Regulating political parties under a 'public rights' first amendment.

• Author: Magarian, Gregory P.

INTRODUCTION

1. THE DOMINANT THEORETICAL APPROACH TO REVIEWING REGULATIONS OF POLITICAL PARTIES

   1. The Private Rights Theory of Expressive Freedom

   2. The Responsible Party Government Theory of the Electoral Process

   3. Symbiosis Between the Private Rights Theory and the Responsible Party Government Theory

   1. Political Stability Through Preelectoral Coalition Building

   2. Discouraging Factions by Limiting Voices in Government

   3. The Voting Cue

2. AN ALTERNATIVE THEORETICAL APPROACH TO REVIEWING REGULATIONS OF POLITICAL PARTIES

   1. The Public Rights Theory of Expressive Freedom

   2. The Dynamic Party Politics Theory of the Electoral Process

      1. Normative Skepticism: The Duopoly's Anticompetitive Effects

      2. Descriptive Skepticism: The Duopoly's Dubious Benefits

      3. From Skepticism About the Duopoly to an Alternative Theory of Political Parties' Role in the Democratic Process

   3. Symbiosis Between the Public Rights Theory and the Dynamic Party Politics Theory

      1. Inclusive Electoral Process

      2. Preventing Entrenchment of Elected Officials

      3. Wide-Ranging Electoral Debate

3. ANALYSIS AND CRITIQUE OF RECENT SUPREME COURT DECISIONS ABOUT ELECTORAL REGULATIONS OF POLITICAL PARTIES

   1. The Court Sustains Major Parties' First Amendment Challenges to Electoral Regulations

      1. Vindicating Free Association in Candidate Selection Procedures: California Democratic Party v. Jones

      2. Vindicating Free Speech Rights of Access to the Means of Electoral Debate: The Colorado Republican Decisions

   2. The Court Rejects Minor Parties' First Amendment Challenges to Electoral Regulations

      1. Denying Free Association in Candidate Selection Procedures: Timmons v. Twin Cities Area New Party

      2. Denying Free Speech Rights of Access to the Means of Electoral Debate: Arkansas Area Educational Television Commission v. Forbes

4. FURTHER IMPLICATIONS OF THE PUBLIC RIGHTS THEORY FOR REGULATION OF POLITICAL PARTIES

   1. State Action Distinction Between Major and Minor Political Parties

   2. Contribution Limits, Expenditure Limits, and Political Parties

   3. First Amendment Challenges to Structural Elements of the Electoral System

   CONCLUSION

   There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and in governmental policies is at the core of our electoral process and of the First Amendment freedoms. (1)

   INTRODUCTION

   The recently-enacted McCain-Feingold campaign finance law (2) pushes to the fore the questions of whether and to what extent the First Amendment allows government to regulate the electoral activities of political parties. One of the new law's primary components is its attempt to eliminate so-called "soft money"--unlimited donations to national political parties that the Democrats and Republicans have used to circumvent legal limits on campaign contributions. (3) One congressional opponent of the new law called it "the death knell" for political parties' role in elections. (4) Not surprisingly, both major parties have attacked McCain-Feingold. Most Republicans in Congress opposed the legislation, and some of them are leading a constitutional challenge to the law. Democrats, while largely supportive in Congress, encouraged the Federal Election Commission to weaken the law's effects through rule-making. (5) While opinions differ about whether McCain-Feingold will prevent circumvention of contribution limits, the two major parties strongly assert that the law will impede their functioning and thereby disable democracy.

   Whether the Supreme Court upholds the statute will depend in large measure on theories about how the First Amendment limits government regulation of political parties. (6) The present Court, across the terrain of First Amendment doctrine, treats the freedom of expression and the attendant freedom of association as private, negative rights intended to shield individual autonomy against government regulation. The Court balances individuals' expressive interests against the government's regulatory interest without regard to broader societal implications of First Amendment disputes. This approach has led the Court in recent years to show great solicitude for the interests of the two major political parties. In rulings that benefit those parties almost exclusively, the Court has held that the First Amendment's protection of free association bars states from making political parties accept nonpartisans as primary voters (7) and that the Free Speech Clause bars Congress from restricting parties' expenditures in political campaigns unless the spending is explicitly coordinated with the party's candidate. (8) In contrast, the Court has taken a narrow view of First Amendment rights where minor political parties' distinct interests have been at issue. (9) According to recent decisions, the Amendment does not bar states from forbidding minor parties to co-nominate major party candidates (10) or excluding minor party candidates from televised candidate debates. (11)

   The Court's autonomy-based theory of expressive freedom may appear unremarkable, but the application of that theory to disputes about regulations of political parties has done remarkable damage to our electoral system. The Court's recent decisions have validated a specific normative vision of partisan politics: that a stable, two-party political system is essential to our democratic institutions, and that the best way to achieve the myriad benefits the major political parties provide is to maximize their autonomy. The major parties' prerogative to participate freely in elections has trumped any reason asserted for regulating them, such as enhancing popular participation in elections or facilitating more robust political debate. In contrast, governmental interests in political stability have outweighed minor parties' expressive interests. As a result of the Court's political engineering, people are more alienated from the political process and less likely to participate in politics; elections are less competitive and incumbent officeholders more secure; and political debate contributes far less to the resolution of important issues than our democratic culture requires.

   This Article advocates a different First Amendment theory for cases involving regulation of political parties' electoral activities. It contends that the Court should view the First Amendment not as a mere negative protection against government regulation but rather as an affirmative constitutional commitment to foster a vigorous, broadly participatory electoral discourse. Expressive freedom, on this account, ensures that all members of the political community will have access to the information they need in order to participate thoughtfully in the political process. My alternative understanding of the First Amendment would allow substantial regulation of the major political parties' electoral activities while strengthening the First Amendment's role in protecting minor parties. That state of affairs would facilitate a vibrant participatory democracy, producing a more engaged electorate, heightened electoral competition, and more robust political debate.

   The first two Parts of this Article build a theoretical framework for analyzing disputes about regulations of political parties. Part I examines the Court's familiar and entrenched approach to the First Amendment: the private rights theory of expressive freedom. It demonstrates that the private rights theory compels legal decisions about political parties that comport with a particular perspective on parties' role in our democracy, known by political scientists as the responsible party government theory. This Article sheds new light on both theories by demonstrating how the private rights theory serves the ends of the responsible party government theory.

   Part II advocates alternatives to both theories. The alternative account of the First Amendment, which I call the public rights theory, draws on a venerable tradition of legal scholarship focused on the essential value of expressive freedom for the process of collective self-determination. The alternative account of political parties' role in our democratic system, which I call the dynamic party politics theory, reflects skepticism about the two-party system and envisions a political process marked by popular engagement, robust electoral competition, and wide-ranging debate. Part II demonstrates how judicial embrace of the public rights theory would compel judicial decisions about parties' electoral activities that would comport with the dynamic party politics theory.

   The remainder of this Article employs the theoretical insights of the first two Parts to take a fresh look at the recent cases and related doctrinal issues. Part III uses the entrenched and alternative constitutional and political theories as filters for analyzing and critiquing the Supreme Court's four recent decisions about regulations of political parties' electoral activities. My analyses demonstrate in concrete terms how the private rights theory of expressive freedom serves the responsible party government theory of political parties. My critiques show how the Court should have decided these cases, explaining how and why judicial embrace of the public rights theory would have resulted in decisions consistent with the dynamic party politics theory. Finally, Part IV discusses some other ways in which applying the public rights theory to regulations of political parties' electoral activities would lead the Court to change present law. It distinguishes between major and minor political parties in identifying state action; reconsiders the aspect of Buckley v. Valeo (12) that allows regulation of political contributions but not of expenditures, in light of the advantage that distinction has conferred on the major parties; and contends that certain subconstitutional features of our electoral system that perpetuate the two-party system--notably states' ubiquitous...