Morse v. Republican Party of Va., 517 U.S. 186, 61 (1996)

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246

MORSE v. REPUBLICAN PARTY OF VA.

Scalia, J., dissenting

Securities and Exchange Commission, see 15 U. S. C. § 80b-3, does not extend to persons who publish "nonpersonalized" investment advice such as periodic market commentary— thereby avoiding the question whether Congress could constitutionally require such persons to register. Lowe, supra, at 190, 204-205, and n. 50. How insignificant that prior restraint when compared with the requirement for preclearance of all changes in self-governance by political parties.

What drives a majority of the Court to find a prior restraint where the text does not demand (or even suggest) it is the notion that it "strains credulity" to think that Congress would enact a Voting Rights Act that did not reach political-party activity, Stevens, J., ante, at 217. Congress, the majority believes, "could not have intended" such a result, Breyer, J., ante, at 239. I doubt the validity of that perception; the assumption it rests upon—that a legislature never adopts half-way measures, never attacks the easy part of a problem without attacking the more sensitive part as well—seems to me quite false. Indeed, the one-step-at-a-time doctrine that we regularly employ in equal protection cases is based on precisely the opposite assumption. See, e. g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488-489 (1955).

Moreover, even if one were to accept the majority's question-begging assumption that Congress must have covered political-party activity, and even if one were to credit their sole textual support for such coverage, today's decision to impose a prior restraint upon purely private, political-party activity would still be incomprehensible. The sole textual support adduced by the two opinions consists of § 14's reference to elections for "party office," and § 2's reference to "the political processes leading to nomination or election." See Stevens, J., ante, at 207-209; Breyer, J., ante, at 236- 237. Justice Thomas gives compelling reasons why these phrases cannot bear the meaning the majority would ascribe, see post, at 277-282. But even accepting that they mean

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