Respondents Brief — Cook v. Gralike

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

IN THE

Supreme Court of the Anited States

REBECCA MCDOWELL COOK,

Petitioner,

Vv.

DONALD J. GRALIKE AND MIKE HARMAN,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF FOR RESPONDENTS

JONATHAN S. FRANKLIN

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5766

ARTHUR A. BENSON II*

GREGG LOMBARDI

ARTHUR BENSON & ASSOCIATES

4006 Central Avenue

P.O. Box 119007

Kansas City, Missouri 64171

(816) 531-6565

*Counsel of Record Counsel for Respondents

EEE ~_—— _.

Nl BEST AVAILABLE COPY) meal

QUESTION PRESENTED

Whether the Constitution permits a state government to

place pejorative and misleading ballot labels next to the

names of candidates for Congress who do not follow, or do

not pledge to follow, the government’s instructions to vote

for a federal constitutional amendment once favored by a

majority of statewide initiative voters.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ..0...0cccscsocssceorscseorscsscsscescese

TABLES OF AUTIBORITIES. ..0..0:ccsecsccoccesseccessccsccsscese

THE LABEL LAW EXCEEDS THE

STATE’S CONSTITUTIONAL AUTH-

A. The Label Law Exceeds the State’s

Power Under the Elections and Qualifi-

B. The History of the Constitution Shows

that the States Have No Delegated

Power to Coerce Federal Legislators

Through Enforceable Instructions.............

1. The Rejection of a “Right to

ET Se

ill

TABLE OF CONTENTS—Continued

2. Pre-Constitutional History Does

Not Support the Validity of the

eS A cccnenensnsnenseremmennesemnnnaesininians

3. Post-Constitutional History Does

Not Support the Validity of the

4. The Label Law Violates Principles

0, ee

Il. THE LABEL LAW VIOLATES THE

FIRST AMENDMENT. ....cccccccccscccssccssssscscccesee

A. The Label Law is Subject to Strict

ID cncscenesnenerazsnsssnasiannnnmimenisnensameneien

B. The Label Law Cannot Withstand Strict

ID cccnsssnscersssenssnsnensmntanansnmsenensensensecen

Il. THE LABEL LAW VIOLATES THE

SPEECH OR DEBATE CLAUSE...................

IV. THE LABEL LAW CONTRAVENES

pi FL

ee tk seenenmnaneneetannnanenesinians

Page

TABLE OF AUTHORITIES

Cases:

Abood v. Detroit Board of Education, 431 U.S.

Se TP ccsccncnncsnssdnsenaninsnnenineninantaniatentiens

Advisory Opinion to the Attorney General Re

Term Limits Pledge, 718 So. 2d 798 (Fla.

FEED conscensscovsntnenieinanssensemninsonstininssesinmenasenenecsees

AFL-CIO v. Eu, 686 P.2d 609 (Cal. 1984)

Anderson v. Martin, 375 U.S. 399 (1964)

Barker v. Hazeltine, 3 F. Supp. 2d 1088

SE UREIEED SUI erheincieniarinrenetindnaeadnaiinentdiiteinieasiaesiniiina

Bond v. Floyd, 385 U.S. 116 (1966) .............000000..

Boos v. Barry, 485 U.S. 312 (1988).........ccccccccc0ee.

Bowsher v. Synar, 478 U.S. 714 (1986)................

Bramberg v. Jones, 978 P.2d 1240 (Cal. 1999)...

Brown v. Hartlage, 456 U.S. 45 (1982) ................

Brown & Williamson Tobacco Corp. v. Wil-

liams, 62 F.3d 408 (D.C. Cir. 1995)

Burdick v. Takushi, 504 U.S. 428 (1992)

Burson v. Freeman, 504 U.S. 191 (1992)

California Democratic Party v. Jones, 120 S.

i ee EE scrsrsecnnnsneentnnennienimennntinseneineseiens

Central Hudson Gas & Electric Corp. v. Pub-

lic Service Commission, 447 U.S. 557 (1980) ...

Chandler v. Miller, 520 U.S. 305 (1997)

Citizens Against Rent Control v. City of Ber-

keley, 454 U.S. 290 (1981) ..cccccccccecsssesesssesessseeoe

Clarke v. United States, 886 F.2d 404 (D.C.

Cir. 1989), vacated as moot, 915 F.2d 699

(D.C. Cis. 1990) (een Bam) ....2.ccccrccscccccccsccssesseeee

Anderson v. Celebrezze, 460 U.S. 780 (1983)......

eee eee eee eee

Baker v. Carr, 369 U.S. 186 (1962)...........ccccce000e

Buckley v. Valeo, 424 U.S. 1 (1976) .......0.ccccccc0ee.

TABLE OF AUTHORITIES—Continued

Page

Consolidated Edison Co. v. Public Service

Commission of New York., 447 U.S. 530

CO cerecnermentensctsseeamnenmemnncnnenmnnemmanneen 38

Dandridge v. Williams, 397 U.S. 471 (1970)........ 13

Dillon v. Gloss, 256 U.S. 368 (1921)...............000 49

Dodge v. Woolsey, 59 U.S. 331 (1855)...........:0++ 48

Donovan v. Priest, 931 S.W.2d 119 (Ark.

1996), cert. denied, 519 U.S. 1149 (1997)......... 7, 50

Eastland v. United States Servicemen’s Fund,

BS en 45, 46

Foster v. Love, 522 U.S. 67 (1997)............cccee000 13

Georges v. Carney, 691 F.2d 297 (7th Cir.

FE scciencacniemnesinnmssetintnstienninntnienenemndmmemmeianes 40

Gravel v. United States, 408 U.S. 606 (1972)....43, 44, 46

Grayned v. City of Rockford, 408 U.S. 104

CU ccnssmnentnscninenneimenemmemememnenen 41

Harper & Row Publishers, Inc. v. Nation En-

terprises, 471 U.S. 539 (1985) ........ccccceeeeeeeenees 35

Hawke v. Smith, 253 U.S. 221 (1920)............0+. 47, 48, 50

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378

OF FEF cccnsesssemnsnnscenssceseansnnsscnennseransnsustasasentnnensierss 47

Humphrey's Executor v. United States, 295

CED, Ge Ce erence nenscensssnsssscsersenssecessssesssesesssens 49

Huriey v. Irish-American Gay, Lesbian & Bi-

sexual Group of Boston, Inc., 515 U.S. 557

A ccncsnenssinernteninnneemannnmannanesmain 42

Hutchinson v. Proxmire, 443 U.S. 111 (1979)...... 44

In re Initiative Petition No. 364, 930 P.2d 186

ee 7

In re Opinion of the Justices, 148 So. 107 (Ala.

FD sescsaneesenemnsnemsrereemmmemnemapmemnnnenen 32

Immigration & Naturalization Service v.

Chadha, 462 U.S. 919 (1983) .........ccccceeeeeeeeeees 25

Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123 (1951) .......ccccccceeeeeeeeees 6

TABLE OF AUTHORITIES—Continued

Page

Kilbourn v. Thompson, 103 U.S. 168 (1880)........ 43

Kimble v. Swackhamer, 439 U.S. 1385 (1978)...... 49

League of Women Voters v. Gwadosky, 966 F.

BF ee 7,19

Lehnert v. Ferris Faculty Association, 500

ea: Se Ce cerrrerenecernenieninnenintsteniemntinnines 35

Leser v. Garnett, 258 U.S. 130 (1922)................4. 48

McIntyre v. Ohio Elections Commission, 514

ae Be ee ccrrccnrsetuennsmnninemennennnes 32, 37, 38, 40

Meyer v. Grant, 486 U.S. 414 (1988) .............0008. 39

Miller v. Moore, 169 F.3d 1119 (8th Cir.

SIvEE a cnncinhisectninbninnintneneuieitnnaieetsimaaininiienan 6, 7, 17, 26

Mills v. Alabama, 384 U.S. 214 (1966) ................ 39

Monitor Patriot Co. v. Roy, 401 U.S. 265

eer 39

Moore v. Ogilvie, 394 U.S. 814 (1969)............0006. 5

Morrissey v. State, 951 P.2d 911 (Colo. 1998)..... 7

National Association for the Advancement of

Colored People v. Button, 371 U.S. 415

TE inetennseinseanimmeenenesanniineiabeasmmensbennnmeione 41

Newberry v. United States, 256 U.S. 232

| 13, 16

New York v. United States, 505 U.S. 144

Era cnnsivernsnsuinencensiuancinpsinsiiiinnmmdsniamineuntenmess 33

Ohio ex rel. Davis v. Hildebrandt, 241 U.S.

BE a ccrenncesssrenemeememenmaetnen 12

Opinion of the Justices, 160 N.E. 439 (Mass.

SEE cccrsninnisninemisaseneisiatacsanesilieiannininnniuidiabiibinuees 48

Opinion of the Justices, 673. A.2d 693 (Me.

ED cocessnsrenensntencemmntinenumensnnguamannneeeniuaston 7, 33

Pacific Gas & Electric Co. v. Public Utilities

Commission, 475 U.S. 1 (1986) ...........cccc2.e000008 35, 36

Police Department of Chicago v. Mosley, 408

ee We Ge renccncenteninmnidbaninmncmeiineinentinns 36

Printz v. United States, 521 U.S. 898 (1997)........ 32, 33

Vii

TABLE OF AUTHORITIES—Continued

Page

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).... 38, 43

Ray v. Blair, 343 U.S. 214 (1952).......:cccccceeeeeeeeees 19, 20

Riley v. National Federation of the Blind of

North Carolina, Inc., 487 U.S. 781 (1988)... 16, 40, 43

Rosario v. Rockefeller, 410 U.S. 752 (1973)........ 5

Rosenberger v. Rector & Visitors, 515 U.S.

BE Ge ccnesencercemssnerensnersstasensmnecmsmeenasenstes 38

Simon & Schuster, Inc. v. Members of New

York State Crime Victims Board, 502 U.S.

eee 38

Simpson v. Cenarrusa, 944 P.2d 1372 (Idaho

Ee ccncrenctenidnntenepnenneimmentaeemmmennimnenene 7

Smiley v. Holm, 285 U.S. 355 (1932)......ccccceeeceeees 13

Spallone v. United States, 493 U.S. 265 (1990)..... 35, 46

State ex rel. McCue v. Blaisdell, 118 N.W. 141

SE SII edennenescreneserennsenmimiananesnenammasnmmensione 32

State v. Waltermire, 691 P.2d 826 (Mont.

FE ccinsnnnessennmeteensenuseumememmnmmamnvannnatosnens 49

Stella v. Kelley, 63 F.3d 71 (1st Cir. 1995)........... 35

Storer v. Brown, 415 U.S. 724 (1974) ..........00000008 5,37

Supreme Court of Virginia v. Consumers Un-

ion of the United States, 446 U.S. 719 (1980) ... 46

Tashjian v. Republican Party, 479 U.S. 208

ETE ccceninsidesinecunpnevectinnannimeanenemneenmmusenniensnnen 37

Tenney v. Brandhove, 341 U.S. 367 (1951).......... 47

Thornhill v. Alabama, 310 U.S. 88 (1940) ........... 37

Timmons v. Twin Cities Area New Party, 520

ks Beet Ce ettencennncsnensmnemsmmedmsenemannmenennntess 19, 40

Turner Broadcasting System, Inc. v. Federal

Communications Commission, 512 U.S. 622

| ee 38

United States v. Brewster, 408 U.S. 501 (1972)... 46

United States v. Classic, 313 U.S. 299 (1941)...... 13

United States v. Johnson, 383 U.S. 169 (1966) .... 45

Vili

TABLE OF AUTHORITIES—Continued

Page

United States v. Playboy Entertainment Group,

Inc., 120 S. Ct. 1878 (2000) .........ceceeeeseeerreeeeeees 38, 39

United States v. Sprague, 282 U.S. 716 (1931)... 48

United States v. Verdugo-Urquidez, 494 U.S.

BBD CBGBOD ccceccsccsesscesssevccescsscessssesscsesesnsnssscsooueses 48

U.S. Term Limits, Inc. v. Thornton, 514 U.S.

TID (ADDS) nccccccecceesecsssresescescccssoosssscsscsvsosssssesooees passim

Ward v. Rock Against Racism, 491 U.S. 781

CRED ccccerarsccssesescenscesenedenesneesnnesnsnensessesovsenesscssoes 13

West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943) .......cceccceeeereeeeeeees 35

Whitney v. California, 274 U.S. 357 (1927)......... 39

Wooley v. Maynard, 430 U.S. 705 (1977) ........0++. 36

Constitutional Provisions:

Elections Clause, U.S. Const. art. I, § 4, cl. 1 ....... 12

Qualifications Clauses, U.S. Const. art. I, § 2,

GB, B, OB. B eccacecesoscceseseserccscesesesnvenssssssososcnssese 20

Republican Guaranty Clause, U.S. Const. art.

BY, OG, BB cccccscerscccorecesccsccssesenvssensnsssssesessosssosoee 25

Speech or Debate Clause, U.S. Const. art. I, §

GB, B ccccensnsocnnssesstsatecsestesetcsscasnumnsccsnsssonmencsanicens 43

CLG, Cmmmet, GIGI, BE nccccccccscccccecccosescocesccscscescsecsoces 34

yy 25

ey 48

is Ge FF SS CY > 25

HbR. WF FR OS | eee 20

LEG. ere 47

Mo. Const. art. VIIL, § 15.0.0... ccccccccsseeseereeeeees 1, 3, 17,21

“Ge FF 8, §) 3

x 1, 44

Mo. Const. art. VIII, § 17(1) .......:cccccscceseseeeeeeeeees 3

Mo. Const. art. VIII, § 17(2) .......:ccsssccceeseeeeeeees 3, 4, 9, 44

Mo. Const. art. VII], § 17(3) ...........:sccccceeeerereees 3

TABLE OF AUTHORITIES—Continued

Page

i, GE, GE, Wilts 0 Si crceseneccsecsscvsescnsesesersecesese 3

eS 8 fh | eee 4

i GD, GR, Waris OF SI neeserensecesessesensocssensceses 4,6

nh Ge, GE, Wrath OP WUE nsesccccecsenceccnensessscsansees 4

Mo. Const. art. VIII, § 19(2) ..........:cscsscssssesercseees 4-5

ge FF 8, 8h) ) 5

ee 8 en 5

Statutory Provisions

ene 43

a, BRD. TERE, BB BI Fa Wee cccerccscccsescccsssssscccscces 42

ee 43

1 W. & M. Sess. 2, ch. 2 (1689)..........ccsccsssereees 45

Legislative and Executive Materials

Alaska Op. Att’y Gen. No. 2 (1998) .........cccceseeee 7

1 Annals of Congress 761-767 (Joseph Gales

EE, Tir scithaciicnetutlictedionsiiciemeineiensennmerennel 2, 22-25, 26

30 Annals of Congress 577 (1817)........:cccccereees 31

Cong. Globe, 35th Cong., Spec. Sess. of the

ST ITI nctenencsndnnenesenstentsccssesennesensates 28

141 Cong. Rec. 9748 (1995) .0.....ccccesesesesereeeeeeees 10

143 Cong. Rec. H418-H419 (Feb. 11, 1997)........ 11,19

143 Cong. Rec. H458-H512 (Feb. 12, 1997)... passim

143 Cong. Rec. E277 (Feb. 13, 1997) .........ccccceeee 4,10

Nevada Att’y Gen. Op. No. 2000-11 ..........ceeeeee 7

Senate Journal (Sept. 3, 1789)..........ccccseeeereeerees 22

Other Authorities:

Akhil Reed Amar, The Bill of Rights as a Con-

stitution, 100 Yale L.J. 1131 (1991) .............0.. 25, 26

Vik D. Amar, The Senate and the Constitution,

eh. (88 of.) 31

TABLE OF AUTHORITIES—Continued

Page

Articles of Confederation, art. V ............:scsceeeeees 34

Benjamin D. Black, Developments in the State

Regulation of Major and Minor Political

Parties, 82 Cornell L. Rev. 109 (1996).............. 16

Thomas E. Cronin, Direct Democracy

(19BD) ...cccecrarcreesersersccscrsccssessesecsscsseesessesesees 26, 28, 29, 30

David P. Currie, The Constitution in Congress:

The First Congress and the Structure of

Government, 1789-1791, 2 U. Chi. L. Sch.

Roundtable (1995)..........cccccsccccsscssscesrerereceesensees 26, 30

The Debates in the Several State Conventions

on the Adoption of the Federal Constitution

(Jonathan Elliot ed., 2d ed. 1836) ............00+ 29, 30

William E. Dodd, The Principle of Instructing

United States Senators, 1 S. Atlantic Q. 326

(1 DOR) <ncrcrersesersesereserorscescsencesccsnenssenesensnesessscsssoess 31

Maura Dolan, Initiative on Term-Limits Loy-

alty Voided, L.A. Times, July 9, 1999 ............... 7,8

Bob Egelko, Candidates Face Ballot Labeling

Over Term Limits, San Diego Union-Tnb.,

Aug. 23, 1996.............ccscrercecsesscssnssssssssnessereseorers 8

Bob Egelko, Term-Limits Initiative Struck

Down, Orange County Register, July 9, 1999.... 8

The Federalist Papers (Clinton Rossiter ed.,

| enn 16, 23, 30, 49

The Founders’ Constitution (Philip B. Kurland

& Ralph Lerner eds., 1987)........:..cccscseeeeeeseeeeees 29

Elizabeth Garrett, The Law and Economics of

“Informed Voter” Ballot Notations, 85 Va.

L. Rav. BSED CIGDD) nncercccecereseccccesscessccssssscceseseses 8, 16, 19

Journal of William Maclay (Edgar S. Maclay

0 OO 31

Russell Kirk, The Conservative Constitution

CRD eerecnceccesrevenecensesescensnsnsaujenonmneysnsnsncenssanecess 29

TABLE OF AUTHORITIES—Continued

Page

Saul Levmore, Precommitment Politics, 82 Va.

ices cineca atnceciaciattiinn 26, 30

The Records of the Federal Convention of

1787 (Max Farrand ed., 1966)......................00008 23, 45

Robert J. Reinstein & Harvey L. Silverglate,

Legislative Privilege and the Separation of

Powers, 86 Harv. L. Rev. 1113 (1973).............. 45

Robert Salladay, Hot Battle for East Bay Sen-

ate Seat, San Fran. Examiner, Aug. 27, 1998,

a iescicenaecinenieadennnaineientiniamnniniiaibiniintininn 8

Joseph Story, Commentaries on the Constitu-

tion of the United States (1833) ...................... 16, 34, 50

Cass R. Sunstein, Democracy and the Problem

i, en 26

Roy Swanstrom, Jhe United States Senate

1787-1801, S. Doc. No. 87-64 (1961)................ 30, 31

Thaai Walker, Perata Wins Assembly, Senate

Seats, San Fran. Chron., Nov. 4, 1998 ............... 8

Noah Webster, Government, The American

Magazine 204 (Mar. 1788)................::csssceeeeseeees 26

Webster’s Third New International Dictionary

Saini cetebheeeilieishitadaldsehiiiaieeideiahin 17, 18

George F. Will, Save Us From the Purists,

I 26

Carl Wittke, The History of English Parlia-

mentary Privilege (1970)...........cccccccscssessesssssesees 45

The Works of James Wilson (Robert Green

CN, CIIUD iiccisiessicieicinbsshinicimsiennsiiiiiginton 46

The Works of John Adams (Charles F. Adams

iia: EET iivsniiliuissienndiiahonatieniieciiemenaniianiendiminmananianiiin 29

IN THE

Supreme Court of the United States

No. 99-929

REBECCA MCDOWELL COOK,

Petitioner,

DONALD J. GRALIKE AND MIKE HARMAN,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF FOR RESPONDENTS

Through the law challenged in this case (the “Label

Law’’), the State of Missouri has attempted to skew the out-

come of federal elections and federal legislative debate by

handicapping candidates who disagree with the government’s

preferred position on a single issue. The Law “instructs”

federal representatives to use “all of [their] delegated powers

to pass” a proposed federal constitutional amendment ad-

dressing term limits. Mo. Const. art. VIII, § 17. If candi-

dates do not pledge to follow this legal command, or if

elected representatives do not, in the view of the Missouri

Secretary of State, follow the command, the government will

place a negative label—either “DECLINED TO PLEDGE

TO SUPPORT TERM LIMITS” or “DISREGARDED

VOTERS’ INSTRUCTION ON TERM LIMITS’”—next to

their names on the ballot when they run for federal office.

The sole expressed intent of the Label Law is to cause the

adoption of the proposed amendment. /d. § 15.

As shown below, the Label Law contravenes at least five

provisions of the federal Constitution. The reasons for each

of those violations, however, are much the same: the Consti-

tution prevents the State from using its control over the ballot

to skew political debate and handicap federal candidates who

do not support the government’s preferred position on a sin-

gle issue. This case is not, as petitioner (the “State”) sug-

gests, about the night of the “people” to express their views.

Each person in Missouri has the unquestioned right to inform

candidates and legislators of his or her views, and to vote ac-

cordingly. But the state government may not place its thumb

on the electoral scale in an attempt to interfere with the free-

dom of federal candidates to decide for themselves on which

issues they will campaign, and how they will vote if elected.

Shortly after the framing of the Constitution, during the

debates in Congress on what would become the Bill of

Rights, James Madison made clear that enforceable instruc-

tions issued by States to federal representatives were incom-

patible with the new constitutional system. As he stated,

permitting such instructions “obliges us to run the risk of

losing the whole system.” 1 Annals of Congress 767 (Joseph

Gales ed., 1789). If upheld, the Label Law will have pre-

cisely that feared result. It will undoubtedly spawn other

efforts by state governments to use the ballot to bully federal

candidates and representatives who hold disfavored views on

other issues, and will transform the ballot from a neutral

vehicle for the expression of voter preferences into a mecha-

nism for state coercion of campaign and legislative debate.

STATEMENT OF THE CASE

1. Enactment of the Label Law. In U.S. Term Limits, Inc.

v. Thornton, 514 U.S. 779 (1995), this Court held that the

Constitution does not permit a State to impose term limits on

Members of Congress. The Court accordingly advised that,

if such term limits are to be enacted, they “must come not by

legislation adopted either by Congress or by an individual

State, but rather—as have other important changes in the

electoral process—through the amendment procedures set

forth in Article V.” Jd. at 837 (footnote omitted).

Nevertheless, following Thornton term limits proponents

attempted once again to achieve their objective through state

legislation. In November 1996, those proponents succeeded

in enacting the Label Law through voter initiative. That law,

enacted as an amendment to the Missouri Constitution, has

three basic components. First, the Law states that it is tine

intention of the “people of Missouri” that the Label Law

“lead to the adoption of” a proposed term limits amendment

to the United States Constitution. Mo. Const. art. VIII, § 15.

The Law sets forth the text of that proposed amendment,

which would limit Senators to two terms and Representatives

to three terms, although States could alter those limits by

amending their own constitutions. Jd. § 16.

Second, the Label Law expressly “instructs” each Senator

and Representative elected from Missouri “to use all of his or

her delegated powers to pass the Congressional Term Limits

Amendment,” id. § 17(1), and asks non-incumbent candi-

dates to “pledge” to do the same if elected, id. § 18. The

instruction is enforced when the person next runs for office.

A Member of Congress who fails to comply with any one of

a long list of directives shall have the label

“DISREGARDED VOTERS’ INSTRUCTION ON TERM

LIMITS” printed on every primary and general election

ballot next to his or her name. /d. § 17(2) (captitalization in

original). This labeling provision remains in effect until

Congress passes the proposed amendment. /d. § 17(3).

Under the Label Law, a Senator or Representative is la-

beled if he or she (1) “fails to vote in favor” of the proposed

amendment; (2) “fails to second the proposed [amendment] if

it lacks for a second”; (3) “fails to propose or otherwise bring

to a vote of the full legislative body the proposed [amend-

ment]” if it lacks such a sponsor; (4) “fails to vote in favor of

all votes bringing the proposed [amendment] before any

committee or subcommittee”; (5) “fails to reject any attempt

to delay, table, or otherwise prevent a vote by the full legis-

lative body of the proposed [amendment]”; (6) “fails to vote

against any proposed constitutional amendment that would

establish longer term limits than those in the proposed

[amendment] regardless of any other actions in support of the

proposed [amendment]”; (7) “sponsors or cosponsors any

proposed constitutional amendment or law that would

increase term limits beyond those in the proposed [amend-

ment]”; or (8) fails to ensure that all votes on the proposed

amendment are made public. Jd. § 17(2)(a)-(h).

The Label Law also affords non-incumbent candidates for

Congress the “opportunity” to take a term limits “pledge.”

Id. § 18(1). Candidates who do not take the pledge shall

have the label “DECLINED TO PLEDGE TO SUPPORT

TERM LIMITS” printed beside their names on every primary

and general election ballot. /d. (capitalization in original).

To avoid the label, a non-incumbent must pledge as follows:

I support term limits and pledge to use all my legislative

powers to enact the proposed Constitutional Amendment

set forth in the Term Limits Act of 1996. If elected, |

pledge to vote in such a way that the designation

“DISREGARDED VOTERS’ INSTRUCTION ON

TERM LIMITS” will not appear adjacent to my name.

[Jd. § 18(3).]

Because of these labeling provisions, the Label Law has

often been referred to as the “Scarlet Letter” law— including

by the Missouri Secretary of State’s office and Members of

Congress from Missouri. See, e.g., J.A. 34; 143 Cong. Rec.

H494 (daily ed. Feb. 12, 1997) (statement of Rep. Blunt); id.

at E277 (Feb. 13, 1997) (statement of Rep. Emerson).

Third, the Label Law makes Missouri’s Secretary of

State—an elected, political official—responsible for deter-

mining whether a candidate shall receive either of the labels.

Mo. Const. art. VIII, § 19(1). In making that determination,

the Secretary is required to consider public comments. /d.

§ 19(2). The process, however, is biased in favor of labeling.

If the Secretary decides that a particular candidate is not to be

labeled, any “elector” (voter) may appeal that decision to the

Missouri Supreme Court, and in such actions, the burden is

on the Secretary “to demonstrate by clear and convincing

evidence that the candidate * * * should not” be labeled. /d.

§ 19(5). But if the Secretary decides that a candidate is to be

labeled, the candidate may appeal, and the burden is on the

candidate to show under the clear and convincing standard

that the label should not be applied. /d. § 19(6).

2. Invalidation of the Label Law. Respondent Donald J.

Gralike, a Democratic candidate for the House of Represen-

tatives from Missouri during the 1998 election, filed suit

against petitioner, Missouri’s Secretary of State, seeking to

enjoin enforcement of the Label Law. He made clear that his

political beliefs prevented him from taking the term limits

pledge, and he challenged the constitutionality of the Label

Law, including the pledge, the instructions and label incorpo-

rated within the pledge, and the label that would be imposed

on him for not taking the pledge. See J.A. 3-14.!

The District Court granted summary judgment in Gralike’s

favor, holding that the Label Law violated four separate

constitutional provisions: the Qualifications and Elections

Clauses, Article V, and the First Amendment. Pet. App.

A27-A35, A40-52, A58-A62. The Eighth Circuit affirmed,

| While the case was on appeal, Gralike withdrew from the 1998

election, and respondent Mike H*rman, another congressional

candidate, intervened as an appellee. Harman was also a candidate

in the 2000 Republican congressional primary, and both respon-

dents intend to run again in the future. But regardless of respon-

dents’ current status or plans, this case is not moot because it 1s

well settled that election law challenges such as this one are

“capable of repetition, yet evading review.” See, e.g., Storer v.

Brown, 415 U.S. 724, 737 n.8 (1974); Rosario v. Rockefeller, 410

U.S. 752, 756 n.5 (1973); Moore v. Ogilvie, 394 U.S. 814, 816

(1969). Cf. Chandler v. Miller, 520 U.S. 305, 313 n.2 (1997).

holding in addition that the Law violated the Speech or

Debate Clause. Pet. App. Al-A23.?

3. Label Laws in Other States. Missouri was not the only

State to enact such a law—and the Eighth Circuit was not the

only court to invalidate it. Indeed, no court has upheld such a

law. In 1996, voter initiatives quite similar to the Missouri

law were approved in eight other States—Alaska, Arkansas,

Colorado, Idaho, Maine, Nebraska, Nevada, and South

Dakota. Six of those other laws were challenged in court and

invalidated on various federal and state constitutional

2 The State rightly does not dispute respondents’ standing.

Respondents have standing to challenge the provisions of the

Label Law imposing a negative label on them for failing to take

the term limits pledge, because that label would harm their elec-

toral chances, and deter or alter their campaign plans. See, e.g.,

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 141

(1951) (upholding standing to challenge political label); J.A. 7

(complaint). As the District Court held, respondents also have

standing to challenge the instructions to incumbents, and the labels

imposed for not following them, because the pledge applicable to

respondents expressly incorporates the incumbent instructions and

labels. See Pet. App. 62a. The pledge reads, in part, “If elected, I

pledge to vote in such a way that the designation DISRE-

GARDED VOTERS’ INSTRUCTION ON TERM LIMITS’ will

not appear adjacent to my name.” Mo. Const. art. VIII, § 18(3).

Thus, non-incumbent candidates suffer a present injury-in-fact

directly traceable to the instruction provisions. If those provisions

are unconstitutional, the pledge is also void, and respondents can-

not be forced to suffer a negative label for not taking that pledge.

The incumbent provisions also directly affect non-incumbents

because the provisions deter term limits opponents from running at

all, and harm their ability to raise funds and attract support. See

J.A. 7 (instructions would deter Gralike from running). Finally,

respondents also have standing as voters to challenge the incum-

bent provisions, which harm their ability to elect a candidate who

is capable of representing their views. See Burdick v. Takushi, 504

U.S. 428, 433 (1992); Baker v. Carr, 369 U.S. 186, 206 (1962);

Miller v. Moore, 169 F.3d 1119, 1123 (8th Cir. 1999).

grounds.* And in the other two states, the state attorneys

general declared that the laws could not be enforced consis-

tent with the federal Constitution. See Alaska Op. Att’y Gen.

No. 2 (1998); Nevada Att’y Gen. Op. No. 2000-11. In 1998,

California became the last State to adopt a label law, known

as Proposition 225, and that law, too, was held unconstitu-

tional. See Bramberg v. Jones, 978 P.2d 1240 (Cal. 1999).

4. The Label Law’s Effect on Elections. Only Califur-

nia’s label law was in effect long enough for it to be applied

in an election before it was struck down. One of the State’s

amici contends that California’s experience supports the

notion that the ballot labels are not coercive. See Initiative &

Referendum Inst. Br. 7. In fact, election results which that

amicus omits from its brief show that, as one observer noted,

“the short-lived measure may have had a major impact” on a

State legislative race. Maura Dolan, /nitiative on Term-Limits

Loyalty Voided, L.A. Times, July 9, 1999, at A3.

Proposition 225 (which applied to both state and federal

candidates) was enforced in a special election held in 1999 to

fill the vacant 16th District seat in the state Assembly. The

three Democratic candidates in the race were labeled

“DECLINED TO PLEDGE TO SUPPORT TERM LIM °S,”

but the Green Party candidate (Audie Bock) took the pledge

and was not labeled. /d. In the four-way contest, the former

mayor of Oakland (Elihu Harris) received a plurality of the

vote—48.8%—and soundly beat his two Democratic rivals,

but was forced into a runoff with Bock, who had received

3 See Miller, 169 F.3d 1119; Barker v. Hazeltine, 3 F. Supp. 2d

1088 (D.S.D. 1998); League of Women Voters v. Gwadosky, 966

F. Supp. 52 (D. Me. 1997); Donovan v. Priest, 931 S.W.2d 119

(Ark. 1996), cert. denied, 519 U.S. 1149 (1997); Morrissey v.

State, 951 P.2d 911 (Colo. 1998); Simpson v. Cenarrusa, 944 P.2d

1372 (Idaho 1997); see also Opinion of the Justices, 673 A.2d 693

(Me. 1996). In addition, in Oklahoma an initiative was invalidated

before it was put to a vote. See Jn re Initiative Petition No. 364,

930 P.2d 186 (Okla. 1996).

only 8.7% of the vote. Harris was widely expected to win the

runoff by a large margin, but in “a major upset” Bock de-

feated Harris by only 300 votes, becoming the first person

from her party ever elected to a state legislature. /d. An

assistant to Bock stated publicly that the label probably

helped defeat Harris: “ ‘Did 300 people think that was an

important thing?’ * * * ‘Probably.’ ” Jd. See also Bob

Egelko, Term-Limits Initiative Struck Down, Orange County

influenced the outcome” of the election).4

Thus, the public record confirms the obvious: that the

ballot label can cost votes, and thus will have a coercive

effect on candidates and their campaigns. See Elizabeth Gar-

rett, The Law and Economics of “Informed Voter” Ballot No-

tations, 85 Va. L. Rev. 1533, 1554 (1999) (“ballot notations

may exert a significant influence on electoral outcomes”).

5. The Label Law’s Effect on Members of Congress.

The various label laws also had a clear impact on Members

of Congress. Shortly after those laws were enacted, Con-

gress considered proposed term limits amendments to the

Constitution. See 143 Cong. Rec. H458-H512 (daily ed. Feb.

12, 1997). The base proposal, offered by Rep. McCollum,

would have limited Representatives to six terms.

4 Proposition 225 was also in effect for the 1998 election for

California’s 9th Senate District seat. That race pitted a labeled

Democrat against a labeled Peace and Freedom Party candidate

and an unlabeled Republican. See Bob Egelko, Candidates Face

Ballot Labeling Over Term Limits, San Diego Union-Tnib., Aug.

23, 1998, at A3. That the labeled Democrat won the general

election says very little, however, because the 9th District is “over-

whelmingly Democratic.” Thaai Walker, Perata Wins Assembly,

Senate Seats, San Fran. Chron., Nov. 4, 1998, at A23. See also

Egelko, supra. The labels also made no difference in the outcome

of the Democratic primary since all three of the candidates in that

race were labeled. See Robert Salladay, Hot Battle for East Bay

Senate Seat, San Fran. Examiner, Aug. 27, 1998, at AS.

The term limits amendment contained in the label laws, by

contrast, would limit Representatives to only three terms, and

each proposed amendment was slightly different from the

others. Thus, to accommodate Representatives from States

with such laws, the House voted on seven other proposed

amendments, each of which used the exact language required

by a state label law.° Under those laws, however, legislators

who vote for any amendment that would allow representa-

tives to serve more than three terms—even if they a/so vote

in favor of the shorter limits—are branded as having “DIS-

REGARDED VOTERS’ INSTRUCTIONS.” See, e.g., Mo.

Const. art. VIII, § 17(2)(f). As the sponsor of one term limits

bill explained: “Let us say you are from Missouri * * *. If

you vote for the 6-year bill as required in the initiative and

you also vote for my 8-year bill, your voters will be told that

you do not support term limits on the next ballot.” 143

Cong. Rec. H462 (Feb. 12, 1997) (statement of Rep. Fowler).

Numerous legislators from states with label laws, who

would otherwise have supported the McCollum proposal,

voted against it because of those laws. As Rep. Hutchinson

of Arkansas stated, he voted against the McCollum proposal

“not because I am opposed to term limits but because this

particular resolution does not comply with the term limit

instructions approved by the voters and the people of Arkan-

sas * * *. Jd. at H486. As he explained:

As a longtime supporter of the concept of term limits, it

was my intent as a new Member of this body to support

and vote for all term limit measures including 6-year,

5 Rep. Blunt, who introduced the Missouri version, explained

thai it would “ensure that members of the Missouri delegation have

the ability to vote for language that meets a verbatim test of [the]

Missouri Amendment.” Jd. at H494. Or as another congressman

put it: “Every State’s Members get to vote on their State’s term

limits so they make them feel better and they do not get the scarlet

letter.” Jd. at H487 (statement of Rep. Frank). In all, the House

voted on 11 proposals, including 7 required by label laws.

8-year, and 12-year limits so as to maximize the pros-

pects for meaningful term limits becoming law. How-

ever, / am instructed by the Arkansas law and will vote

accordingly. |Id. (emphasis added). |

Similarly, Rep. Dickey of Arkansas, who “ha[d] never once

voted against term limits at any time,” reported that he would

vote against some proposed term limits amendments because

he was “duty be ‘ to support” only the Arkansas version.

Id. See also id. at H489 (statement of Rep. McInnis of

Colorado that he “will follow th[e] instructions” and vote

only for the Colorado version); id. at H490 (statement of

Rep. Crapo of Idaho that, although he had previously voted

for the McCollum proposal, he and Rep. Chenoweth “are

doing as instructed by the law of the State of Idaho” and

voting only for the Idaho version).®

Rep. Thune of South Dakota openly acknowledged the

coercive force of the ballot labels. Although he had been a

cosponsor of the McCollum proposal, he explained that “I

had my name removed as a cosponsor” because “I realized

that cosponsoring that resolution likely would have forced a

negative message next to my name on the 1998 ballot.” /d. at

H499. He noted that “[t]o say the least, that notation would

be undesirable to any candidate.” /d.

In the end, the McCollum proposal received 217 votes, id.

at H511, which was ten fewer votes than the same proposal

had received in 1995. See 141 Cong. Rec. 9748 (1995).

Rep. McCollum attributed the setback to the label laws. As

son of Missouri voted in favor of proposals different from the

Missouri law, stating that “[i]f that means I invoke a misleading

scarlet letter, then so be it.” Jd. at E277 (Feb. 13, 1997). But Rep.

Emerson did not think “Missouri’s scarlet letter amendment” was

inconsequential. Jd. On the contrary, she called it “deceptive[ ]”

and a “farce,” and she warned that “ballots will soon be cluttered

with inaccurate information.” Jd.

he stated before the vote, “I think there are far more than 227

Members in this body who are for term limits, and if they had

their free will and did not have the scarlet letters to be put

beside their name(s] in these 9 States * * * they would vote

for this.” 143 Cong. Rec. H510 (Feb. 12, 1997).

A day earlier, he had noted “[h]ow ironic” it would be if

the label laws “gridlock[ed] this body [so that] we never

reach the goal ultimately of getting to term limits.” Jd. at

H418 (Feb. 11, 1997). It appears that the label laws had

precisely that effect. By forcing legislators to support only

their own State’s version of term limits, the laws proved to

be an obstacle to deliberation, compromise, and judgment,

and hurt, rather than helped, the cause of term limits.

SUMMARY OF ARGUMENT

The Label Law—for many of the same reasons—contra-

venes at least five separate constitutional provisions. Under

those provisions, the Label Law is invalid both because

States have no delegated power to destroy the neutrality of

federal elections by singling out preferred issues and candi-

dates on the ballot, and because the State may not use its

control over the ballot to impair the freedom of candidates

and voters to determine for themselves the content of cam-

paign and legislative debate. The ballot is a neutral means

for voters to express their political preferences; it is not a

means for a state government to decide the issues upon which

federal elections will be waged, or to bludgeon candidates

into supporting federal legislation favored by the State.

First, the Label Law exceeds the State’s authority under the

Elections Clause to enact procedural regulations governing

the “Times, Places and Manner” of elections, because the

Law is predicated on the content of candidates’ views, and

seeks to skew elections against a disfavored class. Second,

the Label Law exceeds the State’s authority under the Quali-

7 The Missouri version was defeated 353-72. Jd. at H497.

fications Clauses because it is an indirect attempt to handicap

those disfavored candidates. As the Framers and their con-

temporaries made clear—in rejecting a proposal to create a

“right to instruct” in the Bill of Rights, and elsewhere—the

Constitution did not delegate to States the right to comman-

deer federal legislators through enforceable instructions like

those at issue here. Third, the Label Law violates the First

Amendment because it is a content- and viewpoint-discrimin-

atory attempt by the state government to compel candidates

to speak, and to penalize those who fail to support the State’s

favored viewpoint. It is also impermissibly vague. Fourth,

the Label Law is a facial violation of the Speech or Debate

Clause because it expressly seeks to coerce core legislative

activities of Members of Congress. And fifth, the Label Law

exceeds the State’s role under Article V because it seeks to

circumvent the deliberative function conferred on Congress

in the process of proposing constitutional amendments.

ARGUMENT

I. THE LABEL LAW EXCEEDS THE STATE’S

CONSTITUTIONAL AUTHORITY S

A. The Label Law Exceeds the State’s Power Under

the Elections and Qualifications Clauses

1. The Elections Clause delegates to state “Legislature[s]”

the power to regulate “[t]he Times, Places and Manner of

holding Elections for Senators and Representatives,” subject

to Congress’s right to make or alter such laws (except as to

the places of choosing Senators). U.S. Const. art. I, § IV, cl.

1.8 As this Court has held, that delegation is the only power

8 Relying on Ohio ex. rel. Davis v. Hildebrandt, 241 U.S. 565

(1916), the State argues that this power delegated to state /egisla-

tures can be exercised by popular referendum. Pet. Br. 38 n.46.

Davis, however, rested on the fact that Congress had by statute

authorized a referendum pursuant to its own Elections Clause

power. 241 U.S. at 569. No such statute exists here, and the Label

Law is invalid for that reason alone. See California Democratic

Party v. Jones, 120 S. Ct. 2402, 2422-23 (2000) (Stevens, J.,

the States have to regulate congressional elections, because

the Framers understood “that powers over the election of

federal officers had to be delegated to, rather than reserved

by, the States.” Thornton, 514 U.S. at 804.9 The Elections

Clause does not give the States carte blanche to enact any

type of election laws. Rather, “[t}he Framers intended the

Elections Clause to grant States authority to create proce-

dural regulations,” id. at 832, governing just “the mechanics

of congressional elections,” Foster v. Love, 522 U.S. 67, 69

(1997) (emphases added). See Smiley v. Holm, 285 U.S. 355,

366 (1932) (Clause goes to “procedure and safeguards”’).

Contrary to the State’s contentions (Pet. Br. 38), the Label

Law exceeds Missouri’s authority under the Elections Clause

because it is not just a procedural or mechanical regulation.'°

Valid “time, place, and manner” regulations include many

things, but the Court has made clear what is not included.

This precise phrase is employed in First Amendment juris-

prudence, and the Court has held that a valid time, place, and

manner regulation of speech must be, among other things,

“content neutral”—meaning that it must be “ ‘justified with-

dissenting); Dandridge v. Williams, 397 U.S. 471, 475-476 n.6

(1970) (Court may consider any argument in defense of judgment).

9 This holding forecloses the State’s argument (Pet. Br. 25 n.37)

that the Label Law falls within the powers reserved under the

Ninth and Tenth Amendments. See also Newberry v. United

States, 256 U.S. 232, 281 (1921) (Pitney, J., concurring in part)

(“The reservation contained in the Tenth Amendment cannot

properly operate upon this subject [federal elections] in favor of

the state governments; they could not reserve power over a matter

that had no previous existence.”), overruled on other grounds,

United States v. Classic, 313 U.S. 299, 319 (1941) (endorsing

Justice Pitney’s concurrence).

10 Although the Eighth Circuit did not specifically rely on the

Elections Clause, respondents expressly raised the argument

below, see Ct. App. Br. 7-10, and the District Court ruled in their

favor on the issue. See Pet. App. A42-A43, A45-A46.

out reference to the content of the regulated speech.’ ” Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation

and emphasis omitted).

The Label Law fails this test for content neutrality. Indeed,

not only does the Law label candidates based solely on their

substantive views on a single issue—the term limits amend-

ment—it is viewpoint discriminatory as well because it labels

only those candidates who disagree with or fail to support the

State’s favored position on that issue. See id. (regulation is

not content neutral if adopted “because of disagreement with

the message” of the regulated speech). Just as the “time,

place, and manner” test ensures government neutrality when

regulating speech, so the same test, codified in the Elections

Clause, ensures government neutrality in the federal election

process. Under that test, the limited power delegated to the

States to regulate the “procedures” and “mechanics” of

elections does not include the power to regulate the appear-

ance of candidates’ names on the ballot according to the

content of their views on a particular issue. -

The State argues that the Label Law permissibly regulates

the manner of elections by merely “disclosing information

about congressional candidates.” Pet. Br. 28.!! As noted

above, this argument fails because the limited power to reg-

ulate the time, place and manner of elections does not include

the power to regulate ballots based on the content of a

candidate’s views on a particular issue. Even if these labels

were truly evenhanded—which, as shown below, they are

not—singling out term limits as the only issue labeled on the

ballot would impermissibly skew campaign debate and

voting decisions toward that particular issue. !2

'l In her deposition, however, petitioner herself agreed that the

Label Law does not regulate the time, place, or manner of elec-

tions. J.A. 58 (testimony of Rebecca McDowell Cook).

12 None of the other examples of ballot labels given by the State

and its amici—such as party labels or nicknames—are predicated

This fact is made clear by Anderson v. Martin, 375 U.S.

399 (1964), in which this Court struck down a state law

labeling the race of candidates on ballots for state office. The

Court said that the “vice” of this law was its “placing of the

power of the State behind a racial classification that induces

racial prejudice at the polls.” Jd. at 402. Although the case

was decided on equal protection grounds, its reasoning is

fully applicable here. The Court explained that

by placing a racial label on a candidate at the most crucial

stage in the electoral process—the instant before the vote

is cast—the State furnishes a vehicle by which racial pre-

judice may be so aroused as to operate against one group

because of race and for another. This is true because by

directing the citizen’s attention to the single consideration

of race or color, the State indicates that a candidate’s race

or color is an important—perhaps paramount—considera-

tion in the citizen’s choice, which may decisively influ-

ence the citizen to cast his ballot along racial lines. [/d.]

So too here. By placing “the power of the State” behind

the ballot labels and “directing the citizen’s attention to the

single consideration” of term limits at the “most crucial stage

in the electoral process,” the State indicates that this issue “is

an important—perhaps paramount—consideration in the

citizen’s choice,” and may thereby “decisively influence” the

citizen to vote based on that one issue. As the Court recog-

nized in Anderson, such state-imposed, single-issue ballot

labels destroy the neutrality of the electoral process. !?

on the State’s assessment of the content of a candidate’s views on

an issue. The Court need not decide here whether the Constitution

would permit a State to require a party label over a candidate’s

objections. But while party affiliation may correlate to substantive

views on some (but not all) issues, a neutral requirement that all

party affiliations be listed on the ballot would not be based on the

content of a candidate’s views on any particular issue.

13 Anderson refutes the State’s claim that there must be record

evidence of the ballot labels’ tendency to affect voters and candi-

2. The Court has also held that the Elections Clause is not

“a source of power to dictate electoral outcomes, to favor or

disfavor a class of candidates, or to evade important consti-

tutional restraints.” Thornton, 514 U.S. at 833-834 (empha-

sis added).'4 The Label Law falls squarely within that

dates. Pet. Br. 30 n.40. Anderson makes clear that the effect of a

ballot label is a question of law for which specific proof is unnec-

essary. Cf. Riley v. National Fed’n of the Blind of N.C., Inc., 487

U.S. 781, 799-800 (1988) (relying on “predictable result” of

compelled disclosure); Central Hudson Gas & Elec. Corp. v.

Public Serv. Comm'n, 447 U.S. 557, 569 (1980) (accepting

without empirical evidence the “immediate connection” between

advertising and demand). In any event, the self-proclaimed

premise of the Label Law is that voters will react to the labels. See

also Garrett, 85 Va. L. Rev. at 1577-78 (“Because the notation is

placed on the official ballot, voters exposed to the misleading

information are a captive audience placed in an environment where

they ascribe heightened credibility to the information.”). As in

Anderson, moreover, the relevant issue is whether the labels and

instructions may tend to influence some voters and candidates, not

whether they would necessarily affect every voter and every

candidate, or alter the outcome of every election.

14 Alexander Hamilton rejected the argument that the Elections

Clause “might be employed in such a manner as to promote the

election of some favorite class of men.” The Federalist No. 60, at

367 (Clinton Rossiter ed., 1961). Rebutting the claim that the

Clause might be used to favor the wealthy, he said that this “forms

no part of the power to be conferred * * *. Its authority would be

expressly restricted to the regulation of the times, the places, and

the manner of elections.” Jd. at 371 (emphasis in original). Justice

Story, too, saw the impropriety of using the Elections Clause “to

promote the election of some favorite candidate.” 3 Joseph Story,

Commentaries on the Constitution of the United States § 818

(1833). See Thornton, 514 U.S. at 833; Newberry, 256 U.S. at

255-256; id. at 283-284 (Pitney, J., concurring in part); see also

Benjamin D. Black, Developments in the State Regulation of Maj-

or and Minor Political Parties, 82 Cornell L. Rev. 109, 114 (1996)

(Elections Clause does not permit States “to substantively discour-

prohibited category of regulations. The intended purpose and

obvious effect of the law is to disfavor and handicap a

particular class of candidates—those who refuse to follow, or

pledge to follow, the term limits instructions. Indeed, the

avowed intent of the law is to cause the adoption of a par-

ticular constitutional amendment by influencing candidate

and voter behavior. See Mo. Const. art. VIII, § 15 (express-

ing “intention that this initiative lead to the adoption of the

following U.S. Constitutional Amendment”). Under the

Elections Clause, the State may enact evenhanded voting

regulations, but it may not place its thumb on the electoral

scale so as to help some candidates and hurt others based on

the content of their political views. !5

The labels in question do not simply impart information in

a neutral way but rather cast aspersions on candidates be-

cause of their stance on a single issue. It is not merely

informational to say that a candidate “DISREGARDED”

voter instructions—a loaded term connoting disrespect and

inattention to the views of the voter who reads it. See

Webster’s Third New International Dictionary (““Webster’s’’)

655 (1986) (“Disregard,” means “to treat without fitting

respect or attention,” “to treat as unworthy of regard or

notice,” and “to give no thought to” or “pay no attention to”).

Indeed, because the label does not say what the “instructions”

age or interfere with political competition among aspiring partici-

pants”); of. Miller, 169 F.3d at 1125-26 (label law “place[s} the

state’s official stamp of disapproval on a specific group of candi-

dates, namely, those whom the state disfavors because of their

views on a single political issue” and hence is “an improper exer-

cise of Nebraska’s authority to regulate the content of its ballots”).

15 Significantly, if a State has the power under the Elections

Clause to use ballot labels in effort to sway an election, Congress

has the same power. But the Framers plainly could not have

intended to give a majority in Congress the power to perpetuate

itself in office by damaging political opponents, or non-

incumbents generally, with negative ballot labels.

were, it tells each voter that his or her views on term limits

have been disrespected regardless of what those views may

be. And as the California experience shows, see supra at 7-8,

to label a candidate as having “DECLINED TO PLEDGE” to

support term limits—especially where candidates who do

take the pledge are not labeled—-clearly implies that there is

something amiss about a politician who has not taken the

pledge. See Webster’s at 586, 1739 (“Decline” means “to

refuse to undertake, engage in, or comply with” or “reject,

repudiate, [or] spurn,” while “pledge” means “assure or

promise the performance of” or “promise seriously.”’). Thus,

during the critical moment a Missouri citizen examines the

ballot before voting, he or she will see some candidates

branded as having treated the citizen’s own wishes as un-

worthy or without the respect or attention they are due, and

others branded as having refused to make a serious assurance

about a political issue deemed important by the State.

As the Eighth Circuit held, such pejorative labels cannot

help but have the intended effect on voters and candidates:

The labels are phrased in such a way they are likely to

give (and we believe calculated to give) a negative im-

pression not only of a labeled candidate’s views on term

limits, but also of his or her commitment and accounta-

bility to his or her constituents. * * * Each label implies

that a labeled candidate cannot be trusted to carry out the

people’s bidding, which in turn casts doubt on his or her

suitability to serve in Congress. * * * The only “informa-

tion” the Missouri Amendment adds to the ballot is de-

rogatory labels for candidates who do not do what it re-

quires. [Pet. App. A9 (citing other label law cases). ]

By potentially affecting voters at the instant they vote, such

labels threaten a politician’s career and livelihood, and thus

are as serious a coercive sanction as a fine or other penalty. '®

16 See also Advisory Opinion to the Attorney General Re Term

Limits Pledge, 718 So. 2d 798, 803 n.3 (Fla. 1998) (label “Broke

The label laws have been rightly denounced as an “ex-

tremely dangerous and misleading manipulation of the Fed-

eral ballot.” 143 Cong. Rec. H462 (Feb. 12, 1997) (state-

ment of Rep. Fowler). See also id. at H419 (Feb. 11, 1997)

(statement of Rep. McCollum) (such laws “set[ | a dangerous

precedent for manipulation of the Federal ballot by special

interest groups”). If the Label Law is upheld, it is not far-

fetched to think we would soon see congressional candidates

being labeled as having, for example, “OPPOSED

PROTECTING AMERICAN JOBS” or “VOTED TO CUT

BENEFITS FOR SENIORS.” One could easily imagine

other, more extreme, examples. Under the State’s reasoning,

such designations would be constitutional and appropriate.

They are not, because they go beyond the State’s power to

establish neutral election procedures, and instead allow any

group that happens to have majority support in a given elec-

tion to use the State’s control over the ballot to determine the

issues upon which future federal elections will be waged.

Such a proliferation of ballot labels would “radically change

the voting process,” Gwadosky, 966 F. Supp. at 59-60 n.9,

and “undermine the ballot’s purpose by transforming it from

a means of choositig candidates to a billboard for political ad-

vertising.” Timmons v. Twin Cities Area New Party, 520

U.S. 351, 365 (1997). This the Elections Clause plainly

forbids. Far from “reinvigorat[ing] American democracy,”

Pet. Br. 42, the Label Law seeks to corrupt it.!7

TERM LIMITS pledge” is “obviously intended to be, and would

be, a negative comment on the candidate at issue, and would

potentially adversely affect that candidate’s chances of being

elected”); Garrett, 85 Va. L. Rev. at 1576 (label “DISREGARDED

VOTERS’ INSTRUCTIONS” is “likely to irritate any citizen in

the voting booth long before she reads on to discover the precise

issue that prompted the lawmaker’s disregard,” and was drafted “to

evoke the strongest possible reaction from voters”).

17 Ray v. Blair, 343 U.S. 214 (1952), is not to the contrary. See

Pet. Br. 24-25. In that case, the Court held that a State may permit

3. The Label Law contravenes the Qualifications Clauses,

U.S. Const. art. 1, § 2, cl. 2, § 3, cl. 3, for largely the same

reasons. In Thornton, the Court held that the three qualifica-

tions for Congress set forth in Article I are exclusive, and that

a State may not create additional ones. 514 U.S. at 806. The

Court further held that a State may not indirectly add qualifi-

cations: “a state amendment is unconstitutional when it has

the likely effect of handicapping a class of candidates and has

the sole purpose of creating additional qualifications indi-

rectly.” Jd. at 836. This test echoes the Court’s ruling that

the Elections Clause forbids laws that “favor or disfavor a

class of candidates.” Jd. at 833-834.

As the State admits, Pet. Br. 26, the Qualifications Clauses

do not merely prevent a State from completely disqualifying

candidates who meet the constitutional requirements. The

law at issue in Thornton did not disqualify any candidate

from running or serving, but rather barred candidates’ names

from appearing on the ballot if they had served in Congress

more than a set amount of time. Thus, the petitioners in

Thornton argued that the law did not add new qualifications,

because it did not actually disqualify anyone—any person

could still run as a write-in candidate. 514 U.S. at 828. The

Court rejected that argument, holding that although the law

did not, literally, create new qualifications, it violated the

a political party to require the party’s candidates for the electoral

college to pledge to support the party’s presidential and vice-

presidential nominees as an exercise of the State’s constitutional

authority under Article II, § 1 to appoint electors in the manner of

its choice. 343 U.S. at 227. A State has no comparable power

with respect to the election of Members of Congress. Moreover,

Ray rested on the principle—not applicable here—that political

parties have the associational right to determine the qualifications

of their own nominees. See, e.g., id. at 221-222 (pledge “protects a

party from intrusion by those with adverse political principles”),

225, 230. Finally, Ray did not decide whether such pledges could

be made legally enforceable. Jd. at 230.

Qualifications Clauses because its intended purpose and ef-

fect was to “handicap[ ] a class of candidates.” Jd. at 831.'®

The Label Law is invalid for the same reasons. First, as

shown above in connection with the Elections Clause, supra

at 16-19, the Law “has the likely effect of handicapping a

class of candidates,” Thornton, 514 U.S. at 836—those who

will not support the proposed amendment. Second, the Law

“has the sole purpose of creating additional qualifications in-

directly.” Id. The Law’s express intent is to cause the adop-

tion of the proposed amendment, and it seeks to do so by

skewing elections against the disfavored class. See Mo.

Const. art. VIII, § 15; Thornton, 514 U.S. at 829-830 (relying

on statement of intent in Arkansas law). Thus, as in Thorn-

ton, the Law indirectly seeks to add a new, non-procedural

qualification: support for the amendment. Contrary to the

State’s contention (Pet. Br. 28), it is immaterial that the State

seeks to impose this indirect qualification to achieve another

goal: enactment of the amendment. In Thornton, the Arkan-

sas law was invalid even though it sought to achieve such

ancillary goals as “provid[ing] for the infusion of fresh ideas

and new perspectives, and * * * decreas[ing] the likelihood

that representatives will lose touch with their constituents.”

514 U.S. at 837. So too here, the Label Law’s ancillary goal

does not justify its intended purpose to achieve that goal by

handicapping a disfavored class of candidates.

B. The History of the Constitution Shows that States

Have No Delegated Power to Coerce Federal Leg-

islators Through Enforceable Instructions

The State and its amici argue at length that history of leg-

islative instructions demonstrates the validity of the Label

Law. In fact, history demonstrates just the opposite. The

18 Contrary to the State’s argument, see Pet. Br. 27, in reaching

this conclusion in Thornton, the Court specifically disavowed any

reliance on empirical evidence regarding the electoral chances of

write-in candidates. 514 U.S. at 536.

idea that a State can issue legal commands to sitting or future

Members of Congress, backed up by a coercive enforcement

mechanism, is contrary to the history and fundamental

principles of our constitutional system. This case is not

about the right of the “people” to make their views known

through advisory referenda or similar communications. It is,

instead, about the effort of a state government to use its

control over the ballot to cause federal representatives to

support State-favored legislation. Far from supporting such a

law, the history of the Constitution manifestly condemns it.

1. The Rejection of a “Right to Instruct”

In 1789, during the First Congress’s drafting of the Bill of

Rights, a proposal was made to include in what would be-

come the First Amendment the right of the people “to instruct

their Representatives.” 1 Annals of Congress (“Annals”) 761

(Joseph Gales ed., 1789). After much debate, the proposal

was soundly defeated by a vote of 41-10. Jd. at 776.'9 Con-

trary to the claims of Professor Kobach, see Kobach Br. 19-

22, this proposal was not rejected because it was understood

that a right to issue enforceable instructions already existed,

but because Representatives (including prominent Framers

such as James Madison and Roger Sherman) understood that

such a right was contrary to the fundamental principles of the

new Constitution. See Bowsher v. Synar, 478 U.S. 714, 723

(1986) (First Congress’s actions are “ ‘contemporaneous and

weighty evidence’ of the Constitution’s meaning”’).

Madison was strongly opposed to creating a right to in-

struct, arguing that it would be “of a doubtful, if not of a

dangerous nature.” | Annals at 767. He explained that if the

right meant only that “the people have a right to express and

19 Measured by reported text, the debate on this proposal lasted

perhaps ten times longer than the debate on any other proposed

provision of the First Amendment. A similar proposal failed in the

Senate by a 14-2 vote, see Senate Journal 70 (Sept. 3, 1789), but

there is no record of the debate in the Senate.

communicate their sentiments and wishes, we have provided

for it already” in what would become the First Amendment.

Id. at 766. But, he continued, “[i]f gentlemen mean to go

further, and to say that the people have a mght to instruct

their representatives in such a sense as that the delegates are

obliged to conform to those instructions, the declaration is

not true,” and such a right “obliges us to run the risk of

losing the whole system.” Id. at 766, 767 (emphases added).

“Suppose,” Madison asked, a representative “is instructed to

patronize certain measures, and from circumstances known to

him, but not to his constituents, he is convinced that they will

endanger the public good; is he obliged to sacrifice his own

judgment to them?” Jd. at 766.

It is thus evident that Madison viewed a right to issue en-

forceable instructions as inconsistent with a major goal of

representative democracy—to “refine and enlarge the public

views by passing them through the medium of a chosen body

of citizens, whose wisdom may best discern the true interest

of their country and whose patriotism and love of justice will

be least likely to sacrifice it to temporary or partial consid-

erations.” The Federalist No. 10, at 82 (Madison). In fact,

during the Constitutional Convention, Madison (and James

Wilson) successfully opposed a proposal that would have

permitted state legislatures to appoint representatives to

Congress, saying that if the legislatures have the power to

appoint “they will instruct, and thereby embarrass the Dele-

gate—not so if the Election is by the people.” 1 The Records

of the Federal Convention of 1787, at 367 (Max Farrand ed.,

1966) (“Farrand”) (emphasis added). Madison thus believed

that popularly elected representatives could not be instructed.

Roger Sherman also forcefully opposed the proposal to

create a right to instruct. For him, the idea was at odds with

Congress’s role as a deliberative body comprised of repre-

sentatives open to persuasion and compromise and serving

not merely the narrow interests of a few, but the common

good of the Nation. These were his words:

[T]he words are calculated to mislead the people, by

conveying an idea that they have a right to control the

debates of the Legislature. This cannot be admitted to be

just, because it would destroy the object of their meeting.

I think, when the people have chosen a representative, it

is his duty to meet others from the different parts of the

Union, and consult, and agree witi. them to such acts as

-are for the general benefit of the whole community. If

they were to be guided by instructions, there would be no

use in deliberation; all that a man would have to do,

would be to produce his instructions, and lay them on the

table, and let them speak for him. From hence I think it

may be fairly inferred, that the right of the people to con-

sult for the common good can go no further than to peti-

tion the Legislature, or apply for a redress of grievances.

It is the duty of a good representative to inquire what .

measures are most likely to promote the general welfare,

and, after he has discovered them, to give them his sup-

port. Should his instructions, therefore, coincide with his

ideas on any measure, they would be- unnecessary; if they

were contrary to the conviction of his own mind, he must

be bound by every principle of justice to disregard them.

[1 Annals at 763-764 (emphasis added). }

Many others also spoke out against the proposed night,

likewise making clear that it would subvert the principles of

the Constitution. George Clymer of Pennsylvania, another

Framer, declared that a right to issue enforceable instructions

would be “a most dangerous principle, utterly destructive of

all ideas of an independent and deliberative body, which are

essential requisites in the Legislatures of free Governments”

and would “render{ ] Congress a mere passive machine.” Jd.

at 763. Maryland’s Thomas Stone said that such a right

would be “subversive of the principles of the constitution”

and “change the Government entirely.” Jd. at 767-768. He

added that this was “a power not to be found in any part of

the earth except among the Swiss cantons” and that “here we

have a different form of Government.” Jd. at 768.2°

The rejection of the right to instruct confirmed that the

Framers intended for Congress to be a deliberative body in

which representatives, while mindful of their local constitu-

ency, meet to debate and legislate in the national interest.

See INS v. Chadha, 462 U.S. 919, 959 (1983) (“The records

of the-Convention and debates in the states preceding ratifi-

cation * * * [show an] unmistakable expression of a determi-

nation that legislation by the national Congress be a step-by-

step, deliberate and deliberative process”).2! The Constitu-

tion established a representative democracy—a system that

gives the people the power, not to make the laws themselves,

but to elect those who do. See U.S. Const. art. I, § 1 (“All

legislative Powers herein granted shall be vested in a Con-

gress of the United States.”); cf. id. art. IV, § 4, cl. 1 (guar-

anteeing “a Republican Form of Government”). As the

debates of the First Congress make clear, “[i]nstruction

would have completely undermined the Madisonian system

of deliberation among refined representatives.” Akhil Reed

20 See also 1 Annals at 762 (“{Wlere all the members to take

their seats in order to obey instructions, and those instructions

were as various as it is probable they would be, what possibility

would there exist of so accommodating each to the other as to

produce any act whatever?’’) (statement of Rep. Hartley); id. at 764

(“Let the people consult and give their opinion; let the representa-

tive judge of it: and if it is just, let him govern himself by it as a

good member ought to do; but if it is otherwise, let him have it in

his power to reject their advice.”) (statement of Rep. Jackson); id

at 772 (“Instructions have frequently been given to the representa-

tives of the United States; but the people did not claim as a right

that they should have any obligation upon the representatives; it is

not right that they should.”) (statement of Rep. Wadsworth).

2! Ensuring deliberation is one reason why the Constitution

requires the Members of Congress to gather together in person.

See U.S. Const. art. I, § 4, cl. 2.

Amar, The Bill of Rights as a Constitution, 100 Yale L.J.

1131, 1154 (1991). Or as Noah Webster put it at the time,

instructions “subvert the very principles of republican

government” because “[t]hey make the opinions of a small

part of the state a rule for the whole—they imply a decision

of a question, before it is heard—{and] they reduce a Repre-

sentative to a mere machine, by restraining the exercise of his

reason.” Noah Webster, Government, The American Maga-

zine 204, 207 (Mar. 1788) (writing as “Giles Hickory’’).?2

As the 1997 experience in Congress demonstrates, the

Label Law is fundamentally inconsistent with these princi-

ples of deliberative, representative democracy. The label

laws’ legal commands to representatives, enforced through

coercive ballot labels, prevented them from deliberating and

compromising to enact legislation according to their views of

the national interest. In the words of Roger Sherman, the

laws “destroy[ed] the object of their meeting.” 1 Annals at

763. The rejection by the Framers and their contemporaries

of the right to instruct was a wholesale rejection of the idea

that the Constitution gives the States the power to coerce the

actions of federal legislators through enforceable legal com-

mands like those at issue here. See Miller, 169 F.3d at 1124.

22 See also Amar, 100 Yale LJ. at 1154-55 (“all of Madison's

central arguments in The Federalist No. 10 are premised on a

repudiation of the idea of instruction”); Cass R. Sunstein, Democ-

racy and the Problem of Free Speech 242 (1993) (“For the found-

ing generation, a right to instruct was thought to be inconsistent

with the point of meeting, which was deliberation.”); Thomas E.

Cronin, Direct Democracy 25 (1989); Saul Levmore, Precommit-

ment Politics, 82 Va. L. Rev. 567, 591 n.51 (1996); David P.

Currie, The Constitution in Congress: The First Congress and the

Structure of Government, 1789-1791, 2 U. Chi. L. Sch. Roundtable

161, 172 (1995); George F. Will, Save Us From the Purists,

Newsweek, Feb. 17, 1997, at 76 (label laws are “pernicious” and a

“device that degrades what the [term limits] movement seeks to

dignify—the principle of deliberative representation”).

2. Pre-Constitutional History Does Not Support

the Validity of the Label Law

The State and its amici attempt to defend the Label Law

with historical evidence of constituents instructing legislators

in this country. See, e.g., Pet. Br. 10-17; Kobach Br. 4-19.

The history they rely on, however, is not up to the task.

To begin with, in all the history they recount, there is no

example of any instruction comparable to the Label Law—.

that is, an instruction framed as a formal legal command and

enforced through coercive sanctions imposed by the govern-

ment through its control over the ballot. See Kobach Br. 5

(“no formal legal mechanism compelled the [colonial legis-

lator] to obey his instructions”); Pet. Br. 14 n.13 (no history

of labels being used to enforce instructions). The one

example we have of a proposal to give instructions the force

of law is the rejected proposal to include a right to instruct in

the First Amendment. The State and Professor Kobach argue

that early instructions needed no enforcement because “no

self respecting member of Congress” would have ignored

them, Pet. Br. 14 n.13, and because the political culture of the

time made them “de facto binding.” Kobach Br. 5, 15, 23.

The fact remains, however, that the Label Law is quite differ-

ent from the historical instructions. It is one thing to receive

an instruction and choose to follow it; it is quite another for

the instruction to be codified as a legal command and given a

government-imposed sanction for its violation.23

23 An example cited by Professor Kobach proves the point.

Delaware’s delegates to the Constitutional Convention had been

instructed not to vote for any constitution denying the States equal

representation in Congress. See Kobach Br. 10. But the ability of

delegates to compromise on that point—through the establishment

of the House and the Senate—was a critical factor in the creation

of the Nation. Had Delaware’s delegates been under a legal

command, or had they faced governmental retribution for failing to

follow that command, there might never have been a Constitution.

Just as importantly, examples of instructions prior to the

Framing prove nothing, for, as noted above, the Framers

rejected such instructions as incompatible with the new

system of a deliberative, representative Congress that would

act in the national interest. See Cronin, supra, at 24 (“Not

until the late 1780s did Americans begin to challenge the

doctrine of binding instructions. Hamilton and Madison led

the charge.”). A central weakness of the Articles of Confed-

eration—which the Constitution was intended to overcome—

was the lack of a truly national legislature in which repre-

sentatives could enact laws in the national interest free from

the threat of recall by their States. As one Senator noted in

1858, the practice of instructions

had its origin * * * under the Confederation, when the

States not only claimed, but had the power, to instruct

their representatives in Congress, and to recall them too,

they being nothing more than [a]mbassadors from inde-

pendent sovereignties attending a general Congress of the

States. * * * This doctrine, so far from having any sup-

port in the Constitution, in my judgment is directly at war

both with the spirit and literal provisions of the Constitu-

tion. [Cong. Globe, 35th Cong., Spec. Sess. of the Senate

805 (1858) (statement of Sen. Bell).]

Thus, it is not surprising that neither the State nor its amici

point to a single instance of an instruction issued to popularly

elected federal representatives after the Framing.*4

The practice of instructions prior to the Framing had con-

siderable opposition—including by some of the most influ-

ential statesmen of the day. Perhaps the most famous expres-

sion of opposition can be found in a 1774 speech delivered

by Edmund Burke to his Bristol constituents. Burke said that

although a representative should heed his constituents’ views,

he “owes you, not his industry only, but his judgment; and he

24 The practice of State legislatures instructing Senators whom

they selected raises separate issues. See infra at 30-31.

betrays, instead of serving you, if he sacrifices it to your

opinion.” 1 The Founders’ Constitution 392 (Philip B. Kur-

land & Ralph Lerner eds., 1987). As he stated, legislation is

a matter of reason, “and what sort of reason is that, in which

the determination precedes the discussion [and] in which one

set of men deliberate, and another decide.” Jd. Burke thus

rejected “authoritative instructions; mandates issued, which

the member is bound blindly and implicitly to obey, io vote,

and to argue for, though contrary to the clearest conviction of

his judgment and conscience.” Jd. (emphasis in original).

Reflecting the Burkean view, many of the Framers ex-

pressed the view that States had no right to instruct Members

of Congress. Cf. Russell Kirk, The Conservative Constitu-

tion ix-x, 82-89, 94-95 (1990) (describing Burke’s influence

on the Framers and the Constitution); Cronin, supra, at 28

(same). Madison’s views are made clear by his remarks in

the First Congress and in The Federalist. See supra at 22-23.

In 1786, George Washington likewise objected that legal

commands to national representatives would impair delibera-

tion. As he stated, in national matters “the sense, but not the

Law of the District may be given, leaving the Delegates to

judge from the nature of the case and the evidence before

them.” 1 Founders’ Constitution 399 (emphasis in original).

John Adams believed that States had no right to instruct

federal representatives even in a purely advisory capacity:

“Upon principle, I see no right in our Senate and House to

dictate, nor to advise, nor to request our representatives in

Congress.” Letter to J.B. Varnum, Dec. 26, 1808, in 9 The

Works of John Adams 605 (Charles F. Adams ed., 1969).25

25 Although Alexander Hamilton stated in passing during New

York’s ratifying convention that the people “have it in their power

to instruct their representatives,” he also said that “[t]here are cer-

tain conjunctures, when it may be necessary and proper [for a leg-

islator] to disregard the opinions which the majority of the people

have formed.” 2 Jonathan Elliot, The Debates in the Several State

Conventions on the Adoption of the Federal Constitution 252 (2d

Finally, in 1788, Patrick Henry, a proponent of instruction,

spoke against the proposed Constitution during the Virginia

ratifying convention on the ground that instructions to federal

legislators could not be enforced: “[C]an you in this gov-

ernment recall your senators? Or can you instruct them?

You cannot recall them. You may instruct them, and offer

your opinions; but if they think them improper, they may

disregard them.” 3 Elliot’s Debates at 355. As he stated,

“{djelegates may be called and instructed under the present

system, but not by the new Constitution.” /d. at 354.

3. Post-Constitutional History Does Not Support

the Validity of the Label Law

As the State and its amici note, prior to the popular election

of Senators, some State legislatures issued non-binding in-

structions to the Senators they selected. See, e.g., Pet. Br. 13;

Kobach Br. 17. But this practice—which declined after 1840

and was “obsolete” by 1860, Cronin, supra, at 26—says no-

thing about the proper interpretation of the Constitution. See

Thornton, 514 U.S. at 823 (“One may properly question the

extent to which the States’ own practice is a reliable indicator

of the contours of restrictions that the Constitution imposed

on States.””). Indeed, the constitutionality of the practice was

never determined, see Levmore, 82 Va. L. Rev. at 592 &

n.54; Currie, supra, at 173; and it was always controversial

and far from universally accepted. See Roy Swanstrom, The

United States Senate 1787-1801, S. Doc. No. 87-64, at 171

(1961) (“in these precedent-making days [1789-1801] there

was no unanimity of sentiment on the question of” state

ed. 1836) (“Elliot’s Debates”). The latter view is more in line with

his writings as Publius. See The Federalist No. 71, at 432 (“When

occasions present themselves, in which the interests of the people

are at variance with their inclinations, it is the duty of the persons

whom they have appointed to be the guardians of those interests to

withstand the temporary delusion, in order to give them time and

opportunity for more cool and sedate reflection.”’).

instructions to Senators); Vik D. Amar, The Senate and the

Constitution, 97 Yale L.J. 1111, 1117 n.32 (1988).26

But even if this practice bore on the meaning of the Con-

stitution, it says nothing about the validity of the Label Law.

Prior to the Seventeenth Amendment, instructions by legis-

latures to the Senators they chose were “widely regarded as a

logical concomitant of the concept that the Senate was the

special representative of the sovereignty left to the States.”

Swanstrom, supra, at 160. See also William E. Dodd, The

Principle of Instructing United States Senators, 1 S. Atlantic

Q. 326, 327 (1902). It is one thing for a legislature to make

its current views known to the individuals it alone selects; it

is quite another for a state government to use its control over

the ballot to enforce outdated legal commands imposed on

popularly elected representatives, including House members

who represent a single District rather than the entire State.

The State and its amici also rely on state laws—some of

which had ballot label provisions—regarding the selection of

Senators prior to the Seventeenth Amendment. See Pet. Br.

14-16; Missouri Term Limits Br. 14-18; Nebraska Br. 17-20.

These Twentieth Century laws have no bearing on the

interpretation of the Constitution. See Thornton, 514 U.S. at

826-827 n.41 (“[A]s one moves away from 1789, it seems to

us that state practice is even less indicative of the Framers’

understanding of state power.”’). It is not true, however, that

26 In the First Congress, North Carolina’s Senators refused to

obey instructions given them, as did one of Maryland’s. See

Swanstrom, supra, at 162-165, 169. To Ralph Izard of South

Carolina, “legislatures had no more right to instruct Senators than

electors had to instruct the President,” id. at 169, while Oliver

Ellsworth of Connecticut said that instructions “amounted to no

more than a wish, and ought to be no further regarded.” Journal of

William Maclay 399 (Edgar S. Maclay ed., 1890). See also supra

at 28; 30 Annals of Congress 577 (1817) (statement of Rep. John

C. Calhoun) (“I too * * * am an advocate for instruction. I am

instructed. The Constitution is my letter of instruction.”).

the Label Law is “indistinguishable” from these laws.

Missouri Term Limits Br. 14-15. The cited laws were

entirely permissive—candidates were allowed but not

required to take a pledge or carry a ballot label—and the

laws contained neither instructions nor “DISREGARDED

INSTRUCTIONS” labels. See id. at 14-18, la-4a. More-

over, the laws (1) involved only elections for state office—

thus the Elections Clause, the Qualifications Clauses, the

Speech or Debate Clause, and Article V did not apply to

them; and (2) existed before the First Amendment was

incorporated against the States, see McIntyre v. Ohio Elec-

tions Comm’n, 514 U.S. 334, 336 n.1 (1995). Finally, one

state court struck down a mandatory pledge law on state

constitutional grounds. See State ex rel. McCue v. Blaisdell,

118 N.W. i41, 144-145 (N.D. 1908).27

4. The Label Law Violates Principles of Federalism

The history recounted above demonstrates that the Consti-

tution was not intended to confer upon the States the power

to use their control over the ballot to coerce federal legisla-

tive debate through enforceable instructions. Indeed, princi-

ples of federalism negate any such power. The Court has

held that Congress may not “commandeer” state officers—

including state legislators—into enforcing a program or

enacting a law to serve a federal agenda. Printz v. United

27 The State and its amici also note that some States sought to

bind delegates to conventions called to consider ratification of the

Twenty-First Amendment. See Pet. Br. 17; Kobach Br. 18-19;

Missouri Term Limits Br. 18-21; Nebraska Br. 15-17. Assuming

arguendo that a State has broad power to structure and regulate its

own convention, including the selection and conduct of convention

delegates, see In re Opinion of the Justices, 148 So. 107, 110 (Ala.

1933), a State surely has no comparable power over the election or

acts of Members of Congress, who are federal officers beyond a

State’s control. Moreover, these laws are not content-based—they

simply require a delegate to disclose the way he or she will vote on

the only issue to be considered at the ratifying convention.

tee _———

States, 521 U.S. 898, 925 (1997); New York v. United States,

505 U.S. 144, 161 (1992). The federal government therefore

may not “require the States to govern according to Congress’

instructions.” Id. at 162 (emphasis added).

Of course, the principle also works the other way and for-

bids States from issuing directives to federal legislators. As

the Court explained in Printz:

It is no more compatible with this independence and au-

tonomy [of States] that their officers be “dragooned”

*** into administering federa! law, than it would be

compatible with the independence and autonomy of the

United States that its officers be impressed into service

for the execution of state laws. [521 U.S. at 928.28]

The conscription of federal officers into state service is,

however, exactly what Missouri has attempted here. The

State has ordered each federal legislator from Missouri, on

penalty of a negative ballot label, to use all of his or her

authority to enact the State’s proposed term limits amend-

ment. This is a clear violation of “the independence and

autonomy of the United States.” /d. See Opinion of the

Justices, 673 A.2d at 696 (instruction on term limits invalid

because “neither the electors of the State of Maine nor the

Legislature of the State of Maine may control the state’s

delegates to the United States Congress in the performance of

their congressional duties. Such an exercise of control would

violate the essence of federalism.”).

Under the Constitution—unlike the Articles of Confedera-

tion—Members of Congress are not mere envoys or emis-

saries of the State from which they come, but are, first and

foremost, federal officers:

28 See also Thornton, 514 U.S. at 841 (Kennedy, J., concurring)

(“That the States may not invade the sphere of federal sovereignty

is as incontestable * * * as the corollary proposition that the

Federal Government must be held within the boundaries of its own

power when it intrudes upon matters reserved to the States.”’).

In th{e] National Government, representatives owe pri-

mary allegiance not to the people of a State, but to the

people of the Nation. As Justice Story observed, each

Member of Congress is “an officer of the union, deriving

his powers and qualifications from the constitution, and

neither created by, dependent upon, nor controllable by,

the states * * *.” (Thornton, 514 U.S. at 803 (quoting 1

Story, supra, § 627) (emphasis added).?9]

The historical record is clear that while federal representa-

tives must obviously pay heed to the expressed wishes of

their constituents, they must also have the ability to deter-

mine for themselves, free from state government coercion,

how they will vote in the national interest.

Il. THE LABEL LAW VIOLATES THE FIRST

AMENDMENT

The Label Law regulates core political speech of candi-

dates and legislators in both a content- and viewpoint-based

manner. The Law compels candidates to express views on

one, and only one, issue; it compels legislators to vote in a

certain way; and it punishes with pejorative labels those who

fail to support the State’s favored view. Missouri has thus

used its control over the ballot to advance one side of a

political debate in an effort to sway the outcome of elections.

As shown below, the First Amendment was intended pre-

cisely to prohibit such heavy-handed governmental interfer-

ence with the free flow of political discourse.

A. The Label Law is Subject to Strict Scrutiny

The State contends that the Label Law is not subject to the

First Amendment because it involves only the “behavior” of

29 That Members of Congress do not “owe their allegiance” to

the States is shown by the facts that their salaries are paid for out

of the Treasury, Thornton, 514 U.S. at 804, and that the Framers

rejected a proposal allowing States to recall their representatives,

see id. at 810 n.20; cf. Articles of Confederation, art. V.

voting, and of taking (or not taking) a pledge. See Pet. Br.

32-33. This argument cannot be taken seriously. The Law

labels non-incumbent candidates according to whether they

take a “pledge,” and reciting a pledge is, of course, a classic

form of speech. See West Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943). Furthermore, the Law instructs incum-

bents to vote in favor of the proposed constitutional amend-

ment. Voting by legislators—like all of the other legislative

activities compelled by the Label Law—.s plainly an expres-

sion of political opinion protected by the First Amendment.*°

The Label Law is subject to the First Amendment because

it compels speech. The First Amendment prohibits a State

from forcing a person to speak publicly, Harper & Row

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985),

or to respond to the views of others, Pacific Gas & Elec. Co.

v. Public Utils. Comm'n, 475 U.S. 1, 11 (1986). The Court

has therefore held that compelled disclosures by political

candidates face exacting scrutiny. Buckley v. Valeo, 424

U.S. 1, 64 (1976). And “[t]he burden upon freedom of

expression is particularly great where, as here, the compelled

speech is in a public context.” Lehnert v. Ferris Faculty

Ass'n, 500 U.S. 507, 522 (1991).

Through the mechanism of the pledge, the Label Law

forces candidates publicly to express views—one way or the

‘ other—on the proposed term limits amendment, and only that

issue, to 100% of the voters at the very moment they cast

30 See Bond v. Floyd, 385 U.S. 116, 135-136 (1966) (“The

manifest function of the First Amendment in a representative

government requires that legislators be given the widest latitude to

express their views on issues of policy.”); Stella v. Kelley, 63 F.3d

71, 75-76 (ist Cir. 1995) (“beyond serious question” that voting by

public officials “comes within the heartland of First Amendment

doctrine”); Clarke v. United States, 886 F.2d 404, 411 (D.C. Cir.

1989) (“ ‘we have no difficulty ’” concluding the same) (citation

omitted), vacated as moot, 915 F.2d 699 (D.C. Cir. 1990) (en

banc). Cf Spallone v. United States, 493 U.S. 265, 274 (1990).

their ballots. And the Law expressly compels—indeed,

instructs—representatives to speak in certain ways. The

Label Law thus plainly compels speech, with the effect of

distorting the content of campaigns and legislative activities,

and the conduct of voters. A candidate may wish to base his

or her campaign on numerous issues—none of which in-

volves term limits—yet, when a voter enters the ballot box,

term limits will be the only issue upon which any candidate’s

purported views are shown. By requiring candidates to

express a view on a single issue to all of the voters, the Label

Law impermissibly “forces speakers to alter their speech to

conform with an agenda they do not set.” Pacific Gas, 475

U.S. at 9. See also Police Dep't of Chicago v. Mosley, 408

U.S. 92, 96 (1972) (government “may not select which issues

are worth discussing or debating in public facilities”).

The Law also compels speech because its labels force can-

didates to advertise a message selected by the State. See

Wooley v. Maynard, 430 U.S. 705, 715 (1977). The Law not

only compels candidates to speak on a given topic, but it

forces them to use words written by the State. The State

argues that “nothing in [the labels’] placement or content

suggests that the message is the candidate’s own,” Pet. Br.

32, but the same might have been said of the license plates at

issue in Wooley. It would be inconceivable to argue that the

First Amendment would permit the State to force candidates

who oppose a constitutional amendment to ban flag burning

to identify themselves, and then post a sign outside their

homes saying “I OPPOSE PROTECTING THE FLAG.” But

that is exactly the kind of speech the Label Law compels.

Finally, the Label Law is also subject to the First Amend-

ment because it uses the State’s ballot monopoly to penalize

candidates for their failure to endorse the State’s favored

position. The Law uses pejorative labels to punish candi-

dates who disagree with the State, and to coerce the support

of those who remain ambivalent or undecided. See supra at

16-19. This contravenes the core right of individuals to

speak freely about matters of public concern without fear of

subsequent government retribution. Thornhill v. Alabama,

310 U.S. 88, 101-102 (1940). As the Court has held, “at the

heart of the First Amendment is the notion that an individual

should be free to believe as he will, and that in a free society

one’s beliefs should be shaped by his mind and his con-

science rather than coerced by the State.” Abood v. Detroit

Bd. of Educ., 431 U.S. 209, 234-235 (1977). Contrary io the

State’s assertion. the Label Law does not simply “comment”

on candidates. Pet. Br. 30. In this context, the State is not

just one of many voices commenting on issues in the public

arena. Rather, the State has used its sole control over the bal-

lot—a power unavailable to others—to influence both can-

didate and voter behavior on a single issue through negative

labels seen by all voters just before they cast their ballots.

Cf. Anderson v. Martin, 375 U.S. 399.

The State nevertheless contends that even if the Label Law

affects speech, it is subject not to strict scrutiny but rather to

a balancing test applied to néutral election regulations such

as filing fees and deadlines.*! The State is wrong. In Mcln-

tyre v. Ohio Elections Commission, supra, the Court invali-

dated a law compelling individuals to place their names on

any written material intended to influence voters. Rejecting

the cases relied on by the State here, the Court held that the

law warranted strict scrutiny because it was not “an ordinary

election restriction,” as it did “not control the mechanics of

the electoral process.” 514 U.S. at 345-346. See also

Burdick, 504 U.S. at 438 (ballot access cases involve “rea-

sonable, politically neutral” regulations).

The Label Law warrants strict scrutiny under this standard

because, as explained above in connection with the Elections

31 See, e.g., Burdick v. Takushi, 504 U.S. 428 (1992); Tashjian

v. Republican Party, 479 U.S. 208 (1986); Anderson v. Cele-

brezze, 460 U.S. 780 (1983); Storer v. Brown, 415 U.S. 724

(1974); Pet. Br. 35-36, 39.

Clause, it is it is not a neutral regulation of the mechanics of

elections, but rather is content- and viewpoint-based. See

supra at 12-15. Content-based speech regulations are subject

to strict scrutiny,>2 and are “presumptively invalid.” R.A.V.

v. City of St. Paul, 505 U.S. 377, 382 (1992). The Label Law

is content-based because it singles out speech on a particular

subject matter—the proposed term limits amendment—and

only that subject matter. See Mcintyre, 514 U.S. at 345;

Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S.

530, 533-535 (1980). The Law, in fact, is even more objec-

tionable. Under the First Amendment, “(t]he government

must abstain from regulating speech when the specific moti-

vating ideology or the opinion or perspective of the speaker

is the rationale for the restriction.” Rosenberger v. Rector &

Visitors, 515 U.S. 819, 829 (1995). Such viewpoint discrim-

ination is a particularly egregious form of content discrimina-

tion. Jd. The Label Law is viewpoint-based, because it seeks

to advance a particular substantive position. It would be bad

enough if the State merely singled out term limits as the only

issue upon which candidates could express their views on the

ballot; it is far worse for the State to pick only one side of the

issue and pejoratively label only those who disagree with that

position. Unlike the disclosure law considered in Mclntyre,

which “applie[d] evenhandedly to advocates of differing

viewpoints,” 514 U.S. at 345, the Label Law does not label

those candidates who support the State’s position.

Viewpoint-based laws “pose the inherent risk that the Gov-

ernment seeks not to advance a legit. . ate regulatory goal,

but to suppress unpopular ideas or information or manipulate

the public debate through coercion rather than persuasion.”

Turner Broad. Sys., Inc. v. FCC,512 U.S. 622, 641 (1994).

That is exactly what the Label Law does. The State’s express

32 See United States v. Playboy Entertainment Group, Inc., 120

S. Ct. 1878, 1886 (2000); Burson v. Freeman, 504 U.S. 191, 198

(1992) (plurality); Simon & Schuster, Inc. v. Members of N.Y.

State Crime Victims Bd., 502 U.S. 105, 118 (1991).

intent is to cause the adoption of the proposed amendment

and, to realize this goal, it uses its control over the ballot to

tar only those who oppose it with negative labels designed to

harm their electoral chances if they run at all.

For all these reasons, the Label Law warrants strict scru-

tiny, which, as shown below, it cannot withstand.

B. The Label Law Cannot Withstand Strict Scrutiny

The Label Law operates in an area—political speech—

where the First Amendment is “at its zenith.” Meyer v.

Grant, 486 U.S. 414, 425 (1988). Because the First Amend-

ment “has its fullest and most urgent application precisely to

the conduct of campaigns for political office,” Monitor

Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), the State’s bur-

den to sustain the Label Law “is well-nigh insurmountable.”

Meyer, 486 U.S. at 425.53 The State has not surmounted that

burden. To satisfy strict scrutiny, a law “must be narrowly

tailored to promote a compelling Government interest.”

Playboy, 120 §. Ct. at 1886. The Label Law is not.

The State first contends that the Label Law serves the in-

terest of the “people” in “preserving their voice in govern-

ment.” Pet. Br. 38. While there is nothing wrong with pre-

serving the legitimate “voice” of the “people” in government,

the Label Law has nothing to do with that interest. The peo-

ple of Missouri may express their views through the electoral

process, and through their right to petition their representa-

tives. The Label Law, however, is an attempt by the govern-

ment of Missouri to cause the enactment of federal legislation

by using its control over the ballot to coerce and penalize

those who oppose it. See Citizens Against Rent Control v.

City of Berkeley, 454 U.S. 290, 295 (1981) (“[T]the voters

33 See also Brown v. Hartlage, 456 U.S. 45, 53 (1982); Buckley,

424 U.S. at 52-53; Mills v. Alabama, 384 U.S. 214, 218-219

(1966); Whitney v. California, 274 U.S. 357, 375 (1927) (Bran-

deis, J., concurring).

may no more violate the Constitution by enacting a ballot

measure than a legislative body may do so by enacting

legislation.”). Such an objective is anathema to the core

values of the First Amendment. Moreover, this Court has

rejected a claimed right to “us[e] the ballot to communicate

to the public” and “to send a particularized message” to the

voters. Timmons, 520 U.S. at 362, 363. As the Court held,

“(ballots serve primarily to elect candidates, not as forums

for political expression.” Jd. See Georges v. Carney, 691

F.2d 297, 301 (7th Cir. 1982) (ballot is “not a vehicle for

communicating messages; it is a vehicle only for putting

candidates and laws to the electorate to vote up or down’”’).

The State next asserts that the Label Law furthers the vot-

ers’ right to receive information about candidates. Pet. Br.

39. But the State has no compelling interest in singling out

for the voters only one issue, much less in handicapping can-

didates who disagree with the State’s favored position. See

Pet. App. Al3. Indeed, the Court has held that the interest of

educating voters does not even justify a content-neutral ballot

regulation dealing with the time for filing candidacy peti-

tions. Anderson v. Celebrezze, 460 U.S. at 796-798. As the

Court held, the First Amendment “reflect[s] a greater faith in

the ability of individual voters to inform themselves about

campaign issues.” Jd. at 797 (emphasis supplied). In fact,

the Label Law disserves the voter’s interest in receiving

information, because it dissuades term limits opponents from

entering the marketplace of ideas.

Nor is there a compelling interest in forcing candidates to

speak on an issue upon which they have not decided to cam-

paign. “The simple interest in providing voters with addi-

tional relevant information does not justify a state require-

ment that a [speaker] make statements or disclosures she

would otherwise omit.” McIntyre, 514 U.S. at 348. That is

because the First Amendment “mandates that we presume

that speakers, not the government, know best both what they

want to say and how to say it.” Riley, 487 U.S. at 790-791.

Even if the State had a compelling interest in informing the

voters only about term limits, the Label Law is not narrowly

tailored to promote that interest because its labels are inaccu-

rate and misleading. First, the “voters” whose “instructions”

an incumbent candidate has purportedly “disregarded” only

represented a majority of statewide initiative voters in 1996.

As the State admits, “[t]he voters in subsequent years might

have a different political view,” Pet. Br. 21, yet the Label

Law continues until its goal has been attained. Second, the

Law will label a candidate as having “disregarded” the

voters’ instructions even if a majority of voters in his or her

congressional district actually opposes term limits. See id.

(noting that 28 counties failed to support Label Law). Third,

the Law will brand as opposing term limits a candidate who

supports term limits, but not the particular form of them pre-

scribed in the proposed constitutional amendment. Pet. App.

Al? n.7, Al4; supra at 9. Fourth, the labels in fact provide

little, if any, useful information, as neither label tells the

voter what the pledge said or what the instructions were.34

34 The Label Law is also unconstitutionally vague. See Gralike

Ct. App. Br. 45-49. “Because First Amendment freedoms need

breathing space to survive, government may regulate in the area

only with narrow specificity.” NAACP v. Button, 371 U.S. 415,

433 (1963). The Label Law fails this “strict” test. Jd. at 432. Pet-

itioner, who decides if candidates will be labeled, admitted that the

Law provides “no guidance” and puts her in an “untenable posi-

tion” on a number of issues. J.A. 60, 51; see J.A. 61-65. She also

voted against the law because it did not provide adequate guidance.

J.A. 50. Indeed, her office unsuccessfully sought clarifying legis-

lation, J.A. 34-35, and Colorado Representatives likewise found it

necessary to obtain the state Attorney General’s opinion on how to

comply with Colorado’s label law. 143 Cong. Rec. H488 (Feb. 12,

1997). The Label Law thus “impermissibly delegates basic policy

matters * * * for resolution on an ad hoc and subjective basis, with

the attendant dangers of arbitrary and discriminatory application.”

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). The

potential for political abuse here is great, as the Label Law would

The State also argues that the Label Law only minimally

impacts First Amendment rights because so long as a candi-

date follows the voting instructions or takes the pledge, she is

free to say anything else about term limits without incurring a

sanction, and may even “disassociate herself from these

actions.” Pet. Br. 37; see id. at 33 & n.43. A law that im-

pairs free expression, however, cannot pass muster on the

theory that other opportunities for speech remain. See, e.g.,

California Democratic Party, 120 S. Ct. at 2412 (“We have

consistently refused to overlook an unconstitutional restric-

tion upon some First Amendment activity simply because it

leaves other First Amendment activity unimpaired.”) (cita-

tion omitted). Nor can an otherwise impermissible compul-

sion of speech be sustained on the view that the speaker can

disavow the message. It would be no answer to say to the

motorists in Wooley that they can apply a bumper sticker

disagreeing with the motto on their license plate, or to the

parading veterans in Hurley v. Irish-American Gay, Lesbian

& Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), that

they can explain after the march why they did not want a

group of gay Bostonians to join them.

In fact, a central vice of the Label Law is that candidates

have no opportunity to express contrary views or disassociate

themselves from the labels after the voters see them. Not

only do candidates lack the ability to express a contrary

message on the ballot, but in Missouri (like many States)

they are forbidden to deliver a message to voters anywhere

near the ballot box on election day. See Mo. Rev. Stat.

§ 115.637(18). The State thus intrudes inside the ballot

box—the place where its coercion will be most effective—

while preventing candidates from countering that effect. See

have an elected official from one political party determining, with

minimal guidance, whether members of other political parties

should receive pejorative ballot labels based on their political

views. And the Law’s biased review provisions, see supra at 5,

would give ample cover for any politically motivated decision.

Riley, 487 U.S. at 800 (compelled disclosure invalid where

individual “will not likely be given a chance to explain” it).

Finally, the Label Law is not narrowly tailored because

there are less restrictive alternatives for achieving the State’s

asserted interests. See, e.g., Boos v. Barry, 485 U.S. 312,

329 (1988). There are a host of ways the State could inform

the electorate about candidate’s positions without violating

the First Amendment. It could sponsor voluntary debates. It

could publish a pamphlet for voters containing statements by

candidates, without requiring a candidate to submit a state-

ment or restricting the issues covered. See, e.g., Cal. Elec.

Code § 13307; N.J. Stat. Ann. 19:44A-37. Or it could leave

space on the ballot for candidates to express a brief message

of their choosing. If the goal of the Label Law were truly to

educate the electorate—rather than to coerce candidates and

voters—it would have employed one of these means instead.

See R.A.V., 505 U.S. at 395 (existence of content-neutral

alternatives “cast[s] considerable doubt on the government’s

protestations that ‘the asserted justification is in fact an

accurate description of the purpose and effect of the law’ ”)

(quoting Burson, 504 U.S. at 213).

Ill. THE LABEL LAW VIOLATES THE SPEECH or

DEBATE CLAUSE

The Label Law is a facial violation of the Speech or Debate

Clause, which provides that “for any Speech or Debate in

either House, [Senators and Representatives] shall not be

questioned in any other Place.” ‘J.S. Const. art. I, § 6, cl. 1.

The State does not dispute that the Law targets core legisla-

tive activity within the ambit of the Clause.35 The Law

35 See, e.g., Gravel v. United States, 408 U.S. 606, 624, 625

(1972) (Clause protects “voting by Members” and anything else

that is “an integral part of the deliberative and communicative

processes by which Members participate in committee and House

proceedings * * * .”); Kilbourn v. Thompson, 103 U.S. 168, 204

(1880) (Clause protects not only “words spoken in debate” but also

“instructs” Members of Congress to use “all of [their]

delegated powers to pass” the proposed amendment, and asks

non-incumbent candidates to pledge to follow that instruc-

tion. Mo. Const. art. VIII, §17. And it directly intrudes

upon the legislative process by, for example, requiring a leg-

islator to “second the proposed [amendment] if it lacks for a

second” and to “reject any attempt to delay, table, or other-

wise prevent a vote by the full legislative body of the pro-

posed [amendment].” Jd. § 17(2)(b), (e).

Instead, the State argues that the Speech or Debate Clause

does not apply here because it protects legislators only

against prosecution or its equivalent. Pet. Br. 44. The

State’s own recitation of the governing law belies its argu-

ment. As the State notes (id. at 43), the “fundamental

purpose” of the Clause is to “free{ ] the legislator from

executive and judicial oversight that realistically threatens to

control his conduct as a legislator.” Gravel, 408 U.S. at

618.56 The Label Law plainly imposes both executive and

judicial oversight that “realistically threatens” to control

legislative conduct. It dictates the content of legislative

activity as a matter of Missouri law—on penalty of a nega-

tive ballot label—and is expressly intended to coerce that

activity. The labels are affixed by the state executive—the

Secretary of State—after she has audited representatives’

actions in Congress. And the Law provides for judicial

proceedings, in which a legislator who seeks to avoid a label

will have to explain and justify his or her legislative activi-

ties, including in suits brought by any dissatisfied voter.

anything “done in a session of the House by one of its members in

relation to the business before it’).

36 The State does not, and cannot, dispute that the Clause pre-

vents interference from both federal and state governments. See,

e.g., Hutchinson v. Proxmire, 443 U.S. 111 (1979) (applying

Clause to state court civil action); Brown & Williamson Tobacco

Corp. v. Williams, 62 F.3d 408 (D.C, Cir. 1995) (same).

The Speech or Debate Clause does not simply provide an

immunity from prosecution or judicial proceedings. The

Clause was directly modeled after the corresponding privi-

lege accorded Members of Parliament in England. See

United States v. Johnson, 383 U.S. 169, 177-178 (1966).

That English privilege, in turn, was enacted in response to

varied threats by the sovereign against legislative independ-

ence, including such actions as “issuing direct orders to the

Speaker to cease debate on sensitive topics” and “spreading

rumors of royal displeasure and threats of retaliation.”

Robert J. Reinstein & Harvey L. Silverglate, Legislative

Privilege and the Separation of Powers, 86 Harv. L. Rev.

1113, 1127 (1973). See also Carl Wittke, The History of

English Parliamentary Privilege 26-27 (1970) (noting royal

orders directing Parliament not to discuss certain issues).

The language of the Clause also makes clear that it does

not apply only to court proceedings. As codified, the English

privilege provided “[t]hat the Freedom of Speech, and

Debates or Proceedings in Parliament, ought not to be

impeached or questioned in any Court or Place out of Parlia-

ment.” 1 W. & M. Sess. 2, ch. 2 (1689). This language was

carried forward almost verbatim in the penultimate version of

the Constitution, which provided that “Freedom of speech

and debate in the Legislature shall not be impeached or ques-

tioned in any Court or place out of the Legislature.” 2

Farrand at 254 n.14 (emphasis added). The Committee of

Style made non-substantive changes to this language, in-

cluding collapsing “any Court or place” to “any other place.”

Id. at 593. Thus, the Clause was intended to protect legisla-

tors not only from judicial process, but from interference by

the executive in “any other place” outside of Congress.

The Label Law, which directs the state executive (and,

ultimately, the judiciary) to audit and penalize legislative

behavior, plainly violates that language. The Clause must be

read “broadly to effectuate its purposes.” Eastland v. United

States Servicemen’s Fund, 421 U.S. 491, 501 (1975). Its

“central role” is to “prevent intimidation of legislators by the

Executive and accountability before a possibly hostile judici-

ary.” Gravel, 408 U.S. at 617.37 Thus, the Court has held

that the principles of the Clause prevent instructions to a leg-

islator to vote in a particular way. In Spallone v. United

States, 493 U.S. 265 (1990), the Court invalidated an order

directing local legislators to vote in favor of certain legisla-

tion, on penalty of contempt sanctions. Although the Court

did so on equitable grounds, its decision was “informed” by

considerations underlying the legislative immunity doctrine,

id. at 278, which is co-extensive with the protections of the

Speech or Debate Clause, see Consumers Union, 446 U.S. at

732-733. As the Court held, “any restriction on a legislator’s

freedom undermines the ‘public good’ by interfering with the

rights of the people to representation in the democratic

process.” 493 U.S. at 279. Coercing legislators to vote

_ through a threat of fines contravened this principle because

such coercion was “designed to cause them to vote, not with

a view to the interests of their constituents or of the city, but

with a view solely to their own personal interests.” Jd.

The Label Law contravenes the Speech or Debate Clause

for the same reason. Under the Law, the “intimidation of

legislators by the Executive,” Gravel, 408 U.S. at 617, is

direct and severe. The Law—like the early royal edicts the

37 See also Supreme Court of Va. v. Consumers Union of the

U.S., 446 U.S. 719, 731 (1980) (Clause “insure[s] that the legisla-

tive function * * * may be performed independently without fear

of outside interference”); Eastland, 421 U.S. at 502 (same); United

States v. Brewster, 408 U.S. 501, 507 (1972) (purpose is to

“protect the integrity of the legislative process by insuring the

independence of individual legislators”); 1 The Works of James

Wilson 421 (Robert Green McCloskey ed. 1967) (“[I]t is indispen-

sably necessary, that [a legislator] should enjoy the fullest liberty

of speech, and that he should be protected from the resentment of

every one, however powerful, to whom the exercise of that liberty

may occasion offence.”).

original English privilege was intended to combat—ex-

pressly “instructs” legislators how to vote and conduct other

legislative activities, and establishes state-imposed penalties

intended to accomplish that result. Not surprisingly, the

various label laws had a palpable effect on the behavior of

Members of Congress during the short time the laws were in

effect. See supra at 8-11. It is thus of no moment that the

State enforces its instructions by using its ballot monopoly to

impose a misleading and negative ballot label, rather than by

fines or imprisonment. The purpose of legislative immunity

is to render “[l]jegislators * * * immune from deterrents to the

uninhibited discharge of their legislative duty.” Tenney v.

Brandhove, 341 U.S. 367, 377 (1951). Because it uses legal

sanctions to coerce representatives to vote according to the

purported wishes of a majority of statewide initiative voters

in 1996, the Label Law is plainly such a prohibited deterrent.

IV. THE LABEL LAW CONTRAVENES ARTICLE V

As every court to have ruled on the issue has held, coercing

federal legislators into proposing a constitutional amendment

contravenes Article VY of the Constitution. Under Article V,

the function of proposing amendments is given exclusively to

deliberative, representative bodies—Congress and state legis-

latures. The Label Law, which uses legal commands and

sanctions to cause Congress to propose an amendment,

*mpermissibly circumvents that lawful process.

Article V assigns specific roles to various constitutional

actors—and no role to some. Congress may propose amend-

ments. State legislatures may ratify amendments, and may

also compel Congress to call a national Convention for pro-

posing amendments. Yet not every actor has a direct role in

the process; the President, for example, has none. See Hawke

v. Smith, 253 U.S. 221, 229-230 (1920); Hollingsworth v.

Virginia, 3 U.S. (3 Dall.) 378 (1798). The people, too, have

a defined role to play: Congress may direct that an amend-

ment be ratified “by conventions of the people in each State.”

Thornton, 514 U.S. at 848-849 (Thomas, J., dissenting); see

Hawke, 253 U.S. at 227 (conventions are to “voice the will of

the people” and be “representative of the people”). The

people also influence the process indirectly by electing the

federal and state legislators who hold the amendment power.

Article V does not, however, assign “the people” a direct role

in proposing amendrnents,>* and the Tenth Amendment

reserves to them no umstated power to amend, see United

States v. Sprague, 282 U.S. 716, 733-734 (1931).

When a State, through voter initiative or otherwise, coerces

Members of Congress into proposing amendments, it usurps

a function Article V gives to others. In Hawke, the Court

held that a state legislature’s ratification of an amendment is

not subject to popular referendum because the. Framers did

not intend for ratification to be “left to a vote of the people.”

253 US. at 227. And in Leser v. Garnett, 258 U.S. 130

(1922), the Court held that “the function of a state legislature

in ratifying a proposed amendment to the federal Constitu-

tion, like the function of Congress in proposing the amend-

ment, * * * transcends any limitations sought to be imposed

by the people of a State.” Jd. at 137 (emphasis added).

Hawke and Leser thus stand for the proposition that voters

may not themselves ratify or propose constitutional amend-

ments, which are functions Article V gives to Congress, state

legislatures, and ratifying conventions. See Opinion of the

Justices, 160 N.E. 439, 440 (Mass. 1928).

Although Article V does not expressly provide that a state

government may not use legal sanctions to coerce Members

of Congress into proposing amendments, this is a “fair

38 See Dodge v. Woolsey, 59 U.S. 331, 348 (1855) (“the people

* * * have excluded themselves from any direct or immediate

agency in making amendments to [the Constitution], and have

directed that amendments should be made representatively for

them”); United States v. Verdugo-Urquidez, 494 U.S. 259, 265

(1990) (“ ‘the people’ seems to have been a term of art employed

in select parts of the Constitution”); cf. U.S. Const. art. I, § 2, cl. 1

(Representatives are chosen “by the People”).

—————

inference or implication from Article V.” Dillon v. Gloss,

256 U.S. 368, 375 (1921) (holding that amendments must be

ratified in a reasonable time, even though Article V “says

nothing about” that issue, id. at 371). Indeed, “[t]o argue

otherwise is to suggest that the Framers spent significant time

and energy in debating and crafting Clauses that could be ea-

sily evaded.” Thornton, 514 U.S. at 831. Just as voters

plainly could not evade Hawke by instructing state legisla-

tors, through coercive sanctions, to vote on ratification of an

amendment in accordance with a popular referendum, so a

State may not in the same manner usurp Congress’s role in

proposing amendments. Cf. Humphrey's Executor v. United

States, 295 U.S. 602, 629 (1935) (separation of powers

requires that each branch be “free from the control or coer-

cive influence, direct or indirect, of either of the others”’).59

Yet that is precisely what the Label Law seeks to do. As

explained in detail above, its codified instructions and coer-

cive labeling sanctions are a far cry from the “nonbinding,

advisory referendum” considered by then-Justice Rehnquist

in Kimble v. Swackhamer, 439 U.S. 1385, 1388 (1978). If

States or voters favor an amendment they believe Congress is

incapable of proposing, or unwilling to propose, Article V

prescribes a procedure by which the States—through their

legislatures—can compel Congress to call a convention for

that purpose. See The Federalist No. 85, at 526 (Hamilton).

The Label Law circumvents that constitutional process.

39 See also Pet. App. A22; cases cited supra note 4; AFL-CIO v.

Eu, 686 P.2d 609, 613 (Cal. 1984) (Article V “envisions legislators

free to vote their best judgment, responsible to their constituents

through the electoral process, not puppet legislators coerced or

compelled * * * to vote in favor of a proposal they may believe

unwise”) (striking down voter initiative requiring state legislators

to apply to Congress to convene a Convention or else suffer loss of

salary), State v. Waltermire, 691 P.2d 826 (Mont. 1984) (invali-

dating similar initiative that would also have forced legislators to

remain in session until they complied).

The Framers vested Congress and state legislatures, and

only those bodies, with the power to propose amendments so

as to “secur[e] deliberation and consideration before any

change can be proposed.” Hawke, 256 U.S. at 226; see

Story, supra, § 1821 (“The great principle [of Article V] is to

make the changes practicable, but not too easy; to secure due

deliberation, and caution”). Under the Label Law, however,

legislators are told—on pain of “threatened potential political

”"—“to do as the alleged majority of the people wish,

without any intellectual debate, deliberation, or consideration

of whether such action is in the best interest of all the peo-

ple.” Donovan, 931 S.W.2d at 127-128. Such a law contra-

venes the carefully crafted procedures of Article V.

CONCLUSION

For the foregoing reasons, the judgment of the Court of

Appeals should be affirmed.

Respectfully submitted,

JONATHAN S. FRANKLIN

H. CHRISTOPHER BARTOLOMUCCI

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5766

ARTHUR A. BENSON II*

GREGG LOMBARDI

ARTHUR BENSON & ASSOCIATES

4006 Central Avenue

P.O. Box 119007

Kansas City, Missouri 64171

(816) 531-6565

* Counsel of Record Counsel for Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.