POLITICAL PARTIES, ELECTIONS, AND CONSTITUTIONAL LAW

Since the mid-1980s the Supreme Court has decided three significant first amendment cases affecting political parties and one that will hamper states' efforts to reform the initiative process.

inTashjian v. Republican Party of Connecticut (1986), the republican party sought to "open" its primary election for high-level offices by permitting independent voters to participate, but the Democratic legislature refused to modify statutes limiting participation to party registrants. The Supreme Court held that the First Amendment freedom of association guarantees a party the right to control its own nomination process; it therefore ruled that state law could not prohibit the Republicans from opening their primary.

Tashjian was a mixed blessing for adherents of the party-renewal movement, who were pleased by the extension of association rights to parties but who tend to favor a closed primary as more conducive to strong political parties with relatively sharp ideological focus. The party renewalists welcomed more uniformly the Court's unanimous decision in Eu v. San Francisco County Democratic Central Committee (1989), which relied on the parties' right of association to rule that state legislation can neither prevent party committees from endorsing candidates in primary elections nor require a particular governing structure for party organizations.

inTashjian and Eu, the Court ignored a point that has been made by numerous commentators, that the extension of rights of association to parties is in tension with Smith v. Allwright (1944) and other cases, which treated parties, at least when they are conducting primary elections, as instrumentalities of the state for purposes of the doctrine of state action. Within the logic of the state action doctrine, it may be anomalous for the same entity to be treated as part of the state and yet to enjoy constitutional rights against the state. Nevertheless, the conclusion that parties should be protected by the First Amendment and at the same time barred from denying equal protection and other constitutional rights to citizens is not likely to offend many people.

A more serious deficiency in the Court's approach is its failure to recognize that party associational claims may reflect intraparty disputes rather than the typical civil liberties claim by a private person against the state. This was not the case in Tashjian, where, as Justice thurgood marshall noted in his majority opinion, a united Republican party was prevented from opening its primary by Democratic legislators. But in Eu the statutes governing each major party reflected the wishes of that party's delegation in the state legislature.

Eu establishes that over some range of decision making affecting parties, the wishes of state party committees or other extragovernmental party structures will prevail when they conflict with the wishes of the party's elected officials as reflected in state legislation. Mere invocation of the concept of freedom of association cannot establish that this result will strengthen parties in the long run or have other desirable consequences.

in rutan v. republican party of illinois (1990), the Court significantly extended the range of its antipatronage doctrine. In Elrod v. Burns (1976) and branti v. finkel (1980), the Court had held that to fire nonpolicymaking public employees because of nonaffiliation with the party in power violated the employees' First Amendment rights of speech and association. In Rutan this principle was extended to transfers, promotions, and even hiring of public employees based on party affiliation.

whereasTashjian and Eu have been welcomed by many as empowering parties, Rutan has been criticized as weakening them. As Justice lewis f. powell argued in dissent in Elrod, the prospect of reward often has been a stronger inducement to party activism than ideological conviction, and at many times and in many places, the main reward for party service has been public employment.

It may be doubted whether any of the recent party decisions actually will have the pro-or antiparty effects that have been ascribed to them. The actual points at issue in Tashjian and Eu—open or closed primaries, party endorsements in primary elections, details of party governance—are not likely to have more than marginal consequences for the American party system. For example, some have hoped that the availability of party endorsements in primaries would permit party organizations to impose party discipline on public officials. But in the first primary held in California after the Eu decision, the Republican party opted not to make endorsements and the two statewide candidates in competitive races who were endorsed by the Democratic party were losers in the primary.

ifTashjian and Eu were extended to the point that parties could not be required by state law to use primaries at all to select their candidates, the effect on the American system could be considerable. Though Justice antonin scalia argued in dissent that just such a result was implied by Tashjian, there is no reason to expect the majority to press its reasoning that far. Even if it does, perhaps few, if any, party organizations would opt for nomination processes that could be perceived as less democratic than primaries.

The patronage cases, if enforced in a different era, might have had major effects. Even by the time of Elrod, patronage practices had declined sharply in most parts of the United States. Rutan may deliver a deathblow to patronage more surely than Elrod did, but even so, its effects on the political system should be limited to relatively few localities.

Meyer v. Grant (1988), though not affecting political parties, will be a significant restraint in those states whose state consititutions provide for the initiative process. Meyer struck down a Colorado statute that prohibited the use of paid circulators to qualify initiative measures for the ballot.

Meyer came just as the "initiative industry" was exploding in California and beginning to spread to other initiative states. This industry assures a ballot position for proponents with deep pockets while rendering volunteer petition drives virtually obsolete.

As popular resistance grows to increased numbers of initiative measures proposed by well-funded but sometimes narrowly based groups, state legislatures are likely to look for ways of evading Meyers v. Grant or, if no such ways can be found, to increase the signature requirements as a means of cutting the number of proposals that qualify for the ballot.

Daniel H. Lowenstein
(1992)

Bibliography

Epstein, Leon D. 1986 Political Parties in the American Mold. Madison: University of Wisconsin Press.

Lowenstein, Daniel Hays and Stern, Robert M. 1989 The First Amendment and Paid Initiative Petition Circulators: A Dissenting View and a Proposal. Hastings Constitutional Law Quarterly 17:175–224.