CALIFORNIA DEMOCRATIC PARTY v. JONES


Syllabus

CALIFORNIA DEMOCRATIC PARTY v. JONES ( No. 99-401 )
169 F. 3d 646, reversed.

CALIFORNIA DEMOCRATIC PARTY et al. <font i="1">v. JONES, SECRETARY OF STATE OF CALIFORNIA, et al.

certiorari to the united states court of appeals for the ninth circuit


No. 99–401. Argued April 24, 2000—Decided June 26, 2000

One way that candidates for public office in California gain access to the general ballot is by winning a qualified political party’s primary. In 1996, Proposition 198 changed the State’s partisan primary from a closed primary, in which only a political party’s members can vote on its nominees, to a blanket primary, in which each voter’s ballot lists every candidate regardless of party affiliation and allows the voter to choose freely among them. The candidate of each party who wins the most votes is that party’s nominee for the general election. Each of petitioner political parties prohibits nonmembers from voting in the party’s primary. They filed suit against respondent state official, alleging, inter alia, that the blanket primary violated their First Amendment rights of association. Respondent Californians for an Open Primary intervened. The District Court held that the primary’s burden on petitioners’ associational rights was not severe and was justified by substantial state interests. The Ninth Circuit affirmed.

Held:<unicode value="8194"> California’s blanket primary violates a political party’s First Amendment right of association. Pp. 4–19.

(a) States play a major role in structuring and monitoring the primary election process, but the processes by which political parties select their nominees are not wholly public affairs that States may regulate freely. To the contrary, States must act within limits imposed by the Constitution when regulating parties’ internal processes. See, e.g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214. Respondents misplace their reliance on Smith v. Allwright, 321 U. S. 649, and Terry v. Adams, 345 U. S. 461, which held not that party affairs are public affairs, free of First Amendment protections, see, e.g., Tashjian v. Republican Party of Conn., 479 U. S. 208, but only that, when a State prescribes an election process that gives a special role to political parties, the parties’ discriminatory action becomes state action under the Fifteenth Amendment. This Nation has a tradition of political associations in which citizens band together to promote candidates who espouse their political views. The First Amendment protects the freedom to join together to further common political beliefs, id., at 214–215, which presupposes the freedom to identify those who constitute the association, and to limit the association to those people, Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107. In no area is the political association’s right to exclude more important than in its candidate-selection process. That process often determines the party’s positions on significant public policy issues, and it is the nominee who is the party’s ambassador charged with winning the general electorate over to its views. The First Amendment reserves a special place, and accords a special protection, for that process, Eu, supra, at 224, because the moment of choosing the party’s nominee is the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power, Tashjian, supra, at 216. California’s blanket primary violates these principles. Proposition 198 forces petitioners to adulterate their candidate-selection process—a political party’s basic function—by opening it up to persons wholly unaffiliated with the party, who may have different views from the party. Such forced association has the likely outcome—indeed, it is Proposition 198’s intended outcome—of changing the parties’ message. Because there is no heavier burden on a political party’s associational freedom, Proposition 198 is unconstitutional unless it is narrowly tailored to serve a compelling state interest. See Timmons v. Twin Cities Area New Party, 520 U. S. 351. Pp. 4–14.

(b) None of respondents’ seven proffered state interests—producing elected officials who better represent the electorate, expanding candidate debate beyond the scope of partisan concerns, ensuring that disenfranchised persons enjoy the right to an effective vote, promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy—is a compelling interest justifying California’s intrusion into the parties’ associational rights. Pp. 14–18.

169 F. 3d 646, reversed.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined as to Part I.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.


TOP

Concurrence

CALIFORNIA DEMOCRATIC PARTY, et al. , PETI-
TIONERS v. BILL JONES, SECRETARY OF
STATE OF CALIFORNIA, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit


[June 26, 2000]

Justice Kennedy , concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45–46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante , at 14. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g ., Brief for Respondents 40, 46. It may be that organized parties, controlled—in fact or perception—by activists seeking to promote their self-interest rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante , at 13. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) , the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90Stat. 488, 2 U. S. C. §441a(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624–625 (opinion of Breyer , J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id ., at 648 (opinion of Stevens , J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.

In my view, as stated in both Colorado Republican , supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. ___, ___ (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) —restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party’s First Amendment rights.

Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant case.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.