Political Parties And Loyalty Oaths

• Secretary of State Denise Merrill is pressing for repeal of Connecticut’s longstanding “party loyalty” law, which allows party leaders to expel a person from the party if he or she displays a lack of fidelity to the party’s core principles. She argues, with broad support, that the party loyalty law is outdated and offensive to basic democratic principles.
• Donald Trump—a man demagogue who shows contempt for many of the platform principles that the modern Republican party holds dear —is the leading candidate for the Republican presidential nomination. Party leaders are desperately looking for a way to prevent his nomination.

Do these two situations have anything in common? I think so. Both raise the question, “What are political parties?” Are they private, voluntary associations of people who come together based on a shared set of beliefs and who, therefore, should be able to exclude as members persons who do not demonstrate that they adhere to the same beliefs? Or are parties public organizations? A mixture of both?

The private v. public status of a political party is relevant to determining the extent to which parties are subject to state and federal regulation. To the extent that they are private associations, they enjoy a First Amendment right to “freedom of association,” which imposes constitutional limits on the government’s ability to regulate how they operate, including how they choose their candidates for office, and even who can be a member of the party. If public entities, the constitutional right is considerably weakened and the government’s authority to regulate is correspondingly greater.

So, are they private or public? The answer is both. In some respects the law treats them as private organizations, in other respects the law requires them to submit to the will of the people, as expressed through legislatures.

In California Democratic Party v. Jones, 530 U.S. 567 (2000), the U.S. Supreme Court sought to distinguish (or attempt to distinguish) the private v. public affairs of a political party:

Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself. Consistent with this tradition, the Court has recognized that the First Amendment protects “the freedom to join together in furtherance of common political beliefs,” which “necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only[.]” That is to say, a corollary of the right to associate is the right not to associate. “`Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.’ .

In no area is the political association’s right to exclude more important than in the process of selecting its nominee.

The Court further explained:

We have recognized, of course, that States have a major role to play in structuring and monitoring the election process, including primaries. We have considered it “too plain for argument,” for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion. Similarly, in order to avoid burdening the general election ballot with frivolous candidacies, a State may require parties to demonstrate “a significant modicum of support” before allowing their candidates a place on that ballot. Finally, in order to prevent “party raiding”-a process in which dedicated members of one party formally switch to another party to alter the outcome of that party’s primary-a State may require party registration a reasonable period of time before a primary election. What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely. To the contrary, we have continually stressed that when States regulate parties’ internal processes they must act within limits imposed by the Constitution.

How does this apply to the party loyalty question? While the wisdom of such oaths is questionable, they are probably constitutional. In 1952, the U.S. Supreme Court ruled that the Texas Democratic Party could lawfully require the candidates for the office of presidential elector (in the Electoral College) to take a pledge to support the nominees of the party’s National Convention for President and Vice-President or for the party’s officers to refuse to certify as a candidate for Presidential Elector a person otherwise qualified who refuses to take such a pledge. See Ray v. Blair, 343 U.S. 214 (1952).

In 2009, the Fifth Circuit Court of Appeals relied on Ray v. Blair when it rejected a challenge to a Texas Democratic Party rule requiring prospective presidential candidates to “fully support” the party’s presidential nominee, “whoever that shall be,” in order to qualify for the primary ballot. See Kucinich v. Texas Democratic Party, 563 F.3d 161 (2009).

And earlier this year, a federal district court judge in Virginia rejected a request for an injunction against a Virginia Republican Party rule that would have required persons who wanted to vote in the Virginia Republican presidential primary to sign party loyalty pledge.

Although the federal constitution does not appear to prohibit party loyalty oaths, I wonder whether it prohibits states from passing laws that forbid loyalty oaths on the ground that such laws infringe on a party’s freedom of association. (I think such a law would be problematic. If any readers have thoughts on that issue, please comment!)

With respect to Donald Trump, the Republican Party (actually, individual state Republican parties) probably could lawfully adopt rules that bar him from appearing on ballots as a Republican candidate based on his lack of loyalty to party principles. The problem, of course, is that the rules currently in place allow him to run as a Republican, and he is taking full advantage of those rules.

I understand the initial reaction of many people to the proposition–still embodied in Connecticut law–that political parties should be able to exclude people who want to formally identify as members of the party. “Who is the party to question whether I’m a genuine Democrat or Republican?” But the law recognizes that political parties are, to a significant extent, private associations. As such, they enjoy a constitutional right to freedom of association, which includes the right not to associate with certain people, particularly people whose allegiance to the shared beliefs and principles of the party are doubtful. [For the record, the law does not permit political parties to discriminate against members based on race, gender and a host of other suspect classifications. That is a post for another day.]