California Democratic Party v. Jones, 530 U.S. 567, 23 (2000)

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Cite as: 530 U. S. 567 (2000)

Kennedy, J., concurring

In my view, as stated in both Colorado Republican, supra, at 626 (opinion concurring in judgment and dissenting in part), and in Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 405-406 (2000) (dissenting opinion), these recent cases deprive political parties of their First Amendment rights. Our constitutional tradition is one in which political parties and their candidates make common cause in the exercise of political speech, which is subject to First Amendment protection. There is a practical identity of interests between parties and their candidates during an election. Our unfortunate decisions remit the political party to use of indirect or covert speech to support its preferred candidate, hardly a result consistent with free thought and expression. It is a perversion of the First Amendment to force a political party to warp honest, straightforward speech, exemplified by its vigorous and open support of its favored candidate, into the covert speech of soft money and issue advocacy so that it may escape burdensome spending restrictions. In a regime where campaign spending cannot otherwise be limited—the structure this Court created on its own in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam)—restricting the amounts a political party may spend in collaboration with its own candidate is a violation of the political party's First Amendment rights.

Were the views of those who would uphold both California's blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party's ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State's doctrinal intervention. In other words, the First Amendment injury done by the Court's ruling in Colorado Republican would be compounded were California to prevail in the instant case.

589

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