The conduct of political campaigns is subject to numerous regulations: who can run for office, who can vote, how money is contributed and spent, how political parties operate, and so on. Efforts to regulate campaigns often involve competing First Amendment concerns, forcing the courts to adjudicate which rights deserve more protection.
Restrictions on getting on a ballot have raised First Amendment questions
Neither the Constitution nor the Bill of Rights explicitly states that a right to vote exists, but the Supreme Court in Reynolds v. Sims (1964) and Harper v. Virginia Board of Elections (1966) has ruled that Article 1, section 2, of the Constitution gives citizens the right to vote for members of Congress. Although voting rights per se do not present First Amendment challenges, related issues, such as ballot access, do.
In Burdick v. Takushi (1992), the Court ruled that a state law prohibiting voters from casting write-in ballots did not violate the First Amendment. In Burson v. Freeman (1992), it held that a Tennessee law prohibiting the solicitation of votes within 100 feet of a polling place on election day was narrowly tailored to prevent voter intimidation.
In Bullock v. Carter (1972) and Harper v. Virginia Board of Elections (1966), the Court ruled as unconstitutional the imposition of filing fees to run for office and poll taxes in order to vote, respectively. Although relying upon the equal protection clause of the Fourteenth Amendment, the justices noted that the practices also affected First Amendment activities.
Court addresses rights of independent and third-party candidates to get on ballot
Beginning in the 1960s, the Court increasingly addressed the rights of independent and third-party candidates to appear on the ballot. In Williams v. Rhodes (1968), the Court used the equal protection clause to invalidate state laws mandating extensive numbers of signatures and the formation of party committees far in advance of elections that would have made it virtually impossible for Alabama governor George Wallace to appear on the Ohio presidential ballot.
In Storer v. Brown (1974), the Court upheld a state law requiring an independent candidate to demonstrate disaffiliation from a party for at least one year on the basis that the state’s compelling interest in preventing party factionalism outweighed the competing First Amendment right to run for office.
In contrast, in Anderson v. Celebrezze (1983), the Court struck down a state law imposing early filing requirements for an independent presidential candidate to appear on the general election ballot. The justices ruled that the First Amendment rights of independent candidate John Anderson and his supporters outweighed the interest of Illinois in imposing an early filing deadline.
In some cases, independent and third-party candidates are required to file a requisite number of signatures to appear on the ballot. If the minimum threshold is too high, the courts may intervene. For example, in Illinois State Board of Elections v. Socialist Workers Party (1979), the Court ruled that a state law requiring a minor party to obtain more than 25,000 signatures to get on the ballot violated their First Amendment rights. A few years later, however, the Court decided in Norman v. Reed (1992) that requiring 25,000 signatures within the city of Chicago to appear on the ballot was not a First Amendment violation.
Yet in Munro v. Socialist Workers Party (1986), the Court upheld a requirement that a party secure at least 1 percent of the vote in a primary for its name to appear on the general election ballot. The justices noted that although the 1 percent requirement impinged upon the First Amendment rights of the party, these rights were not absolute, and it was not burdensome to require that the party demonstrate some minimum level of support to get on the ballot. In Timmons v. Twin Cities Area New Party (1997), the Court upheld a state law barring a candidate from one political party from appearing on the ballot as an endorsed candidate for another political party. The majority reasoned that the compelling interest in preventing fraud and voter confusion outweighed any First Amendment claims to ballot access.
First Amendment rights of political parties have limited some state regulations
The Supreme Court has addressed several cases in which the First Amendment rights of parties were at issue.
In Tashjian v. Republican Party of Connecticut (1986), the Court invalidated Connecticut’s closed primary law, which prevented parties from inviting independent voters to participate in their primaries. In Eu v. San Francisco County Democratic Central Committee (1989), the Court used the First Amendment to strike down a state law banning political parties from making political endorsements. In California Democratic Party v. Jones (2000), the justices invalidated a state law that turned California primaries into “open primaries,” whereby anyone of any affiliation could vote in a party primary. The Court in Jones, as well as in Tashjian and Eu, asserted that the right to free association applied to political parties and that they have the right to decide with whom to affiliate.
In Clingman v. Beaver (2005), however, the Court upheld an Oklahoma semi-closed primary system restricting who could vote in a primary. It ruled that the law so burdened the First Amendment rights of party members that it required strict scrutiny.
First Amendment provides high level of protection for campaign speech
Another First Amendment issue involves the content of what can be said during a campaign, sometimes called electioneering.
Although in Burson the Court upheld an anti-electioneering law in Tennessee that banned the solicitation of voters within 100 feet of polling places, the First Amendment generally gives candidates and groups broad rights to say whatever they want in a campaign, including lies. The libel standard of New York Times Co. v. Sullivan (1964), designed to encourage robust political debate, seems to be the threshold candidates must cross before their speech can be found to violate the First Amendment. To prove libel, public figures have to meet the high standard of proving by clear and convincing evidence that alleged libelers have made statements with actual malice – either knowledge that they were false or with “reckless disregard” of the truth.
Laws limiting campaign contributions, spending challenged as violating First Amendment
The regulation of money and politics and disclosure further implicate First Amendment issues.
In Buckley v. Valeo (1976), the Supreme Court upheld some parts and struck down other parts of the 1974 amendments to the Federal Election Campaign Act (FECA) imposing political contribution and expenditure limits and disclosure requirements. The Court upheld contribution limits, stating that while money given for political purposes implicates First Amendment concerns, the governmental interest in preventing corruption or its appearance permitted such action. The decision in Buckley struck down expenditure limits because they were more closely associated with free speech concerns.
Later, in Nixon v. Shrink Missouri Government PAC (2000), the Court indicated that contribution limits would be upheld unless they were so low that they made it impossible to raise the funds sufficient to mount an effective campaign. In McConnell v. Federal Election Commission (2003), the Court upheld a ban on soft money contributions to political parties under the Bipartisan Campaign Reform Act (BCRA) of 2002, also known as the McCain-Feingold Act. In Randall v. Sorrell (2006), however, the Court cited Buckley to strike down parts of a Vermont campaign finance law that established strict contribution and expenditure limits as First Amendment violations.
Supreme Court invalidates limits on corporate spending on political communication
And in the landmark case, Citizens United v. Federal Election Commission (2010), the Court overturned earlier rulings limiting corporate spending in campaigns. The Court in its 5-4 decision ruled that a BCRA provision that prohibited corporations and unions from using their general treasury funds for express advocacy or electioneering communications was an unconsitutional violation of First Amendment rights of speech.
Buckley had established the constitutionality of disclosure of contributions and expenditures, with the Court ruling that such disclosure was necessary to detect and prevent fraud and to ensure compliance with campaign rules.
The McConnell Court also upheld disclosure requirements in BCRA that candidates state their approval of ads produced for their campaign. In McIntyre v. Ohio Elections Commission (1995), the Court struck down a law preventing individuals from distributing anonymous literature, noting that since the days of the American Revolution, individuals had retained a right to remain anonymous.
This article was originally published in 2009. David Schultz is a professor in the Hamline University Departments of Political Science and Legal Studies, and a visiting professor of law at the University of Minnesota. He is a three-time Fulbright scholar and author/editor of more than 35 books and 200 articles, including several encyclopedias on the U.S. Constitution, the Supreme Court, and money, politics, and the First Amendment.Send Feedback on this article