Oregon Advisory Opinions September 25, 1981: OAG 81-71 (September 25, 1981)

OAG 81-71.

Chapter 248 of the Oregon Revised Statutes contains provisions governing the structure of major political parties in Oregon. The following is a summary of the pertinent provisions. ORS 248.015 provides for the election of precinct committee persons for each precinct. ORS 248.031 establishes county central committees comprised of the precinct committee persons of the county and declares:

ORS 248.033 provides for the county central committee's organizational meeting following the primary election at which precinct committee persons are elected; ORS 248.035 requires the transfer of property from the retiring county central committee to the newly elected one and provides for election of officers.

ORS 248.072 defines the status of the state central committee:

"The state central committee is the highest party authority in the state and may adopt rules or resolutions for any matter of party government which is not controlled by the laws of this state."

ORS 248.075 provides that members of the state central committee shall consist of two delegates from each county central committee and additional delegates in proportion to county party membership, selected by the county central committee,(fn1) and also provides for the organizational meeting of the state central committee; ORS 248.085 requires the transfer of property to the new state central committee from the retiring one and provides for election of officers.

ORS 248.012 generally provides that notice of a county central committee or state central committee meeting must be given not later than the sixth day before an anticipated meeting, otherwise the business of the meeting shall be invalid.

The United States Supreme Court has held that a political party exists as the result of an exercise by its members of the right of freedom of association and as such is protected by the First Amendment of the United States Constitution from governmental interference in determining who may participate in its decisions. We reviewed the applicable cases in 38 Op Atty Gen 765 (1977). As has more recently been said in Ferency v. Austin, 493 F Supp 683, 694 (D Mich 1980):

Such a concept was specifically adopted by the United States Supreme Court in Democratic Party of the United States v. LaFollette, _____ US _____, 67 L Ed2d 82 (1981).

However, these cases did not deal with statutes simply regulating party organizational structure, such as we are here concerned with. In Marchioro v. Chaney, 442 US 191 (1979), the Supreme Court dealt with a Washington statute

requiring each major political party to have a state committee consisting of two persons from each county. The Democratic party's state convention determined that the state committee, contra to statute, would also include one member from each of the state's legislative districts.

The United States Supreme Court held the statute valid and controlling, rather than the party's decision. The court said:

"The requirement that political parties form central or county committees composed of specified representatives from each district is common in the laws of the States. These laws are part of broader election regulations that recognize the critical role played by political parties in the process of selecting and electing candidates for state and national office. The State's interest in ensuring that this process is conducted in a fair and orderly fashion is unquestionably legitimate; 'as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.' Storer v. Brown, 415 US 724, 730, 39 L Ed 2d 714, 94 S Ct 1274. That interest is served by a state statute requiring that a representative central committee be established, and entrusting that committee with authority to perform limited functions, such as filling vacancies on the party ticket, providing for the nomination of Presidential electors and delegates to national conventions, and calling statewide conventions. Such functions are directly related to the orderly participation of the political party in the electoral process. . . ." Marchioro v. Chaney, supra, 442 US at 195-197. (Emphasis added.)

Marchioro thus appears to dispose of any claim that Oregon's statutes are invalid insofar as they establish central committees, prescribe their membership, and entrust them with functions relating to the electoral process. But ORS 248.031 and 248.075 go farther. They purport to make the central committees "the highest party authority" in their counties and the state, "for any matter of party government" (emphasis added) not controlled by state law.

In Washington, the Democratic State Committee plays a significant role in internal party affairs, and this was the basis for the asserted party right to increase committee membership beyond that prescribed by statute. In fact, there was no challenge in Marchioro to the state's right to regulate committee performance of electoral process functions. Marchioro v. Chaney, supra, 442 US at 197, n 12. Thus we have available neither analysis nor specific examples of how far the state can go in this regard.(fn2) Further, the challenge to the state's right to regulate committee performance of non-electoral process functions, i.e., those related to internal party affairs, missed the target because the state did not attempt to regulate those functions. Those functions were performed by the state committee pursuant only to authority granted by the party state convention.

In contrast to the situation in Oregon, where the state central committees are the highest party authority, the Washington parties' state conventions are the governing bodies and highest authority of the party. Marchioro, supra, 442 US at 193-194; King County Republican Central Committee v. Republican State Committee, 79 Wash2d 202, 211-212, 484 P2d 387 (1971). Although Oregon's statutes are presumptively constitutional, it can be strongly argued that Oregon has

gone further than Washington in attempting to regulate internal party matters and has contravened both the federal constitutional right to freedom of association and the corresponding rights guaranteed by the Oregon Constitution.

As noted above, the right of freedom of association is guaranteed by the First Amendment of the United States Constitution. It provides, in pertinent part:

"Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." US Const Amend I.

The freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the state. Williams v. Rhodes, 393 US 23, 30-31 (1968).

Political parties have been characterized by the Oregon Supreme Court as ". . . voluntary associations, pure and simple. . . ." Ladd v. Holmes, 40 Or 167, 184, 66 P 714 (1901). The freedom to associate with others in a voluntary association such as a political party for the common advancement of political beliefs and ideas is a form of orderly group activity protected by the First and Fourteenth Amendments. Kusper v. Pontikes, 414 US 51, 56-57 (1973); see Cousins v. Wigoda, 419 US 477, 487 (1975). Any interference with the freedom of a political party is simultaneously an interference with the freedom of its adherents. Sweezy v. New Hampshire, 354 US 234, 250 (1957); see Democratic Party of the United States, supra, 67 L Ed2d at 95. Yet it is clear that neither the right to associate nor the right to participate in political activities is absolute. Buckley v. Valeo, 424 US 1, 25 (1976).

If it is judged that Oregon's statutes constitute a substantial burden on the right to associate for political purposes, they will be held unconstitutional unless it can be shown that those statutes are essential to serve a compelling state interest. Storer v. Brown, 415 US 724, 729 (1974). A mere showing of a legitimate state interest in regulating internal political party affairs will not suffice, for a state may not pursue a course of action that unnecessarily restricts fundamental personal liberties. Kusper, supra, 414 US at 58-59; see Storer, supra, 415 US at 729; Buckley, supra, 424 US at 25.

Oregon's statutory regulation of internal party affairs has its roots in ORS 248.031 and ORS 248.072. The first statute, ORS 248.031, provides that the county central committees are the highest party authority in county party matters and may adopt rules or resolutions for any matters of party government within the county which is not controlled by state law. The second statute, ORS 248.072, provides that the state central committee is the highest party authority in the state and may adopt rules or resolutions for any matter of party government not controlled by state law. Such a distribution of party authority, including authority over non-electoral process matters, might not be unconstitutional per se. However, the statutes go further and detail how the membership of the respective central committees shall be selected. ORS 248.015, 248.031,

248.075. Other statutes regulate the timing of organizational meetings, transfer of property and election of committee officers and executive committees. ORS 248.033, 248.035, 248.048, 248.075, 248.085.

There can be little doubt that a statutory scheme which declares a statutorily created central committee as the "highest party authority for any matter of party government" constitutes a substantial burden on the right of party members to associate for political purposes. While the state has a compelling interest in regulating political parties with respect to their electoral process functions, it is difficult to perceive any compelling reason for regulating their internal party functions such as organizing and administering the party's administrative apparatus, and furthering the party's objectives of influencing policy and electing its members to public office. Thus the Oregon statutes may be held to be violative of the federal constitutional right to association.

Although the freedom of association is guaranteed by the First Amendment of the United States Constitution, it is not entirely clear where the freedom to associate is found in that amendment. It is closely allied to freedom of speech, Buckley, supra, 424 US at 425, but there is also a close nexus between it and the freedom of speech and assembly. NAACP v. Alabama, 357 US 449, 460 (1958).

Since similar constitutional rights of speech and assembly are guaranteed by the state constitution, it may not be necessary to decide whether the federal constitution has been violated. Oregon Const Art I, sec 8 provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Oregon Const Art I, sec 26 provides:

"No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances [sic]."

We thus conclude that Oregon's statutes governing county and state central committees of major political parties are constitutional insofar as they relate to administration of the electoral process by the state. In addition, we conclude that while those statutes are presumptively constitutional with respect to their regulation of purely internal party government, they are subject to strong challenge as an interference with constitutionally guaranteed rights of association, and may well be held to be unconstitutional on that basis. In that case, we note that it will be difficult to separate the permissible statutory regulation from the constitutionally impermis

sible regulation, and the entire statutory scheme may fall if challenged.