# Respondents Brief — Cook v. Gralike

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 510

## 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
ee

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)

il
TABLE OF CONTENTS

QUESTION PRESENTED ..0...0cccscsocssceorscseorscsscsscescese

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

3.
2.

I.

THE LABEL LAW EXCEEDS THE
STATE’S CONSTITUTIONAL AUTH-

A. The Label Law Exceeds the State’s
Power Under the Elections and Qualifi-
I

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

12

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
ee

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

iv
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.

Vv

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

vi
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

ix

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

Xx
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) 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).

39

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).

40

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.

41

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

42

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.

43

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

a4

“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).

45

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

46

“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.”).

47

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

48

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”).

—————

49

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).

50

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0349%3A07. Public record. Not legal advice.