The Federalist Society

Free Speech and the 1995-96 Term: A Mixed Message

Free Speech & Election Law Practice Group Newsletter - Volume 1, Issue 1, Fall 1996

December 1, 1996

Allison R. 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 Committee (1989).

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 the dissenters.

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 Court.

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.


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