The Supreme Court has struggled mightily to determine how political parties should be treated from a constitutional perspective, but it initially took the position that they were private entities beyond the control of the federal government. In the 1921 case of Newberry v. United States, a Senate candidate seeking his party’s nomination had exceeded the amount of primary campaign spending allowed under federal law.1 Art. I, §4 of the Constitution gives the federal government authority to “make or alter such Regulations” with regard to the “Times, Places and Manner of holding Elections” for members of Congress.2 However, when confronted with the question in Newberry of whether such power extends to the regulation of party primaries, the Supreme Court said no.3

Categories matter in First Amendment jurisprudence. The freedom of speech and its derivative rights1 work as a remarkably powerful immunity from ordinary law. Cabining and defining this immunity categorically serves to promote clarity and certainty that First Amendment freedoms will be there as a reliable shield even when deeply unpopular, and it also provides the flexibility to give sufficient weight to nonexpressive interests where appropriate. Categories can refer to discrete kinds of content deemed to receive less than full First Amendment protection, such as true threats, child pornography, and libel. Categories are also used to differentiate kinds of speakers – a government employee versus a private employee, an individual human being versus an associational entity comprising multiple human beings, the government versus a private corporation. Finally, categories are used to distinguish various platforms for expression, whether differentiating a public forum like a public park versus a private forum such as the inside of a private home; a privately owned public place like a shopping mall versus a limited public forum controlled by government that serves a narrow constituency, such as a system for registering and funding student organizations at a public university.

Today parties remain significant players in the campaign finance arena, even if they have been somewhat diminished in the wake of BCRA’s closing of the soft money loophole and the emergence of super PACs resulting from the Court’s deregulatory impulses. Some scholars have pointed to the contemporary confluence of party strength and weakness – in which the major parties, enfeebled by many of the developments in the campaign finance realm, are at the same time emboldened by way heightened polarization has sharpened the power of party identity.1 And powerful campaign finance tools do remain in the party toolbox. Joint fundraising committees, for example, allow parties to coordinate campaign finance activities for a multitude of candidates, allowing donors to write a single check that is distributed in accordance with contributions limits.2

Election law structures the process by which diverse ideas compete in America’s democratic marketplace. The First Amendment’s guarantee of free speech is clearly relevant to this endeavor, and it should not be ignored as state and federal governments regulate America’s electoral system. The free exchange of ideas allows for the drawing of ideological contrasts and for translating these differences into competitive electoral contests with tangible consequences, as elected leaders implement particular policy choices and decisively reject others. Yet, there is a vast array of ways to structure the electoral process in America. It is critical that the First Amendment be utilized such that it does not unreasonably impede the important work election law plays in keeping representative government strong. The First Amendment should allow for innovative and diverse approaches to election administration by a variety of jurisdictions tailored to a variety of needs and concerns. Vigorous and expansive First Amendment doctrine can enlarge and strengthen the opportunities for democratic participation. Less often acknowledged, however, is that fact that similarly vigorous and expansive First Amendment doctrine may have the very opposite outcome.

The U.S. Constitution does not guarantee an individual’s right to vote. Instead, in keeping with the core approach the Framers took in the Bill of Rights, the Constitution speaks of voting only as a negative right. The right to vote “shall not be denied or abridged … on account of race, color, or previous condition of servitude”1 under the Fifteenth Amendment, nor “on account of sex”2 according to the Nineteenth Amendment, nor “by reason of failure to pay any poll tax”3 in compliance with the Twenty-Fourth Amendment, nor “on account of age” among citizens who are eighteen or older4 under the Twenty-Sixth Amendment. The Fourteenth Amendment, likewise, withdraws a state’s power to “deny to any person within its jurisdiction the equal protection of the laws”5 a constitutional restraint on government that prevents certain deprivations of the vote. When addressing voting inequality, the Court has suggested that “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”6 To what extent and under what circumstances does, or from a normative perspective, should, the Constitution prevent the denial of voting rights in party primaries?

Political Parties are vehicles for nominating government officials of a desired political persuasion. Part II focused on what is perhaps the most visible mechanism by which parties go about achieving this central function, the system of primary elections that is used to select standard-bearers for the party. Parties, however, do much more than simply conduct primaries in joint effort with the states. They seek to win general elections. Yes, they do so by attempting to nominate candidates who will be maximally competitive in those general elections. But to increase their chances of electoral victory, parties also mobilize voters to increase turnout, work to build and strengthen coalitions, conduct party conventions, run advertisements, and assist the campaigns of their candidates in a variety of other ways. All of these efforts generally have one thing in common: they cost money.

Who makes the rules? One of the first lessons children must confront is that the rules are hard to change while the game is being played – especially by the players themselves. It is tempting to declare that the Free Parking space on the Monopoly board garners a $500 bonus when one is the first player to land on that corner real estate. This is, after all, an informal rule that is customary among some players of Monopoly. Yet, if it is not clearly decided in advance that the game will be played with this rule in place, allowing such ad hoc rulemaking by a rulemaker who is also a player, and whose conflict of interest is all-too-apparent, would risk a precarious slide down a slippery slope. The game itself may collapse as players in turn seek to institute new self-serving rules, conflicts ignite, and general trust in the game rapidly spirals downward. Fortunately, for families with avid board game players, this lesson is quickly learned: If we are going to add to the rulebook, we have to do it before the game begins. There is an opportunity to learn from every board game controversy, because board games end. And they begin anew.

At first glance, California Democratic Party v. Jones might seem like Tashjian redux; a state law regulating party primaries is opposed by one or more of the parties, and the Court intervenes and declares the law to be an unconstitutional infringement on the party’s First Amendment freedom of expressive association. Here, however, the law imposed a blanket primary, a primary form that takes “openness” one step further than even an open primary. Under the California blanket primary law, all primary ballots were to list all candidates regardless of party affiliation, and the candidate of each respective party to receive the most votes would become the nominee of that party in the general election.1 In Tashjian the party organization wanted to include additional voters in its primary that the state wanted to exclude, and in Jones the party organization wanted to exclude voters the state wanted to include.

The Supreme Court’s freedom of association jurisprudence, broadly construed, is deeply problematic.1 The Founders framed the First Amendment in human terms. Justice Scalia, who was in the majority in the controversial Citizens United decision that afforded corporations (a kind of association) a free speech right to spend unlimited sums on political “speech,” has himself acknowledged “that when the Framers ‘constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.’”2 However, what began as an individual First Amendment right to join with a group for expressive purposes, which was derived from that individual’s explicit right to speak in the First Amendment, over time became a right possessed by the association itself. Scalia’s justification for expanding this right beyond the individual was the seemingly intuitive assumption that an “individual person’s right to speak includes the right to speak in association with other individual persons.”3 However, individual speech and associational speech are fundamentally different, and often irreconcilable.

The language of the Equal Protection Clause of the Fourteenth Amendment is unequivocal. It commands: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”1 Yet, listening to the contemporary Supreme Court’s political party jurisprudence, its voice has been relatively silent. Granted, applying equal protection principles to an inconsistently defined concept like political parties – as we saw in the First Amendment domain – poses many complications and contradictions. This is because, on the most fundamental level, equality for one component of party might mean inequality for another. A law that provides for equal treatment for individual voters – the party in the electorate – may affect similarly situated party organizations or members of the party in government differently. One might imagine, for example, the establishment of a state nonpartisan redistricting commission – designed to address the inequality endemic in a system rife with partisan gerrymandering – that prohibits, or limits the number of, commissioners who are affiliated with either of the two major parties, therefore “unequally” discriminating against party members. In short, the Equal Protection Clause is just as susceptible to the confounding attributes of the major American political party as the First Amendment. Nonetheless, I shall argue that equal protection is preferable to a First Amendment rubric.

A primary is simply a method by which a popular vote is used to select a party candidate for a general election. It is one method among many possibilities, but it has become the dominant approach in contemporary American politics. Today, the vast majority of states – with only a few notable exceptions – use some form of partisan primaries to select party nominees.1 And ever since the 1941 Supreme Court decision of United States v. Classic, discussed in Chapter 2, it has been clear that states have the power to regulate party primaries under their broad Art. I, §4 authority to prescribe “The Times, Places and Manner of holding Elections for Senators and Representatives.”2 The Classic Court’s interpretation was quite intuitive: As party primaries become part and parcel of an expanded process of electing Senators and Representatives, the state’s regulatory power over such primaries under Art. I, §4 must naturally follow.3

The previous chapter addressed the impact various primary forms have on individual voters, or as political scientists might call them, the party in the electorate. This chapter explores these very same issues from the perspective of the party organization – the decision-makers within a party who constitute the party’s singular legal voice. It exposes not only how different the Court’s treatment has been when it is the party organization, rather than the party in the electorate, that is seeking constitutional redress, but also when it is a major party, rather than a third party. The contrast is striking.

The previous chapter explained how FECA carved out a special rule for political parties: first, exempting them from the general limitations on both contributions and expenditures; second, replacing these limitations with a single restriction on expenditures (with a total limit that differed depending upon whether the expenditures were for a presidential campaign or for a member of Congress).1 One might imply from this conflation of expenditures and contributions that, when made by a political party, Congress saw little reason to distinguish between a contribution to a candidate and an expenditure supporting that candidate. After all, one might reasonably opine, a party’s candidates and the party itself are inextricably linked, if not one and the same. A party exists to get its candidates elected.