Mobil Oil Exploration, Inc. v. United States, 530 U.S. 604 (2000)

Author: Justice Kennedy

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Mobil Oil Exploration, Inc. v. United States, 530 U.S. 604 (2000)

JUSTICE KENNEDY, concurring.

Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions, voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy of its solution, for there appears to have been a substantial increase in voter interest and voter participation. See Brief for Respondents 45-46.

Encouraging citizens to vote is a legitimate, indeed essential, state objective, for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close case if it were simply a way to make elections more fair and open or addressed matters purely of party structure.

The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante at 581-582. From the outset, the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e.g., Brief for Respondents 40, 46. It may be that organized parties, controlled -- in fact or perception -- by activists seeking to promote their self-interest, rather than enhance the party’s long term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons, I agree with the Court’s opinion.

I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its statute, California tells us a political party has the means at hand to protect its associational freedoms. The party, California contends, can simply use its funds and resources to support the candidate of its choice, thus defending its doctrinal positions by advising the voters of its own preference. To begin with, this does not meet the parties’ First Amendment objection, as the Court well explains. Ante at 580-581. The important additional point, however, is that, by reason of the Court’s denial of First Amendment protections to a political party’s spending of its own funds and resources in cooperation with its preferred candidate, see Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604 (1996), the Federal Government or the State has the power to prevent the party from using the very remedy California now offers up to defend its law.

Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90 Stat. 488, 2 U.S.C. § 441a(a)(7)(B)(i) ("[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate"). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U.S. at 624-625 (opinion of BREYER, J.). Two Justices in dissent said that "all money spent by a political party to secure the election of its candidate" would constitute coordinated expenditures, and would have upheld the statute as applied in that case. See id. at 648 (opinion of STEVENS, J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office

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.

When the State seeks to regulate a political party’s nomination process as a means to shape and control political doctrine and the scope of political choice, the First Amendment gives substantial protection to the party from the manipulation. In a free society, the State is directed by political doctrine, not the other way around. With these observations, I join the opinion of the Court.

1. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) (observing that the United States Constitution grants States a broad power to prescribe the manner of elections for certain federal offices, which power is matched by state control over the election process for state offices). In California, the Secretary of State administers the provisions of the State Elections Code and has some supervisory authority over county election officers. Cal.Govt.Code Ann. § 12172.5 (West 1992 and Supp. 2000). Primary and other elections are administered and paid for primarily by county governments. Cal.Elec.Code Ann. §§ 13000-13001 (West 1996 and Supp. 2000). Anecdotal evidence suggests that each statewide election in California (whether primary or general) costs governmental units between $45 million and $50 million.

2. Prominent members of the founding generation would have disagreed with the Court’s suggestion that representative democracy is "unimaginable" without political parties, ante at 574, though their anti-party thought ultimately proved to be inconsistent with their partisan actions. See, e.g., R. Hofstadter, The Idea of a Party System 2-3 (1969) (noting that "the creators of the first American party system on both sides, Federalists and Republicans, were men who looked upon parties as sores on the body politic"). At best, some members of that generation viewed parties as an unavoidable product of a free state that were an evil to be endured, though most viewed them as an evil to be abolished or suppressed. Id. at 16-17, 24. Indeed, parties ranked high on the list of evils that the Constitution was designed to check. Id. at 53; see The Federalist No. 10 (J. Madison).

3. The Court’s disagreement with this interpretation of La Follette is specious. Ante at 576-577, n. 7 (claiming that state-imposed burden actually at issue in La Follette was intrusion of those with adverse political principles into party’s primary). A more accurate characterization of the nature of La Follette’s reasoning is provided by Justice Powell:

In analyzing the burden imposed on associational freedoms in this case, the Court treats the Wisconsin law as the equivalent of one regulating delegate selection, and, relying on Cousins v. Wigoda, 419 U.S. 477 (1975), concludes that any interference with the National Party’s accepted delegate selection procedures impinges on constitutionally protected rights.

Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 128 (1981) (dissenting opinion). Indeed, the La Follette Court went out of its way to characterize the Wisconsin law in this manner in order to avoid casting doubt on the constitutionality of open primaries. Id. at 121 (majority opinion) (noting that the issue was not whether an open primary was constitutional, but "whether the State may compel the National Party to seat a delegation chosen in a way that violates the rules of the Party"). The fact that the La Follette Court also characterizes the Wisconsin law at one point as a law "impos[ing] . . . voting requirements" on delegates, id. at 125, does not alter the conclusion that La Follette is a case about state regulation of internal party processes, not about regulation of primary elections. State-mandated intrusion upon either delegate selection or delegate voting would surely implicate the affected party’s First Amendment right to define the organization and composition of its governing units, but it is clear that California intrudes upon neither in this case. Ante at 570-571, n. 2.

La Follette and Cousins also stand for the proposition that a State’s interest in regulating at the national level the types of party activities mentioned in the text is outweighed by the burden that state regulation would impose on the parties’ associational rights. See Bellotti v. Connolly, 460 U.S. 1057, 1062-1063, and n. 3 (1983) (STEVENS, J., dissenting) (quoted in part ante at 577, n. 7). In this case, however, California does not seek to regulate such activities at all, much less to do so at the national level.

4. Indeed, the primary serves an essential public function given that, "[a]s a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations [by the major political parties] have been made." Morse v. Republican Party of Va., 517 U.S. 186, 205-206 (1996) (opinion of STEVENS, J.); see also United States v. Classic, 313 U.S. 299, 319 (1941).

5. Contrary to what the Court seems to think, I do not rely on Terry and Allwright as the basis for an argument that state accommodation of the parties’ desire to exclude nonmembers from primaries would necessarily violate an independent constitutional proscription such as the Equal Protection Clause (though I do not rule that out). Cf. ante at 573-574, n. 5. Rather, I cite them because our recognition that constitutional proscriptions apply to primaries illustrates that primaries -- as integral parts of the election process by which the people select their government -- are state affairs, not internal party affairs.


The State asserts a compelling interest in preserving the overall integrity of the electoral process, providing secrecy of the ballot, increasing voter participation in primaries, and preventing harassment of voters. But all of those interests go to the conduct of the Presidential preference primary -- not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates.

La Follette, 450 U.S. at 124-125.

7. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 370 (1997) (STEVENS, J., dissenting) (general election ballot access restriction); Bullock v. Carter, 405 U.S. 134 (1972) (primary election ballot access restriction).

8. When coupled with our decision in Tashjian that a party may require a State to open up a closed primary, this intrusion has even broader implications. It is arguable that, under the Court’s reasoning combined with Tashjian, the only nominating options open for the States to choose without party consent are: (1) not to have primary elections, or (2) to have what the Court calls a "nonpartisan primary" -- a system presently used in Louisiana -- in which candidates previously nominated by the various political parties and independent candidates compete. Ante at 585. These two options are the same in practice because the latter is not actually a "primary" in the common, partisan sense of that term at all. Rather, it is a general election with a runoff that has few of the benefits of democratizing the party nominating process that led the Court to declare the State’s ability to require nomination by primary "`too plain for argument.’" Ante at 572; see Lightfoot v. Eu, 964 F.2d 865, 872-873 (CA9 1992) (explaining state interest in requiring direct partisan primary).

9. In his concurrence, JUSTICE KENNEDY argues that the State has no valid interest in changing party doctrine through an open primary, and suggests that the State’s assertion of this interest somehow irrevocably taints its blanket primary system. Ante at 587. The Timmons balancing test relied upon by the Court, ante at 582, however, does not support that analysis. Timmons and our myriad other constitutional cases that weigh burdens against state interests merely ask whether a state interest justifies the burden that the State is imposing on a constitutional right; the fact that one of the asserted state interests may not be valid or compelling under the circumstances does not end the analysis.

10. See La Follette, 450 U.S. at 135-136 (Powell, J., dissenting); cf. Tashjian, 479 U.S. at 215-216, n. 6 (discussing cases such as Rosario v. Rockefeller, 410 U.S. 752 (1973), in which nonmembers’ associational interests were overborne by state interests that coincided with party interests); Bellotti v. Connolly, 460 U.S. at 1062 (STEVENS, J., dissenting) (discussing associational rights of voters).

11. Baldwin v. Trowbridge, 2 Bartlett Contested Election Cases, H.R.Misc.Doc. No. 152, 41st Cong., 2d Sess., 46, 47 (1866) ("[Under the Elections Clause,] power is conferred upon the legislature. But what is meant by `the legislature?’ Does it mean the legislative power of the State, which would include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country? The [C]ommittee [of Elections for the U.S. House of Representatives] have adopted the latter construction").


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Chicago: Kennedy, "Kennedy, J., Concurring," Mobil Oil Exploration, Inc. v. United States, 530 U.S. 604 (2000) in 530 U.S. 567 530 U.S. 587–530 U.S. 590. Original Sources, accessed September 30, 2022,

MLA: Kennedy. "Kennedy, J., Concurring." Mobil Oil Exploration, Inc. v. United States, 530 U.S. 604 (2000), in 530 U.S. 567, pp. 530 U.S. 587–530 U.S. 590. Original Sources. 30 Sep. 2022.

Harvard: Kennedy, 'Kennedy, J., Concurring' in Mobil Oil Exploration, Inc. v. United States, 530 U.S. 604 (2000). cited in 2000, 530 U.S. 567, pp.530 U.S. 587–530 U.S. 590. Original Sources, retrieved 30 September 2022, from