Don & Cathy Hoffard
dchoffard at verizon.net
Mon Mar 30 19:15:33 PDT 2009
Thanks Fred Gohlke for your comments. You make me think and challenged me
to review some of the Supreme Court opinions.
Don: "Political parties have a right under the U.S. Constitution
to form an association, to assemble (conventions), to
select a candidate, and to promote that person for public
office (assuming that public office is elected)."
Fred: That is not accurate. I believe you'll find the text of the first
amendment to be:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances."
The right to assemble is granted to the people, not to political
Most Americans assume political parties are legitimate centers of
under our Constitution. That is untrue. Nothing in our Constitution
expresses or implies the need for political parties. They are an
extra-Constitutional invention, devised to advance partisan interest.
Your right it does not say they need to exist. But it says (under the 1st
amendment) that they have a RIGHT to exist. Sorry, I should have stated that
it was my summation of some of the opinions of the U.S. Supreme Court. But,
I believe that my summation of their opinions is fairly accurate, with one
exception (see Washington State Grange v. Washington State Republican Party
I think that the stated U.S. Supreme Court opinion below that "...a
political party's First Amendment right of association" is quite clear.
TASHJIAN v. REPUBLICAN PARTY OF CONNECTICUT, 479 U.S. 208 (1986)
HELD: (a) The freedom of association protected by those Amendments [1 &
14th] includes partisan political organization. Section 9-431 places limits
upon the group of registered voters whom the Party may invite to participate
in the "basic function" of selecting the Party's candidates. ...
The fact that the State has the power to regulate the time, place, and
manner of elections does not justify, without more, the abridgment of
fundamental rights, such as the right to vote or, as here, the freedom of
JUSTICE MARSHALL delivered the opinion of the Court.
...substantially interferes with the Republican Party's first amendment
right to define its associational boundaries, determine the content of its
message, and engage in effective political association.
Elrod v. Burns (1976)
... [a law cannot] severely restrict political belief and association as
protected by the First Amendment.
California Democratic Party v. Jones (2000)
California's blanket primary violates a political party's First Amendment
right of association
Washington State Grange. v. Washington State Republican Party (2007)
This case relates to the "top two primary" (I-872). The court said I-872
"... does not on its face impose a severe burden on political parties'
associational rights". "The States possess a " 'broad power to prescribe
the "Times, Places and Manner of holding Elections for Senators and
Representatives,"" "...the State has the " 'responsibility to observe the
limits established by the First Amendment rights of the State's citizens,' "
including the freedom of political association."
Note: This type of primary allow political parties to "endorse" but not
"select", but allowed parties free to "select" by other means (kind of
Fred: The problem of partisanship was well understood by the framers of our
Political Parties in the United States
By John F. Bibby
This is very interesting, but not relevant. What is relevant is the Supreme
Court's interpretation of the words in the Constitution.
I think our founding fathers got it right (whether intended or not). I
think associations (organizations, groups) should have rights without undue
I have a hard time understanding why anyone would want the government
interfering with the rights of individuals to form associations.
Fred: Political parties are quasi-official institutions designed to acquire
the reins of government. They sponsor candidates for public office
by providing the resources needed to conduct a campaign for election.
As a condition of their sponsorship, they require that the candidates
support the party, thus giving the party ultimate control of the
Parties, themselves, are not the problem. We have a natural tendency,
as well as a Constitutional right, to align ourselves with others who
share our views. In general, partisanship is healthy when it helps
voice to our views. It is destructive when it achieves power. In
words, the danger is not in parties, it is in allowing parties to
A political parties do not control of the government. Elected officials
control the government. Obama is not controlled by the Democratic Party.
After the general election the Democratic Party is almost a non entity (has
no power what so ever). Obama was elected by a majority of the voters and
thus is responsible (controlled) only to the will of the majority of the
electorate. In the primaries, parties do not sponsor candidates. They do
not take sides, nor did they contribute money to one side. They did not say
"elect Obama and not Clinton". It was the members of the Democratic Party
who decided to have Obama represent their interest and the Democratic Party
officials had very little to say in that choice. The Party Officials did,
however, set the general rules of the election. These rules did, in
general, use democratic principles (one-man one vote), but, wrongly,
deviated from those principle with at large delegates. The members of the
Democratic Party (and some cases independents) are the ones who "sponsored"
Obama in the general election. Obama did receive money (in the general
election) from the Democratic Party but that was small relative to what he
receive from others. I have already said, quite strongly, that "Money is
Power". I also said that political parties are an associations and are a
quasi interest groups. There were a lot of "interest groups" (associations)
who contributed money to Obama's campaign. He also got a lot of his money
from individual contribution. Most interest groups do try to influence
legislation (lobbyist). Political parties do not have lobbyist and thus do
not, directly, influence legislation. Party officials do control the money
they receive from individual contributions to the party. As far as I know
the money is given to the Obama campaign without strings attached. Most
other interest groups give money to candidates with "implied" strings
attached. You could have a Senate with 50 elected "Independent"
congresspersons. Within hours they would form "coalitions" along "ideology
grounds". Would you say that is partisan politics.
Fred: The big hurdle is exposing the heart of the problem. Many people fall
victim to the common malady of believing our press clippings. We've
been told so many times, through so many years, that our political
system is the best in the world, some of us are unable to see it has
become a cesspool of corruption, funded by special interests that buy
the laws we endure.
Democracy is clearly better than other forms of government for example
"autocracy, authoritarianism, despotism, totalitarianism, monarchism or
tyranny". Is the U.S form of democracy the "best"? I would say that it is a
lot better than most. Can it be improved? Yes. If a congressman votes for a
law that a special interest is in favor of "is he corrupt?". Assume a
congressman voted for "banking deregulation". Did that congressman vote for
that legislation because he receive a contributions from the them or did he
vote for "banking deregulation" because he thought (on ideological grounds)
it would be in the best interest of the county. You may say he was corrupt,
others may say that he was a hero for doing the "right" thing. However,
funding does give the "perception" of corruption.
Don: "Interest groups are also protected under the first
amendment. They also have a right to organize and to
promote their common interest."
Fred: Interest groups have a right to promote their common
interest ... but they have no right to compel it. The
idea that a minority of the citizenry, because they
share a common interest, have a right to impose
their will on the majority of the people is a flawed
view of democracy.
I don't think interest groups can "compel" anything. In the example above,
did the "Banking Interest" compel any legislation? No. A congressperson is
elected by a majority of their electorate (citizenry). He/she operates as
their representative. If they don't like their congress supporting some
special minority interest they can vote them out of office. Almost all laws
are designed to help (or hurt) some "minority" interest. For example
minimum wages, unemployment insurance, special Olympics, and Medicare. Did
a congressman who voted for one of these minority issues "impose" the
minorities "will on the majority"?
Don: "The next democratic principle include free speech.
Political campaigning is a form of speech and is thus
protected under the first amendment. A candidate is free
to speak in support of his/her election and free to
criticize his/her opponent."
Fred: This assertion seems to be based on the assumption that
elections should be a confrontational, partisan-based process
and that campaigning should be an integral part of that process.
Under the freer speech concept a candidate is free to comment on their
opponent's qualification, and positions on issues (criticize, also allowed,
was a bad choice of words). I think it is very important for a voter to
have an understanding on each candidates qualifications and positions. Just
relying on the candidates comments on the issues is, to me, not enough.
Partisan-based has nothing to do with campaigning. If you had two
independents running against each other it would be just as confrontational.
Any time you have an election, "campaigning" is "an integral part of the
process". My definition of "campaigning" is where a candidate presents
their qualification and positions on the issues and comments on their
opponents qualification and positions on the issues. Negative campaigning
(personal attacks) is an issue, but some voters would say that it is
important to know about the "integrity" of the candidate.
On the subject of money we seems to be in agreement.
Fred: I submit that the Practical Democracy concept is
worthy of your consideration for several reasons,
two of which are pertinent to your message and
the free speech commentary you cited:
I applaud you attempt to try to find solutions to the electoral problems you
have discussed. I think you may be happy to know that in the opinion issued
in NEW YORK STATE BOARD OF ELECTIONS v LOPEZ TORRES (2007) they said "The
First Amendment creates an open marketplace where ideas, most especially
political ideas, may compete without government interference."
I should, however, point out that "elections" take place at all levels in
this "Practical Democracy". And I would hope that "campaigning" (as defined
above) would also take place. Before I "vote" for one of the other two
people in my Tried, I would want them to state their qualifications and
positions on issues. And the higher up you go the more "confrontational" it
would become. I also stated earlier that "Practical Democracy" is not a
democracy (under my definition and all the definitions I could find). See
my earlier comments. You may be redefining the standard definition of
Fred: 1) because it gives every member of the electorate
an equal opportunity to influence the government,
to the full extent of their desire and ability.
Equal opportunity to influence the government is clearly and important
factor in a democracy. But not the only important factor. Under the Equal
Protection Clause [14th] everyone should have an equal opportunity to vote
in each round. If you are not selected you can't vote in later rounds. The
system provides an "undue restriction" on a person's ability to vote.
An interesting case GRAY v. SANDERS (1963)
"b) The Equal Protection Clause requires that ...all who participate in the
election must have an equal vote - whatever their race; whatever their sex;
whatever their occupation; whatever their income and wherever their home may
be in that geographical unit."
"d) The conception of political equality from the Declaration of
Independence, to Lincoln's Gettysburg Address, to the Fifteenth,
Seventeenth, and Nineteenth Amendments can mean only one thing - one person,
Fred: 2) because the cost of conducting an election by
this method is free to the participants, except
for the value of their time, and minimal to the
government. Thus, it removes the greatest single
cause of corruption in our current system ...
the need for campaign funds.
Most voters are unwilling to spend the time to vote at the polls, let along
the time this method takes. I also think you are underestimating the
governmental cost. There is a great deal of transportation costs. Some
individuals may not have the transportation money and the government would
have to provide it. Another alternative on campaign funding would be public
My comment on "Practical Democracy" are to make it more democratic and to
make it better.
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