
and other manifestations of public hostility. Under these
circumstances, we think it apparent that compelled disclosure of
petitioner's Alabama membership is likely to affect adversely the
ability of petitioner and its members to pursue their collective effort
to foster beliefs which they admittedly have the right to advocate, in
that it may induce members to withdraw from the Association and
dissuade others from joining it because of fear of exposure of their
beliefs shown through their associations and of the consequences of
this exposure.
NAACP v. Alabama (1958)
• The State Attorney General presented at length, under
examination by petitioner, the State's reason for
requesting the membership lists. The exclusive purpose
was to determine whether petitioner was conducting
intrastate business in violation of the Alabama foreign
corporation registration statute, and the membership lists
were expected to help resolve this question. … Without
intimating the slightest view upon the merits of these
issues, we are unable to perceive that the disclosure of
the names of petitioner's rank-and-file members has a
substantial bearing on either of them.
Boy Scouts of America v. Dale
(2000)
• A state requirement that the Boy Scouts retain Dale would
significantly burden the organization’s right to oppose or disfavor
homosexual conduct. The state interests embodied in New Jersey’s
public accommodations law do not justify such a severe intrusion on
the freedom of expressive association. In so ruling, the Court is not
guided by its view of whether the Boy Scouts’ teachings with respect
to homosexual conduct are right or wrong; public or judicial
disapproval of an organization’s expression does not justify the
State’s effort to compel the organization to accept members in
derogation of the organization’s expressive message. While the law
may promote all sorts of conduct in place of harmful behavior, it may
not interfere with speech for no better reason than promoting an
approved message or discouraging a disfavored one, however
enlightened either purpose may seem.
De Jonge v. Oregon, 1937
• It thus appears that, while defendant was a member of
the Communist Party, he was not indicted for
participating in its organization, or for joining it, or for
soliciting members or for distributing its literature. He
was not charged with teaching or advocating criminal
syndicalism or sabotage or any unlawful acts, either at
the meeting or elsewhere. He was accordingly deprived
of the benefit of evidence as to the orderly and lawful
conduct of the meeting and that it was not called or used
for the advocacy of criminal syndicalism or sabotage or
any unlawful action. His sole offense as charged, and for
which he was convicted and sentenced to imprisonment
for seven years, was that he had assisted in the conduct
of a public meeting, albeit otherwise lawful, which was
held under the auspices of the Communist Party.
De Jonge v. Oregon, 1937
• Consistently with the Federal Constitution, peaceable assembly for
lawful discussion cannot be made a crime. The holding of meetings
for peaceable political action cannot be proscribed. Those who
assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceable assembly are to be preserved, is not as to the auspices
under which the meeting is held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If
the persons assembling have committed crimes elsewhere, if they
have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or
other violation of valid laws. But it is a different matter when the
State, instead of prosecuting them for such offenses, seizes upon
mere participation in a peaceable assembly and a lawful public
discussion as the basis for a criminal charge.
Buckley v. Valeo
• Can’t limit Independent Expenditures
• “A restriction on the amount of money a … group can
spend on political communication during a campaign
necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached.
This is because virtually every means of communicating
ideas in today’s mass society requires the expenditure of
money…The concept that government may restrict the
speech of some elements of our society in order to
enhance the relative voice of others is wholly foreign to
the First Amendment.”
Citizens United vs. FEC