William & Mary Law Review Volume 44 (2002-2003) Issue 5 Article 2 April 2003 Regulating Political Parties under a "Public Rights" First Amendment Gregory P. Magarian Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Gregory P. Magarian, Regulating Political Parties under a "Public Rights" First Amendment, 44 Wm. & Mary L. Rev. 1939 (2003), https://scholarship.law.wm.edu/wmlr/vol44/iss5/2 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr William and Mary Law Review VOLUME 44 No.5,2003 REGULATING POLITICAL PARTIES UNDER A "PUBLIC RIGHTS" FIRST AMENDMENT GREGORY P. MAGARIAN* TABLE OF CONTENTS INTRODUCTION ...................................... 1942 I. THE DOMINANT THEORETICAL APPROACH TO REVIEWING REGULATIONS OF POLITICAL PARTIES .................. 1946 A. The PrivateRights Theory of Expressive Freedom ..... 1947 B. The Responsible Party Government Theory of the ElectoralProcess ................................ 1959 C. Symbiosis Between the PrivateRights Theory and the Responsible Party Government Theory ........... 1965 1. Political Stability Through Preelectoral Coalition Building ............................ 1965 2. DiscouragingFactions by Limiting Voices in Government ................................ 1968 3. The Voting Cue ............................... 1970 * Associate Professor, Villanova University School of Law. B.A. 1989, Yale University; J.D., M.P.P. 1993, University of Michigan. Thanks to Michelle Anderson, Ed Baker, Mike Carroll, Steve Chanenson, Frank Cooper, Dan Farber, Heather Gerken, Rick Hasen, Sam Issacharoff, Rick Pildes, and workshop participants at Rutgers University-Camden School of Law for helpful comments on an earlier draft. 1939 1940 WILLIAM AND MARY LAW REVIEW [Vol. 44:1939 II. AN ALTERNATIVE THEORETICAL APPROACH TO REVIEWING REGULATIONS OF POLITICAL PARTIES .................. 1971 A. The PublicRights Theory of Expressive Freedom ..... 1972 B. The Dynamic Party Politics Theory of the Electoral Process ................................ 1991 1. Normative Skepticism: The Duopoly's Anticompetitive Effects ......................... 1992 2. DescriptiveSkepticism: The Duopoly's Dubious Benefits .................. 1994 3. From Skepticism About the Duopoly to an Alternative Theory of PoliticalParties' Role in the Democratic Process ............................ 1996 C. Symbiosis Between the Public Rights Theory and the Dynamic Party Politics Theory ................. 2003 1. Inclusive Electoral Process ..................... 2003 2. PreventingEntrenchment of Elected Officials ...... 2004 3. Wide-Ranging ElectoralDebate .................. 2007 III. ANALYSIS AND CRITIQUE OF RECENT SUPREME COURT DECISIONS ABOUT ELECTORAL REGULATIONS OF POLITICAL PARTIES ................................ 2010 A. The Court Sustains Major Parties'First Amendment Challenges to ElectoralRegulations ................ 2011 1. Vindicating Free Association in CandidateSelection Procedures:California Democratic Party v. Jones ... 2011 2. Vindicating Free Speech Rights of Access to the Means of Electoral Debate: The Colorado Republican Decisions .............. 2024 B. The Court Rejects Minor Parties'First Amendment Challenges to Electoral Regulations ................ 2031 1. Denying Free Association in CandidateSelection Procedures:Timmons v. Twin Cities Area New Party 2031 2. Denying Free Speech Rights of Access to the Means of Electoral Debate: Arkansas Area Educational Television Commission v. Forbes ................ 2038 20031 REGULATING POLITICAL PARTIES 1941 IV. FURTHER IMPLICATIONS OF THE PUBLIC RIGHTS THEORY FOR REGULATION OF POLITICAL PARTIES ............... 2043 A. State Action DistinctionBetween Major and M inor PoliticalParties ........................... 2043 B. ContributionLimits, Expenditure Limits, and PoliticalParties ............................. 2050 C. FirstAmendment Challenges to StructuralElements of the ElectoralSystem ........................... 2055 CONCLUSION . ....................................... 2060 1942 WILLIAM AND MARY LAW REVIEW [Vol. 44:1939 There is, of course, no reason why two parties should retaina permanent monopoly on the right to have people vote for or againstthem. Competition in ideas and in governmentalpolicies is at the core of our electoralprocess and of the FirstAmendment freedoms.' INTRODUCTION The recently-enacted McCain-Feingold campaign finance law2 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? One congressional opponent of the new law called it "the death knell" for political parties' role in elections." 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 1. Williams v. Rhodes, 393 U.S. 23, 32 (1968). 2. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002). 3. See id. § 101, 116 Stat. 81, 82-86 (amending § 323 of the Federal Election Campaign Act of 1971, 2 U.S.C. § 431). "Soft money" refers to funds, not subject to federal limits on contributions, that political parties use to finance the state portion of an electoral slate. Parties have developed methods of using soft money to fund federal candidates, notably through "issue advertisements"-also a subject of proscription in McCain-Feingold-which advocate positions in federal campaigns without expressly advocating a particular candidate's election. See generallyRichard Briffault, The PoliticalParties and CampaignFinance Reform, 100 COLUM. L. REV. 620, 628-31 (2000). 4. Excerpts From House Debate on the Shays-Meehan Campaign Finance Bill, N.Y. TimEs, Feb. 14, 2002, at A30 (quoting Rep. Thomas M. Davis III (R-Va.)). Advocates of McCain-Feingold do not dispute the characterization of the law as a check on the parties' influence. See, e.g., Briffault, supra note 3, at 655-59 (advocating regulations along the lines of McCain-Feingold to control the parties' disproportionate influence on the electoral process). 5. See Richard A. Oppel, Jr., Sponsors Assert Soft Money Ban May Be Diluted, N.Y. TIMES, June 14, 2002, at Al. 2003] REGULATING POLITICAL PARTIES 1943 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 voters7 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.' According to recent decisions, the Amendment *doesnot bar states from forbidding minor parties to co-nominate major party 6. This Article discusses only the activities of political parties that relate directly to nominating and electing candidates. Political parties have other important functions-notably their roles in passing legislation, redistricting, and distributing patronage jobs-that I do not address directly. 7. See Cal. Democratic Partyv. Jones, 530 U.S. 567 (2000) (discussed infra Part III.A.1). 8. See Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm. (Colorado I), 533 U.S. 431 (2001); Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm'n (Colorado I), 518 U.S. 604 (1996) [hereinafter Colorado ] (discussed infra Part III.A.2). 9. By "major political parties," I mean the Republicans and Democrats, or any party or parties that unseat the Democrats and/or the Republicans as one of the two dominant parties in the United States. I use the term "minor political parties" as an umbrella to cover alternative parties that survive multiple election cycles, such as the Green Party and the Libertarian Party; parties that emerge as vehicles for an individual's candidacy, such as the Reform Party; and independent candidacies, such as John Anderson's 1980 presidential