[ Scalia ]
[ Kennedy ]
[ Stevens ]
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 Californias 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 Californias 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 4546.
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 Californias 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 partys 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, controlledin fact or perceptionby activists seeking to promote their self-interest rather than enhance the partys 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 Amendments 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 partys philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the States incursion on the partys associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Courts 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 Courts denial of First Amendment protections to a political partys spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Commn, 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 90 Stat. 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 624625 (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 limitedthe 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 partys First Amendment rights.
Were the views of those who would uphold both Californias 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 partys 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 States doctrinal intervention. In other words, the First Amendment injury done by the Courts ruling in Colorado Republican would be compounded were California to prevail in the instant case.
When the State seeks to regulate a political partys 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.