Regulating Political Parties under a "Public Rights" First Amendment

By Magarian, Gregory P. | William and Mary Law Review, April 2003 | Go to article overview

Regulating Political Parties under a "Public Rights" First Amendment


Magarian, Gregory P., William and Mary Law Review


INTRODUCTION

I. THE DOMINANT THEORETICAL APPROACH TO REVIEWING REGULATIONS OF POLITICAL PARTIES

A. The Private Rights Theory of Expressive Freedom

B. The Responsible Party Government Theory of the Electoral Process

C. Symbiosis Between the Private Rights Theory and the Responsible Party Government Theory

1. Political Stability Through Preelectoral Coalition Building

2. Discouraging Factions by Limiting Voices in Government

3. The Voting Cue

II. AN ALTERNATIVE THEORETICAL APPROACH TO REVIEWING REGULATIONS OF POLITICAL PARTIES

A. The Public Rights Theory of Expressive Freedom

B. The Dynamic Party Politics Theory of the Electoral Process

1. Normative Skepticism: The Duopoly's Anticompetitive Effects

2. Descriptive Skepticism: The Duopoly's Dubious Benefits

3. From Skepticism About the Duopoly to an Alternative Theory of Political Parties' Role in the Democratic Process

C. Symbiosis Between the Public Rights Theory and the Dynamic Party Politics Theory

1. Inclusive Electoral Process

2. Preventing Entrenchment of Elected Officials

3. Wide-Ranging Electoral Debate

III. ANALYSIS AND CRITIQUE OF RECENT SUPREME COURT DECISIONS ABOUT ELECTORAL REGULATIONS OF POLITICAL PARTIES

A. The Court Sustains Major Parties' First Amendment Challenges to Electoral Regulations

1. Vindicating Free Association in Candidate Selection Procedures: California Democratic Party v. Jones

2. Vindicating Free Speech Rights of Access to the Means of Electoral Debate: The Colorado Republican Decisions

B. The Court Rejects Minor Parties' First Amendment Challenges to Electoral Regulations

1. Denying Free Association in Candidate Selection Procedures: Timmons v. Twin Cities Area New Party

2. Denying Free Speech Rights of Access to the Means of Electoral Debate: Arkansas Area Educational Television Commission v. Forbes

IV. FURTHER IMPLICATIONS OF THE PUBLIC RIGHTS THEORY FOR REGULATION OF POLITICAL PARTIES

A. State Action Distinction Between Major and Minor Political Parties

B. Contribution Limits, Expenditure Limits, and Political Parties

C. First Amendment Challenges to Structural Elements of the Electoral System

CONCLUSION

There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and in governmental policies is at the core of our electoral process and of the First Amendment freedoms. (1)

INTRODUCTION

The recently-enacted McCain-Feingold campaign finance law (2) pushes to the fore the questions of whether and to what extent the First Amendment allows government to regulate the electoral activities of political parties. One of the new law's primary components is its attempt to eliminate so-called "soft money"--unlimited donations to national political parties that the Democrats and Republicans have used to circumvent legal limits on campaign contributions. (3) One congressional opponent of the new law called it "the death knell" for political parties' role in elections. (4) Not surprisingly, both major parties have attacked McCain-Feingold. Most Republicans in Congress opposed the legislation, and some of them are leading a constitutional challenge to the law. Democrats, while largely supportive in Congress, encouraged the Federal Election Commission to weaken the law's effects through rule-making. (5) While opinions differ about whether McCain-Feingold will prevent circumvention of contribution limits, the two major parties strongly assert that the law will impede their functioning and thereby disable democracy.

Whether the Supreme Court upholds the statute will depend in large measure on theories about how the First Amendment limits government regulation of political parties. …

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