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CRS Annotated Constitution

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Political Association.—The major expansion of the right of association has occurred in the area of political rights. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. . . . The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.”223 Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes224 has passed on numerous state restrictions that have an impact upon the ability of individuals or groups to join one or the other of the major parties or to form and join an independent political party to further political, social and economic goals.225 Of course, the right is not absolute. The Court has recognized that there must be substantial state regulation of the election process which necessarily will work a diminu[p.1062]tion of the individual’s right to vote and to join with others for political purposes. The validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the governmental interests and the means of implementing those interests.226 Many restrictions upon political association have survived this sometimes exacting standard of review, in large measure upon the basis of some of the governmental interests found compelling.227

A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a nonpolicy– making, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations,228 the Court subsequently held that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”229 [p.1063]The concept of policymaking, confidential positions was abandoned, the Court noting that some such positions would nonetheless be protected whereas some people filling positions not reached by the description would not be.230 The opinion of the Court makes difficult an evaluation of the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois231 held that restrictions on patronage apply not only to dismissal or its substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low–level public employees.

The protected right of association extends as well to coverage of party principles, enabling a political party to assert against some state regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary election, while legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in an election limited to those voters who affiliated with the party.232

Provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political organizations, including the maintenance by such organizations of records of everyone contributing more than $10 and the reporting by individuals and groups that are not candidates or political committees who contribute or expend more than $100 a year for the purpose of advocating the election or defeat of an identified candidate, were sustained.233 “[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. . . . We long have recognized[p.1064]the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. . . . We have required that the subordinating interests of the State must survive exacting scrutiny. We have also insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.”234 The governmental interests effectuated by these requirements—providing the electorate with information, deterring corruption and the appearance of corruption, and gathering data necessary to detect violations—were found to be of sufficient magnitude to be validated even though they might incidentally deter some persons from contributing.235 A claim that contributions to minor parties and independents should have a blanket exemption from disclosure was rejected inasmuch as an injury was highly speculative; but any such party making a showing of a reasonable probability that compelled disclosure of contributors’ names would subject them to threats or reprisals could obtain an exemption from the courts.236 The Buckley Court also narrowly construed the requirement of reporting independent contributions and expenditures in order to avoid constitutional problems.237

Conflict Between Organization and Members.—It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.238 But at least in some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may well be constitutional limitations. Disputes implicating such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.239

[p.1065]

Initially, the Court avoided constitutional issues in resolving a challenge by union shop employees to use of their dues money for political causes. Acknowledging “the utmost gravity” of the constitutional issues, the Court determined that Congress had intended that dues money obtained through union shop agreements should be used only to support collective bargaining and not in support of other causes.240 Justices Black and Douglas, in separate opinions, would have held that Congress could not constitutionally provide for compulsory membership in an organization which could exact from members money which the organization would then spend on causes which the members opposed; Justices Frankfurter and Harlan, also reaching the constitutional issue, would have held that the First Amendment was not violated when government did not compel membership but merely permitted private parties to enter into such agreements and that in any event so long as members were free to espouse their own political views the use by a union of dues money to support political causes which some members opposed did not violate the First Amendment.241

In Abood v. Detroit Board of Education,242 the Court applied Hanson and Street to the public employment context. Recognizing that employee associational rights were clearly restricted by any system of compelled support, because the employees had a right not to associate, not to support, the Court nonetheless found the governmental interests served by the agency shop provision—the promotion of labor peace and stability of employer–employee relations—to be of overriding importance and to justify the impact upon employee freedom.243 But a different balance was drawn[p.1066]when the Court considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective–bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.244 However, the remedy was not to restrain the union from making non–collective bargaining related expenditures but to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system whereby employees could object generally to such use of union funds and could obtain either a proportionate refund or reduction of future exactions.245 Later, the Court further tightened the requirements. A proportionate refund is inadequate because “even then the union obtains an involuntary loan for purposes to which the employee objects;”246 an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee.247 Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decisionmaker.”248

On a related matter, the Court held that a labor relations body could not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.249


Footnotes

223 Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973) .
224 393 U.S. 23 (1968) .
225 E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time deadline for enrollment in party in order to vote in next primary); Kusper v. Pontikes, 414 U.S. 51 (1973) (barring voter from party primary if he voted in another party’s primary within preceding 23 months); American Party of Texas v. White, 415 U.S. 767 (1974) (ballot access restriction); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (number of signatures to get party on ballot); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1982) (limit on contributions to associations formed to support or oppose referendum measure); Clements v. Fashing, 457 U.S. 957 (1982) (resign–to–run law).
226 Williams v. Rhodes, 393 U.S. 23, 30–31 (1968) ; Bullock v. Carter, 405 U.S. 134, 142–143 (1972) ; Storer v. Brown, 415 U.S. 724, 730 (1974) ; Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) .
227 Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974) , the Court found “compelling” the state interest in achieving stability through promotion of the two–party system, and upheld a bar on any independent candidate who had been affiliated with any other party within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31–32 (1968) (casting doubt on state interest in promoting Republican and Democratic voters). The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller, 410 U.S. 752 (1973) , but not to justify requiring one to forgo one election before changing parties. Kusper v. Pontikes, 414 U.S. 51 (1973) . See also Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973) (efficient operation of government justifies limits on employee political activity); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (permitting political party to designate replacement in office vacated by elected incumbent of that party serves valid governmental interests). Storer v. Brown was distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983) , holding invalid a requirement that independent candidates for President and Vice–President file nominating petitions by March 20 in order to qualify for the November ballot; state interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters. See also Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state interests are insubstantial in imposing “closed primary” under which a political party is prohibited from allowing independents to vote in its primaries).
228 Elrod v. Burns, 427 U.S. 347 (1976) . The limited concurrence of Justices Stewart and Blackmun provided the qualification for an otherwise expansive plurality opinion. Id. at 374.
229 Branti v. Finkel, 445 U.S. 507, 518 (1980) . On the same page, the Court refers to a position in which “party membership was essential to a discharge of the employee’s governmental responsibilities.” (emphasis supplied). A great gulf separates “appropriate” from “essential,” so that much depends on whether the Court was using the two words interchangeably or whether the stronger word was meant to characterize the position noted and not to particularize the standard.
230 Justice Powell’s dissents in both cases contain lengthy treatments of and defenses of the patronage system as a glue strengthening necessary political parties. Id. at 520.
231 497 U.S. 62 (1990) . Rutan was a 5–4 decision, with Justice Brennan writing the Court’s opinion. The four dissenters indicated, in an opinion by Justice Scalia, that they would not only rule differently in Rutan, but that they would also overrule Elrod and Branti.
232 Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981) . See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party rules, not state law, governed which delegation from State would be seated at national convention; national party had protected associational right to sit delegates it chose).
233 Buckley v. Valeo, 424 U.S. 1, 60–84 (1976) .
234 Id. at 64 (footnote citations omitted).
235 Id. at 66–68.
236 Id. at 68–74. Such a showing, based on past governmental and private hostility and harassment, was made in Brown v. Socialist Wrokers ’74 Campaign Comm., 459 U.S. 87 (1982) .
237 424U.S. at 74–84 424U.S. at 74–84.
238 The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537 , 29 U.S.C. §§ 411 –413, enacted a bill of rights for union members, designed to protect, inter alia, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects.
239 Sec. 8(a)(3) of the Labor–Management Relations Act of 1947, 61 Stat. 140 , 29 U.S.C. Sec. 158 (a)(3), permits the negotiation of union shop but not closed shop agreements, which, however, may be outlawed by contrary state laws. Sec. 14(b), 61 Stat. 151 , 29 U.S.C. Sec. 164 (b). See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) ; AFL v. American Sash & Door Co., 335 U.S. 538 (1949) . In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238 , 45 U.S.C. Sec. 152 , Eleventh; Railway Employees Dept. v. Hanson, 351 U.S. 225 (1956) .
240 International Ass’n of Machinists v. Street, 367 U.S. 740 (1961) . The quoted phrase is at 749.
241 Id. at 775 (Justice Douglas concurring), 780 (Justice Black dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the same day, a majority of the Court declined, in Lathrop v. Donohue, 367 U.S. 820 (1961) , to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an “integrated bar.” These issues were faced squarely in Keller v. State Bar of California, 496 U.S. 1 (1990) . An integrated state bar may not, against a members’ wishes, devote compulsory dues to ideological or other political activities not “necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.” Id. at 14.
242 431 U.S. 209 (1977) . That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Street, id. at 226–32, but Justice Powell found the distinction between public and private employment crucial. Id. at 244.
243 Id. at 217–23. The compelled support was through the agency shop device. Id. at 211, 217 n. 10. Justice Powell, joined by Chief Justice Burger and Justice Blackmun, would have held that compelled support by public employees of unions violated their First Amendment rights. Id. at 244. For an argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792–95 (1978) , and id. at 802, 812–21 (Justice White dissenting).
244 431U.S. at 232–37 431U.S. at 232–37.
245 Id. at 237–42. On the other hand, nonmembers may be charged for such general union expenses as contributions to state and national affiliates, expenses of sending delegates to state and national union conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) .
246 Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435 (1984) .
247 Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986) .
248 Id. at 309.
249 Madison School Dist. v. WERC, 429 U.S. 167 (1977) .
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