The Political Party System as a Public Forum: The Incoherence of Parties as Free Speech Associations and a Proposed Correction

Abstract

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations in Citizens United, is ripe for scrutiny. It relies on a questionable underlying premise: political parties, as entities, should be entitled to constitutional rights comparable to those afforded to individuals. As a consequence, this Article argues entities the Framers would have viewed as dangerous factions are empowered, and individuals—the literal targets of the First Amendment’s protection—are disempowered. This Article offers and explores a doctrinal alternative as a corrective: the American political party system should be treated as a limited public forum, subject to the Court’s well-established public forum doctrine.