Electoral Process and the First Amendment

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Prior to 1890, political activity in the United States was generally unregulated. By 1990, however, government regulation of the electoral process extended to campaign finance, ballot access, candidate speech, and regulation of political party affairs. This regulation is motivated by a variety of perceived problems, including negative campaigning and the influence of large campaign donors, and by the need for orderly elections.

Although the extent to which the first amendment covers commercial speech or pornography has long been a topic of debate, there has been virtually unanimous agreement that political speech and association is at the core of the First Amendment, and so entitled to the highest level of protection. Regulation of the electoral process, almost by definition, implicates this speech and association.

First Amendment problems are obvious when the state seeks to prohibit candidates who express certain views from running for office, as in Communist Party v. Whitcomb (1974), striking down a requirement that candidates take a loyalty oath, or when legislation directly limits political speech, as in Mills v. Alabama (1966), striking down a ban on election-day newspaper editorials. For similar reasons, proposals to ban negative campaign ads have been constitutional nonstarters.

However, electoral regulation can also raise less obvious First Amendment concerns. For example, the freedom of association means little if the state refuses to grant a party a place on the ballot. Such regulation can be necessary to provide for orderly elections, but there is evidence, such as Williams v. Rhodes (1968), that these laws have also been used to reduce political competition and to prevent unpopular views from gaining a public hearing.

Rights of association can also be infringed by regulation of political parties' internal affairs. Parties are intimately woven into the electoral law of many states, yet remain voluntary, private associations, not state agencies. The Supreme Court has found it difficult to balance these roles, but in the 1980s and 1990s issued several decisions striking down, on freedom of association grounds, state efforts to regulate party affairs.

The clash between free speech and the regulatory impulse is most troublesome in the field of campaign finance. Large contributions to candidates raise concerns of both political equality and corruption. But, as the Court recognized in buckley v. valeo (1976), limits on political contributions and spending have the effect of limiting political speech, and so can be justified only by the most compelling state interest.

Ultimately, efforts to curtail the influence of private spending on political campaigns may be futile. By the 1990s many politically active groups were bypassing candidates' campaigns completely, choosing instead to run advertisements that discussed candidates' positions on issues, often in harsh or glowing terms, but which stopped short of specifically endorsing or opposing a candidate. Because these "issue ads" can influence election results, numerous proposals have been made to restrict them. But the Court struck down such limits in Buckley, noting that the discussion of issues is perhaps the most vital part of the First Amendment, and that the distinction between discussion of candidates and discussion of issues often dissolves in practice. Candidates both campaign on, and are identified with, issues.

By 1997, some had become so frustrated with the constitutional restraints on campaign finance regulation that the U.S. senate considered a constitutional amendment to allow greater restrictions on issues ads and private campaign donations. But such restrictions would have the odd result, in many situations, of leaving overtly political speech with less protection than commercial speech, nude dancing, or flag desecration. Absent such an amendment, the Court has shown little inclination to move in that direction.

Bradley A. Smith


Lowenstein, Daniel H. 1993 Associational Rights of Major Political Parties: A Skeptical Inquiry. Texas Law Review 71: 1741–1792.

Polsby, Daniel D. 1976 Buckley v. Valeo: The Special Nature of Political Speech. Supreme Court Review 1976:1–47.

Smith, Bradley A. 1991 Judicial Protection of Ballot Access Rights. Harvard Journal of Legislation 28:167–217.

——1997 Money Talks: Speech, Corruption, Equality, and Campaign Finance. Georgetown Law Journal 86:45–99.

Sunstein, Cass R. 1992 Free Speech Now. Pages 255–316 in Cass R. Sunstein and Richard A. Epstein, eds., The Bill of Rights in the Modern State. Chicago: University of Chicago Press.