FREEDOM OF ASSOCIATION AND BELIEF Flashcards
NATURE OF THE RIGHT
Although the First Amendment does not mention a right of freedom of association, the right to join together with other persons for expressive or political activity is protected by the First Amendment. However, the right to associate for expressive purposes is not absolute. It may be infringed to serve a compelling government interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms, at least when the infringement would not significantly affect an association’s right to express its viewpoints. However, in some cases, as noted below, a more lenient standard will apply.
ELECTORAL PROCESS
Laws regulating the electoral process might impact on First Amendment rights of speech, assembly, and association. The Supreme Court uses a balancing test in determining whether a regulation of the electoral process is valid: If the restriction on First Amendment activities is severe, it will be upheld only if it is narrowly tailored to achieve a compelling interest, but if the restriction is reasonable and nondiscriminatory, it generally will be upheld on the basis of the states’ important regulatory interests. [Burdick v. Takushi, 504 U.S. 428 (1992)—upholding prohibition against write-in candidates
Ballot Regulation
a.
Signature Requirements
The Court has found that the interest of running an efficient election supports a requirement that candidates obtain a reasonable number of signatures to get on the ballot. [Munro v. Socialist Workers Party, 479 U.S. 189 (1986)—1%] Similarly, a state’s interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of the names and addresses of persons who sign ballot petitions. [Doe v. Reed, 561 U.S. 186 (2010)] However, the Court struck down a severe ballot restriction requiring new political parties to collect twice as many signatures to run for county office as for state office.
Primary Voting Regulations
A state may enforce a party rule requiring that a person be registered as a member of the party within a reasonable amount of time prior to a primary to be able to vote. [Rosario v. Rockefeller, 410 U.S. 752 (1973)] It may also require that voters in a party’s primary be registered either in the party or as independents. Rationale: The burden on the party’s associational rights is not severe. Thus, strict scrutiny does not apply and the state’s important regulatory interests (e.g., in preserving political parties as viable identifiable groups, preventing party raiding, etc.) are sufficient to justify the restriction. [Clingman v. Beaver, 544 U.S. 581 (2005)] However, a state may not prohibit a party from allowing independent voters to vote in the party’s primary if the party wishes to allow independent voters to participate; such a requirement constitutes a severe burden on the associational rights of the party and can be justified only if it is narrowly tailored to serve a compelling interest. [
Single Party Limitation
A state law that prohibits an individual from appearing on the ballot as the candidate of more than one party does not impose a severe burden on the association rights of political parties. The state’s interest in ballot integrity and political stability are “sufficiently weighty” to justify the law.
Nonpartisan” Blanket Primary
A state primary ballot law providing that candidates self-identify their party preference and that the two top vote getters advance to the general election does not on its face violate the association rights of political parties. Rationale: (1) The law does not state that any candidate is a party’s nominee, (2) there was no evidence that voters would be confused by the self-identifications, and (3) the state may design a ballot that will make this clear. [
Party Regulation
The state has less interest in governing party activities than in governing elections in general. Thus, the Court has held invalid a statute prohibiting the governing committee of a political party from endorsing or opposing candidates in primary elections. [Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989); and see California Democratic Party v. Jones, 530 U.S. 567 (2000)—state cannot require political parties to allow nonparty members to vote in the party’s primary election] Similarly, it has held invalid state regulations concerning the selection of delegates to a national party convention and the selection of candidates at such elections.
Judicial Candidate Selection
A state law that permits political parties to choose nominees for state judgeships at state conventions does not violate the freedom of association rights of candidates for judgeships simply because the historic domination of party leaders results in strongly favoring those that they support. Rationale: This process “has been a traditional means of choosing party nominees
Limits on Contributions
A statute limiting election campaign contributions is not tested under a strict scrutiny standard; rather, it must be “closely drawn” to match a “sufficiently important interest”—an intermediate scrutiny standard
To Political Candidate
Laws limiting the amount of money that a person or group may contribute to a political candidate are valid, since the government has a sufficiently important interest in stopping the fact (or appearance) of corruption that may result from large contributions. Moreover, such laws do not substantially restrict freedom of expression or freedom of association (as long as the contributor may spend his money directly to discuss candidates and issues
Equalizing Large Expenditures
A law increasing contribution limits for a candidate whose wealthy opponent achieves an advantage by spending personal funds (exceeding $350,000) violates the First Amendment. Rationale: Although Congress may raise contribution limits for both candidates in situations of this kind, “penalizing” a self-financing candidate who robustly expresses the right to advocate his own election cannot be justified by leveling opportunities for candidates of different personal wealth
Equalizing Large Expenditures
A law increasing contribution limits for a candidate whose wealthy opponent achieves an advantage by spending personal funds (exceeding $350,000) violates the First Amendment. Rationale: Although Congress may raise contribution limits for both candidates in situations of this kind, “penalizing” a self-financing candidate who robustly expresses the right to advocate his own election cannot be justified by leveling opportunities for candidates of different personal wealth
To Ballot Referendum Committee
The government may not limit contributions to a political committee that supports or opposes a ballot referendum (as opposed to one that supports a political candidate). Such a limitation on contributions to influence referendum elections violates the freedoms of speech and association.
Disclosure of Contributors or Recipients of Money
The government may require a political party or committee to disclose the names of contributors or recipients of money to or from the party or committee. However, if the party or committee can show a “reasonable probability” that disclosure will cause harm to the party, committee, or private individuals, they have a First Amendment right to refuse to make such disclosures
Aggregate Contribution Limits Unconstitutional
The government may not limit the aggregate amount one person or entity contributes to political candidates or committees during an election even though it may limit the amount given to a single candidate. Aggregate limits violate the First Amendment’s protection of political speech because unlike individual contribution limits, they do not further the government’s interest in preventing quid pro quo corruption or the appearance of such, and they seriously restrict participation in the democratic process. Spending large sums of money in connection with elections, but not in an effort to control the exercise of a specific officeholder’s duties, does not give rise to such corruption, nor does the possibility that the contributor may garner “influence over or access to” elected officials or political parties.
Limits on Expenditures
As discussed above, the government may limit the amount that a person is permitted to contribute to another’s campaign. However, the government may not limit the amount that a person expends on his own campaign. [Buckley v. Valeo, supra] Neither may the government limit the amount that a person spends to get a
172. CONSTITUTIONAL LAW
candidate elected, as long as the expenditures are not contributed directly to the candidate nor coordinated with that of the candidate—i.e., the expenditures must be independent of the candidate and not disguised contributions. Thus, corporations, unions, etc., may spend whatever they desire to get a candidate elected
Compare—Regulations of Core Political Speech
Regulation of “core political speech” must be distinguished from regulation of the process surrounding elections. Regulation of “core political speech” will be upheld only if it passes muster under strict scrutiny
Prohibiting Any Election Day Campaigning
A state law prohibiting any campaigning on election day has been held invalid as applied to a newspaper urging people to vote in a certain way. The right to comment on political issues is one of the most essential elements of free speech, and such conduct by newspapers would pose little danger to conducting elections
Compare—Hundred-Foot Limit
A law prohibiting campaign activity within 100 feet of a polling place is valid. Even though the law is content based and concerns an essential element of free speech, it is necessary to serve the compelling interest of preventing voter intimidation and election fraud
Prohibiting Anonymous Campaign Literature
Laws prohibiting distribution of anonymous campaign literature involve core political speech and have been stricken because they were not narrowly tailored to a compelling state interest.
Prohibiting Judge Candidates from Announcing Their Views
A rule prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. This is both a content-based restriction and a restriction on core political speech. In either case, it can be justified only if it is necessary to a compelling state interest. Two state interests were suggested to support the rule here: It is necessary to maintain an impartial judiciary and it is necessary to preserve the appearance of impartiality. The Court found that the rule is “woefully underinclusive” and so is not tailored at all toward achieving these goals. For example, it allows candidates to show bias toward political parties while it prohibits them from stating an opinion about political issues. The Court also found that finding judges without any preconceptions in favor of particular legal views is not a compelling interest
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because it would be both impossible to find such a person and undesirable
Distinguishing Political Speech from Candidate Advocacy
An ad concerning a political issue, even if sponsored by a corporation, run during an election campaign will be considered to be core political speech—rather than candidate advocacy—unless it is susceptible of no reasonable interpretation other than one as an appeal to vote for or against a particular candidate. [Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)—ad urging voters to contact their senators to encourage them to end a filibuster of federal judicial nominations was core political speech—and could not be banned—even when one of the senators was running for re-election]
Solicitation of Campaign Funds by Judicial Candidates
A state may ban personal solicitation of campaign funds by judicial candidates. Rationale: If judicial candidates personally ask for money, individuals might feel obligated to donate in the hopes of garnering a favor from the candidates or from fear of retribution for not donating. The ban withstands strict scrutiny because it “advances the state’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech.”
Legitimate Government Interest
Regardless of which standard is used to evaluate an alleged restriction on political speech (that is, the strict or closely drawn scrutiny), the government must demonstrate that it is pursuing a legitimate objective. Notably, the Court has identified only one objective that can justify a restriction on political speech—the prevention of quid pro quo corruption, including the appearance of corruption—and has rejected other asserted justifications, such as the desire to reduce the amount of money in politics, level electoral opportunities, or limit the general influence a donor may have over an elected official. Further, the government must present findings that demonstrate an actual need to address a special problem; mere conjecture is inadequate. [Federal Election Commission v. Ted Cruz for Senate, 142 S. Ct. 1638 (2022)—provision limiting the repayment of loans made by a candidate to their own campaign violates the First Amendment because it burdens core political speech without proper justification
