POLITICAL PARTIES IN CONSTITUTIONAL LAW

"No America without democracy, no democracy without politics, no politics without parties.…" So begins Clinton Rossiter's commentary on American political parties. Nonetheless, the Supreme Court has said in Elrod v. Burns (1976) that "partisan politics bears the imprimatur only of tradition, not the Constitution." Despite the absence of constitutional reference to political parties, the Constitution has had substantial influence in shaping the two-party system and in defining the contested boundary between governmental authority and political party autonomy.

Frank Sorauf has observed that "[t]he major American political parties are in truth three-headed political giants, tripartite systems of interactions.… As a political structure they include a party organization, a party in office, and a party in the electorate.…" All three branches of political parties are defined, limited, and authorized, at least in part, by constitutional doctrine. All three are shaped in part by specific constitutional arrangements.

Two-party politics, which has persisted throughout the nation's history, began in the struggle between federalists and antifederalists over the ratification of the constitution. Provisions of the Constitution have reinforced the two-party system, especially Article II, section 1, empowering each state to select presidential electors, and the twelfth amendment, requiring an absolute majority of the electoral college or, failing that, of state delegations in the House of Representatives for election of the President. The majority rule tends to compel the coalition of disparate factions into two parties, because only the establishment of broad coalitions offers any prospect of securing the majority necessary for election of the President.

Although no constitutional rule requires that members of the House of Representatives be elected by plurality vote or from single-member districts, these understandings soon took root after ratification of the Constitution. The popular election of the United States senators mandated by the seventeenth amendment has the effect of creating single-member districts for the selection of members of that house. These constitutional practices strengthen the two-party system, requiring broad coalitions to secure a majority, the only guarantee of electoral victory under these rules.

The Constitution's provision for a federal structure of government also shapes the party system. Unlike the majority rule's incentive for factions to consolidate into two parties, the federal structure encourages wide dispersion of influence within the party ranks. Because offices and powers at the state and local levels are more accessible and often more important than those in the national government, party organizations in each state and locale grow independent of one another and are largely free from sanctions imposed by any national party organization. This dispersion of party organization is heightened by the mandate of Article I, section 1, and the Twelfth Amendment for state-by-state selection of the electors who choose the President.

States began to regulate political parties in the late eighteenth century, and these regulations became commonplace during the Progressive era. The state police power was regarded as a sufficient basis for the imposition of governmental authority upon the parties. The state-prescribed Australian ballot, antifusion legislation, and state-operated primaries were introduced at the same time as laws regulating the structure and activities of political parties. All of these were intended to curb political "bosses" and "machines."

By the beginning of world war ii, the constitutions of seventeen states and the statutes in virtually all states referred to political parties—conferring rights on them, regulating their activities, or both. State regulatory schemes went beyond prescribing the methods by which parties would select nominees for office and the qualifications of parties for places on the ballot. Many states also regulated the selection and composition of district, county, and state political party committees, the authority and duties of those committees, and the rules for their operation.

Whether the national government has similar authority to regulate political parties has seldom been tested, for Congress has not chosen to enact legislation recognizing party associations or regulating their structure and activities. Any such federal power could, however, be thought to derive from several constitutional sources.

Article IV, section 1, of the Constitution grants Congress a broad power to regulate the time, place, and manner of electing senators and representatives. In united states v. classic (1941) the Supreme Court construed this provision to allow Congress to regulate individual conduct and also to modify those state regulations of federal elections that the Constitution authorizes. The Court has also cited the necessary and proper clause as an additional source of congressional authority over federal elections, and in ex parte yarbrough (1884) it declared that Congress has the power, as an attribute of republican government, to pass laws governing federal elections, especially to protect them against fraud, violence, and other practices that undermine their integrity. And, although no constitutional provision explicitly extends the authority of Congress to regulate presidential elections, the Court affirmed this power in Burroughs v. United States (1934), oregon v. mitchell (1970), and buckley v. valeo (1976).

Congressional power to regulate elections does not necessarily imply power to regulate political parties. But the Supreme Court has taken a major step in that direction by bringing federal primary elections, which are principally a party process for selecting candidates, within the ambit of Article I. In United States v. Classic the Justices held that: "Where state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary is … included in the right [to vote in congressional elections] protected by Article I, sec. 2." This right to vote in congressional elections may be protected by Congress under Article I, section 4. Subsequently, the Court has treated Classic as recognizing a general congressional power to regulate primary elections for federal offices.

A wholly distinct doctrinal technique for imposing judicial limits upon party affairs, which may extend congressional legislative authority to party activities, grew out of the White Primary Cases. In nixon v. herndon (1927) the Supreme Court held that because the sponsorship of a primary election by a state was state action subject to the fourteenth amendment, the exclusion of black voters from such a primary was unconstitutional. Even when the state authorized the party executive committee to determine party membership, nixon v. condon (1932) held the ensuing primary to constitute state action. State authorization of a ballot position for candidates selected in party-sponsored primaries, without any state-prescribed primary rules or state operation of the primary, was held in smith v. allwright (1944) to be state action in violation of the fifteenth amendment.

Many commentators and judges regard terry v. adams (1953)—the last of the White Primary Cases—as extending constitutional limitation to party activities beyond primary elections. In Terry the Supreme Court held that the Fifteenth Amendment prohibited a local group, the Jaybird Democratic Association, from excluding blacks from a preprimary straw vote, paid for and operated exclusively by the association, to endorse candidates to run in the statutorily recognized Democratic party primary. The four-member plurality of the Terry Court concluded that the Jaybirds were part of the Democratic party. Only three Justices said that the Jaybird straw vote was limited by the Fifteenth Amendment because it was "an integral part, indeed the only effective part, of the electoral process."

Nonetheless, most judicial decisions now treat party organizations as state-affiliated agencies. State laws often closely prescribe the structure, organization, and duties of local, district, and state party units. Hence, the lower federal court cases have held that the equal protection clause governs the selection and apportionment of members of local, district, and state party committees and conventions. Several decisions of the Court of Appeals for the District of Columbia have also applied the Fourteenth Amendment to national party conventions, because those conventions are integral parts of the process of selecting the President. But in at least one case that court suggested that the developing law of "state action," as defined by the Supreme Court, had excluded party conventions from the scope of the Fourteenth Amendment.

In defining the scope of the Fourteenth and Fifteenth Amendments, and thus the scope of congressional power to enforce those amendments, several appellate courts have distinguished between parties' candidate selection activities and their management of "internal affairs." Ronald Rotunda has suggested "a functional standard" in which "all integral steps in an election for public office are public functions and therefore state action subject to some judicial scrutiny." The functional distinction, though plausible and attractive, is difficult to apply in practice. Party activists often seek to influence the selection of party candidates, presumably to assure that party nominees reflect the policies of the party organization. Working through party organizations, they endorse candidates in the primary, expend money on their behalf, and mobilize primary voters for them. These activities could easily be construed as part of the selection of candidates; yet it seems unlikely that they fall within the reach of the prohibitions of the Fourteenth and Fifteenth Amendments—and thus the reach of Congress's power to enforce those amendments.

One further source of governmental authority to regulate political parties is the power to attach restrictions to special statuses or benefits accorded to candidates and parties under federal and state laws. Generally, the Supreme Court has rejected legislation that requires the surrender of constitutional rights as a condition for attaining a governmental benefit. (See unconstitutional conditions.) Although it recognized in Buckley v. Valeo (1976) that political expenditures constitute protected speech under the first amendment, the Supreme Court nonetheless upheld the presidential election campaign fund act's limits on political party expenditures for nomination conventions and on candidate spending in presidential nomination and general election campaigns subsidized by federal money. This decision has broad implications for state regulatory authority in the thirteen states that provide public grants to candidates and political parties.

In virtually all states political parties receive automatic access to the ballot if they obtain a certain percentage of votes cast in a prior election. And in every state the ballot carries the party label to identify the candidates nominated by qualified political parties. These state benefits to political parties may justify state regulation of the structure, organization, and operation of political parties. Moreover, these benefits may strengthen claims that party activities constitute state action, thus bringing them within the ambit of both judicial and congressional authority under the Civil War amendments.

Although the Constitution has been interpreted to allow government to extend special recognition to political parties, especially major parties, governmental assistance to parties is circumscribed by constitutional limits. In Buckley v. Valeo the Supreme Court not only held that financial subventions were within congressional authority under the general welfare clause; it also sustained definitions of eligibility that tended to reinforce the position of the major parties. Full public financing is available only to a party whose presidential candidate in the previous election received at least 25 percent of the popular vote. Some minor parties and candidates are eligible for lesser funding; others are not.

The party, seen as part of the electorate, is recognized by state eligibility requirements for voter participation in primary elections. Connecticut's closed party primary survived the challenge that it abridged independent voters' right to vote and freedom of association. A lower federal court held that the state law validly served "to protect party members from 'intrusion by those with adverse political principles,' and to preserve the integrity of the electoral process," and the Supreme Court affirmed in Nader v. Schaffer (1976). The courts have not decided whether political parties' freedom of association protects them from intrusion into the nominating process by persons who are not party members.

State authority to protect the integrity of party membership rolls is limited by the Fourteenth Amendment. A voter's freedom to associate with a party is apparently abridged if state-mandated enrollment rules unduly delay participation in a party primary. In Kusper v. Pontikes (1973) the Supreme Court invalidated a law requiring party enrollment twenty-three months in advance of a primary in which the voter wished to participate.

States also have power to protect the integrity of party nominating procedures by limiting independent or third-party candidacies by those who have been affiliated with another party. Hence, in Storer v. Brown (1974) the Supreme Court sustained a state law requiring an independent or new-party candidate to disaffiliate from his prior party at least a year in advance of his new party's primary. And in American Party of Texas v. White (1974) the Justices upheld a state law prohibiting persons who had voted in a party's most recent primary from signing petitions to qualify another party's candidate or an independent candidate for the ballot. The Court has also intimated that it would sustain "sore loser" statutes which prohibit a candidate who has participated in a party's nominating contest from subsequently qualifying as an independent candidate or opposition party aspirant in the same election. But in the same case, Anderson v. Celebrezze (1983), the Court held that states may not protect established parties by setting early filing deadlines that bar independent candidates arising from opposition to the platforms or candidates of major parties, when those become known.

The Constitution has been interpreted to allow preferred ballot access to established parties. Hence, in Jennes v. Fortson (1971) the Court sustained a statute giving automatic ballot access to parties that had obtained twenty percent or more of the vote in the prior election, while requiring others to gain ballot placement by obtaining petition signatures equivalent to five percent of those eligible to vote in the prior election. Nonetheless, in Williams v. Rhodes (1968) the Court rejected statutory schemes so complex or burdensome as to make it virtually impossible for any but the Democratic and Republican parties to obtain ballot access.

Promotion of political parties through minimal restrictions on the First Amendment right to associate and on the right to vote are justified by a wide array of governmental interests. The Supreme Court has said that states may protect political parties in order to assure "stability of the political system," to avoid confusion or deception, to "avoid frivolous or fraudulent candidacies prompted by short-range political goals, pique, or personal quarrel." Congress, in providing public financing of parties and candidates, can seek to avoid funding hopeless candidacies with large sums of public money or fostering proliferation of splinter parties. In the aggregate these justifications represent a constitutional hospitality toward political parties, at least when legislators grant them special statuses.

Several developments in constitutional doctrine suggest that long-established governmental regulation of political parties may now stand on treacherous ground. The 1950s saw the emergence of an independent First Amendment freedom of association, principally in cases involving dissident or oppressed groups, especially the Communist party. As early as 1952, in Ray v. Blair, the Supreme Court sustained a Democratic party requirement that candidates for presidential elector swear to vote for the presidential and vice-presidential candidates selected by the national Democratic party. Such an oath "protects a party from intrusion by those with adverse political principles." But until the 1970s there was little other judicial recognition that the freedom of association might secure rights of major political parties against governmental regulation.

inCousins v. Wigoda (1975) and Democratic Party v. LaFollette (1981) the Supreme Court specifically announced that the First Amendment protected national party conventions in their establishment of rules for the selection of delegates, even in the face of contrary state laws or local party practices. In both cases, the Supreme Court announced that "the National Democratic party and its adherents enjoy a constitutionally protected right of political association." Both cases also applied the traditional standard in First Amendment cases; only a compelling state interest warranted abridgment of the "rights of association" of the national Democratic party.

inLaFollette the Court concluded that Article II, section 1, of the Constitution, which empowers each state to "appoint" presidential electors in the manner directed by the legislature, bears such a "remote and tenuous" connection to "the means by which political party members in a State associate to elect delegates to party nominating conventions … as to be wholly without constitutional significance." This conclusion sets aside one possible constitutional basis for state power to regulate party activities in selecting presidential nominees. Together, Cousins and LaFollette signal judicial reluctance to sweep every stage in the candidate selection process, especially those conducted by the parties themselves, within the scope of governmental regulation.

Indeed, in Cousins the Supreme Court specifically declined to "decide" or to "intimate" decisions on several critical issues of governmental authority to regulate parties, thus suggesting that large areas of the law remain open despite the assumption of past practices and of lower court decisions that party affairs are subject to extensive regulation. First, the Court did not decide "whether the decisions of a National Political Party in the area of selection constitute state or governmental action" limited by the Fourteenth and Fifteenth Amendments, and thus subject to congressional regulation. Second, the Justices left open the question "whether national political parties are subject to the principles of the reapportionment decisions, or other constitutional restraints, in their methods of delegate selection or allocation." Third, the Court did not decide "whether or to what extent national political parties and their nominating conventions are regulable by, or only by, Congress."

Although the sweeping associational rights of political parties recognized in Cousins and LaFollette have sometimes been regarded as limited by the Supreme Court's reference to the special "national interest" in presidential nominating conventions, the Court has relied on those decisions to protect party autonomy below the national level. In Rivera-Rodriguez v. Popular Democratic Party (1982) the Court cited Cousins and LaFollette in holding that a territorial political party, empowered by law to select a replacement for a deceased territorial legislator originally elected on the party ticket, was "entitled to adopt its own procedures to select … [a] replacement" and "was not required to include nonmembers in what can be analogized to a party primary election."

These developments suggest that the emerging First Amendment rights of parties may give them broad autonomy to order their affairs. At a minimum, party organizations can make a strong claim to order the selection, structure, and operation of party committees and conventions free from state regulation, even if those committees and conventions participate actively in candidate selection primaries. The federal courts have held that a state law prohibiting party committees from endorsing candidates in primaries violated First Amendment speech and associational rights; they avoided deciding, however, whether party campaign activities such as contributing money were similarly protected in those primary contests. If party assemblies actually select candidates, they may claim autonomy under Cousins and LaFollette, which held that party rules overrode contrary state laws in prescribing the selection of delegates to national party nominating conventions.

At the farthest reaches, the First Amendment might be construed to allow parties a substantial role in prescribing party membership and qualifying candidates for participation in party primaries established by the states. A state has a legitimate interest in an orderly election process that encourages qualified persons to participate in elections free of fraud, intimidation, and corruption; but its interests do not warrant limitations on the First Amendment associational rights of political parties. Parties may therefore establish voter enrollment and candidate eligibility rules to prevent the intrusion into party primaries of candidates and voters who do not share the party's goals. These party rules would, of course, be subject to the limits that the Supreme Court has already imposed to protect the constitutional rights to vote and associate. Such a theory of party autonomy is consistent with the modern understanding of the First Amendment and with contemporary Supreme Court declarations of party associational rights. It is a theory awaiting full explication and recognition.

David Adamany
(1986)

Bibliography

Geyh, Charles 1983 "It's My Party and I'll Cry If I Want To": State Intrusions upon the Associational Freedoms of Political Parties. Wisconsin Law Review 1983:211–240.

Gottlieb, Stephen E. 1982 Rebuilding the Right of Association: The Right to Hold a Convention as a Test Case. Hofstra Law Review 11:191–247.

Kester, John G. 1974 Constitutional Restrictions on Political Parties. Virginia Law Review 60:735–784.

Note 1978 Equal Representation of Party Members on Political Party Central Committees. Yale Law Journal 88:167–185.

Rossiter, Clinton L. 1960 Parties and Politics in America. Ithaca, N.Y.: Cornell University Press.

Rotunda, Ronald D. 1975 Constitutional and Statutory Restrictions on Political Parties in the Wake of Cousins v. Wigoda. Texas Law Review 53:935–963.

Sorauf, Frank J. 1980 Party Politics in America. Boston: Little, Brown.