No. 99-929 

In the Supreme Court of the United States 

REBECCA MCDOWELL COOK, PETITIONER 

v. 

DON GRALIKE, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
DAVID W. OGDEN 

Assistant Attorney General 
BARBARA D. UNDERWOOD 

Deputy Solicitor General 
PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 
DOUGLAS N. LETTER 
DANA J. MARTIN 

Attorneys 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

At issue in this case are provisions of the Missouri 
Constitution (the Missouri Amendments) that (a) 
instruct Members of Congress elected from Missouri to 
exercise their legislative powers in favor of a proposed 
amendment to the United States Constitution that 
would limit the terms of Members of Congress, (b) re- 
quire the label “DISREGARDED VOTERS’ IN- 
STRUCTION ON TERM LIMITS” to appear on the 
ballot next to the name of any incumbent candidate for 
Congress who is found by the Missouri Secretary of 
State to have failed to follow that instruction, and (c) 
require the label “DECLINED TO PLEDGE TO 
SUPPORT TERM LIMITS” to appear on the ballot 
next to the name of any non-incumbent candidate for 
Congress who declines to pledge to act in accordance 
with the instruction if elected. 

The United States will address the following ques- 
tions: 

1. Whether the Missouri Amendments exceed the 
State’s power to regulate federal elections under the 
Elections Clause, U.S. Const. Art. I, § 4, Cl. 1, because 
they are inconsistent with the fundamental constitu- 
tional structure of the national government. 

2. Whether the Missouri Amendments violate the 
First Amendment. 

3. Whether the Missouri Amendments violate the 
Speech or Debate Clause, U.S. Const. Art. I, § 6, Cl. 1. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ..................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

5 

Argument: 

I. The Missouri Amendments are inconsistent 
with fundamental constitutional principles de- 
fining and limiting the authority of the States 
under the Elections Clause to regulate federal 
elections .......................................................................... 

8 

II. The Missouri Amendments violate the First 
Amendment .................................................................... 15 

III. The Missouri Amendments violate the Speech 

or Debate Clause ........................................................... 
21 

IV. The State’s historical examples of instructions to 
legislators and ballot notations do not salvage the 

Missouri Amendments ................................................. 
26 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

American Party of Tex. v. White, 415 U.S. 767 
(1974) ........................................................................................ 18 

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

10, 16, 18, 29 

Anderson v. Martin, 375 U.S. 399 (1964) .......................... 
11 

Board of Comm’rs v. Umbehr, 518 U.S. 668 (1996) ... 
17, 18, 20 

Board of Regents of the Univ. of Wis. Sys. v. 

Southworth, 120 S. Ct. 1346 (2000) .................................... 

10 

Burdick v. Takushi, 504 U.S. 428 (1992) .............. 
9, 10, 16, 29 

Burson v. Freeman, 504 U.S. 191 (1992) ........................... 
9 

Coalition to End the Permanent Congress v. 

Runyon, 979 F.2d 219 (D.C. Cir. 1992) ............................. 

10 

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868) .............. 14 

(III) 

IV 

Cases—Continued: Page 

Doe v. McMillan, 412 U.S. 306 (1973) ............................ 
22, 23 

Dombrowski v. Eastland, 387 U.S. 82 (1967) ................... 
22 

Eastland v. United States Servicemen’s Fund, 421 

U.S. 491 (1975) ........................................................................ 

22 

Hurley v. Irish-American Gay, Lesbian & Bisexual 

Group, 515 U.S. 557 (1995) .................................................. 

17 

Hutchinson v. Proxmire, 443 U.S. 111 (1979) .................. 
22 

Illinois State Bd. of Elections v. Socialist Workers 

Party, 440 U.S. 173 (1979) ................................................... 

9 

Jenness v. Fortson, 403 U.S. 431 (1971) ............................. 
18 

Kilbourn v. Thompson, 103 U.S. 168 (1881) ................... 
22, 23 

McLain v. Meier, 637 F.2d 1159 (8th Cir. 1980) ............... 
10 

Meese v. Keene, 481 U.S. 465 (1987) ................................... 
10 

Munro v. Socialist Workers Party, 479 U.S. 189 
(1986) ........................................................................................ 18 

NEA v. Finley, 524 U.S. 569 (1998) ................................... 

18 

Norman v. Reed, 502 U.S. 279 (1992) ................................. 
20 

Ray v. Blair, 343 U.S. 214 (1952) ......................................... 
28 

Rosario v. Rockefeller, 410 U.S. 752 (1973) ....................... 
29 

Rosenberger v. Rector & Visitors of Univ. of Va., 
515 U.S. 819 (1995) ........................................................ 
10, 17-18 

Saenz v. Roe, 526 U.S. 489 (1999) ....................................... 
14 

Sangmeister v. Woodard, 565 F.2d 460 (7th Cir. 
1977), cert. denied, 435 U.S. 939 (1978) ............................. 
10 

Spallone v. United States, 493 U.S. 265 (1990) ................ 
19 

State ex rel. McCue v. Blaisdell, 118 N.W. 141 
(N.D 1908) ............................................................................... 
28 

Storer v. Brown, 415 U.S. 724 (1974) .................................. 
16 

Tashjian v. Republican Party of Conn., 479 U.S. 
208 (1986) ................................................................................. 
16 

Timmons v. Twin Cities Area New Party, 520 U.S. 
351 (1997) ................................................................................. 
10 

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 
(1995) ........................................................................... 
8, 10, 11, 13 

14, 15, 16, 27 

V 

Cases—Continued: Page 

United States v. Brewster, 408 U.S. 501 (1972) ....... 
22, 23 

United States v. Helstoski, 442 U.S. 477 (1979) ............ 
22, 23 

Constitutions: 

U.S. Const.: 

Art. I: 
§ 2: 

Cl. 1 ................................................................................... 

9 

Cl. 2 ............................................................................. 
5, 15, 27 

§ 3, Cl. 3................................................................................ 
5 

§ 4, Cl. 1 (Elections Clause) .................................. 
1, 5, 8, 9, 16 

§ 6, Cl. 1 (Speech or Debate Clause) ............... 
1, 5, 7, 21, 22, 

24, 25, 26, 27 
Art. V ........................................................................................ 

5, 15 

Amend. I ................................................................... 
1, 5, 6, 9, 15 

16, 17, 19, 20, 29 
Amend. XII ............................................................................. 

28 

Amend. XIV............................................................................. 16 

Equal Protection Clause ................................................... 
16 

Amend. XV............................................................................... 9 

Amend. XVII .................................................................. 

13, 26, 27 

§ 1............................................................................................ 9 

Amend. XIX ............................................................................ 

9 

Amend. XXIV ......................................................................... 
9 

Amend. XXVI ......................................................................... 
9 

Mo. Const. Art. VIII: 
§ 15 ............................................................................................ 
2 

§ 16 ............................................................................................ 
2, 3 

§ 17(1) ....................................................................................... 
2, 20 

§ 17(2) ....................................................................................... 
3, 24 

§ 17(2)(a) .................................................................................. 
19 

§ 17(2)(a)-(h) ............................................................................ 
3 

§ 17(2)(c) ................................................................................ 
19, 24 

§ 17(2)(e) .................................................................................. 
24 

§ 17(2)(g) .................................................................................. 
19 

§ 18(1) ....................................................................................... 3 

VI 

Constitution—Continued: Page 

§ 18(3) ....................................................................................... 
3, 19 

§ 19(1) ....................................................................................... 
3 

§ 19(2) ..................................................................................... 
23, 24 

§ 19(3) ....................................................................................... 
4 

§ 19(5) ................................................................................. 
4, 16, 24 

§ 19(6) ....................................................................................... 
4, 16 

Miscellaneous: 

The Federalist (Clinton Rossiter ed., 1961): 

No. 15 (Hamilton) .................................................................. 

12 

No. 52 (Madison) .................................................................... 
12 

No. 57 (Madison) ..................................................................... 
15 

No. 59 (Hamilton) .................................................................. 
8, 12 

1 George H. Haynes, The Senate of the United States: 

Its History and Practice (1938) .......................................... 

28 

1 The Records of the Federal Convention of 1787 (Max 

Frand ed., rev. ed. 1966) ....................................................... 12 

In the Supreme Court of the United States 

REBECCA MCDOWELL COOK, PETITIONER 

v. 

DON GRALIKE, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS 

INTEREST OF THE UNITED STATES 

This case involves an attempt by the State of Missouri to 
require that Members of Congress elected from that State 
deploy their legislative authority in accordance with 
instructions from the State on an issue relating to the 
structure and governance of the federal union. The Amend- 
ments to the Missouri Constitution under review raise 
serious questions about the fundamental constitutional 
structure of the national government. Those Amendments 
also raise serious questions about the authority of the States 
under the Elections Clause, the First Amendment, and the 
Speech or Debate Clause to influence the outcome of federal 
elections. The United States has a substantial interest in the 
resolution of those questions. 

(1) 

2 

STATEMENT 

1. This case involves a constitutional challenge to amend- 
ments to the Missouri Constitution (hereinafter Missouri 
Amendments or Amendments) adopted by the voters of that 
State in a ballot initiative in 1996. The Missouri Amend- 
ments declare the “intention” of the “people of Missouri” 
that a specific amendment to the United States Constitution 
be adopted. Mo. Const. Art. VIII, § 15. The Amendments 
then set forth the text of that proposed constitutional 
amendment, which would limit Members of the United 
States House of Representatives to three terms and United 
States Senators to two terms, and would empower the 
several States to adopt longer or shorter limits for their 
congressional delegations. Id. Art. VIII, § 16. 

The Amendments “instruct” each Senator and Repre- 
sentative elected from Missouri to use “all of his or her 
delegated powers to pass the Congressional Term Limits 
Amendment set forth [in Section 16].” Mo. Const. Art. VIII, 
§ 17(1). Pursuant to that instruction, a Member of Congress 
from Missouri must, if an appropriate occasion arises, 
perform one or more specified legislative acts in support of 
the proposed term-limits amendment.1 If a Senator or 

1 In particular, a Member of Congress from Missouri must (a) vote in 
favor of the proposed amendment if and when it is brought to a vote, (b) 
second the proposed amendment if a necessary second is lacking at any 
congressional proceeding, (c) propose or otherwise bring the proposed 
amendment to a vote of the pertinent legislative body if no other legislator 
does so, (d) vote in favor of bringing the proposed amendment to a vote 
before any committee or subcommittee on which he or she serves, (e) 
reject any attempt to delay or table a vote on the proposed amendment, (f) 
vote against any proposed term-limits amendment that would establish 
longer term limits than Missouri’s proposed amendment, (g) not sponsor 
any proposed amendment or law that would increase term limits beyond 
those in Missouri’s proposed amendment, and (h) ensure that all votes on 

3 

Representative from Missouri fails to perform such a 
legislative act on the appropriate occasion, then the label 
“DISREGARDED VOTERS’ INSTRUCTION ON TERM 
LIMITS” must be printed adjacent to that Member’s name 
on the next primary and general election ballots. Id. Art. 
VIII, § 17(2). 

Non-incumbent candidates for Congress from Missouri 
are “given an opportunity” to take a specific pledge indicat- 
ing support for the proposed term-limits amendment. Mo. 
Const. Art. VIII, § 18(1). The pledge states: “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, I pledge to vote in such 
a way that the designation ‘DISREGARDED VOTERS’ 
INSTRUCTION ON TERM LIMITS’ will not appear ad- 
jacent to my name.” Id. Art. VIII, § 18(3). Thus, non- 
incumbent candidates must undertake that, if elected, they 
will perform specific legislative acts in support of the term- 
limits amendment. If a non-incumbent candidate declines to 
take the pledge, then the label “DECLINED TO PLEDGE 
TO SUPPORT TERM LIMITS” must be printed next to his 
name on the primary and general election ballots. Id. Art. 
VIII, § 18(1). That label must be affixed even if the non- 
incumbent candidate supports some variant of term limits 
other than the one set forth in Section 16. 

The Secretary of State of Missouri (Secretary) is assigned 
responsibility for determining whether candidates shall have 
the specified labels placed next to their names on the ballots. 
Mo. Const. Art. VIII, § 19(1). For incumbents, the Secretary 
must make that determination “based upon each member of 
Congress’s action during their current term of office and any 
action taken in any concluded term, if such action was taken 

term limits are recorded and made publicly available. Mo. Const. Art. 
VIII, § 17(2)(a)-(h). 

4 

after the determination and declaration was made by the 
Secretary of State in a previous election.” Id. Art. VIII, 
§ 19(3). 

The Secretary’s determinations with respect to both 
incumbents and non-incumbents may be appealed to the 
Missouri Supreme Court, either by a candidate (if the Secre- 
tary determines that the candidate has not complied with the 
provisions and a label should therefore be placed next to the 
candidate’s name on the ballot) or by any elector (if the 
Secretary determines that the candidate has complied and a 
label is therefore not required). Mo. Const. Art. VIII, 
§ 19(5)-(6). If the Secretary determines that a ballot label is 
required for a candidate and the candidate appeals to the 
Missouri Supreme Court, the candidate has the burden of 
demonstrating by clear and convincing evidence that the 
label should not be placed next to his name on the ballot. Id. 
Art. VIII, § 19(6). If the Secretary determines that the 
ballot label is not required for a candidate and an elector 
appeals, the Secretary has the burden of demonstrating by 
clear and convincing evidence that the label should not be 
placed next to the candidate’s name. Id. Art. VIII, § 19(5). 
In effect, therefore, a label must be placed next to a candi- 
date’s name unless there is clear and convincing evidence 
that the candidate has performed, on an appropriate occa- 
sion, one or more specific acts in Congress to support the 
term-limits amendment (in the case of an incumbent) or has 
promised to do so if elected (in the case of a non-incumbent). 

2. On December 11, 1996, respondent Gralike, a resident 
and voter in Missouri’s Third Congressional District and a 
candidate for House of Representatives in 1996 and 1998, 
filed this lawsuit in district court, contending that the 

5 

Missouri Amendments are unconstitutional.2 The district 
court ruled the Amendments invalid on three grounds: (a) 
they impose qualifications for service in Congress beyond 
those enumerated in the Qualifications Clauses of Article I, 
Section 2, Clause 2, and Article I, Section 3, Clause 3 (see 
Pet. App. A32, A42-A46); (b) they infringe the First Amend- 
ment rights of candidates for Congress by compelling them 
to take a position on a matter of public concern (see id. at 
A32, A47-A52); and (c) they coerce legislators into voting for 
the proposed term-limits amendment in accordance with the 
ballot initiative’s instruction, and thereby impermissibly 
involve the people in the formal process of amendment of the 
Constitution, in violation of Article V (see id. at A32, A61). 

The court of appeals affirmed. Pet. App. A1-A26. The 
court held the Missouri Amendments invalid on four 
grounds. Like the district court, the court of appeals 
concluded that the Amendments violate the First Amend- 
ment (see id. at A8-A14), the Qualifications Clauses (see id. 
at A15-A19), and Article V (see id. at A15-A19). In addition, 
the court ruled (id. at A14-A15) that the Amendments 
violate the Speech or Debate Clause, U.S. Const. Art. I, § 6, 
Cl. 1, reasoning that they “establish[] a regime in which a 
state officer * * * is permitted to judge and punish 
members of Congress for their legislative actions or posi- 
tions.” Pet. App. A15. 

SUMMARY OF ARGUMENT 

I. The Missouri Amendments exceed the States’ power 
to operate federal elections, as defined and limited by the 
Elections Clause. The Elections Clause permits the States 
only to make nondiscriminatory and reasonable procedural 

2 While this case was pending on appeal, respondent Mike Harman, a 
candidate for Congress in Missouri’s Seventh District in 1998, intervened 
as appellee to challenge the Amendments. Resp. Br. in Opp. 5. 

6 

regulations of federal elections to ensure their orderliness 
and integrity, not to use their power over the ballot to 
influence the outcome of elections based on substantive state 
policy. The States also may not use their power over federal 
elections in a manner inconsistent with fundamental consti- 
tutional principles governing the structure of the national 
government. The Amendments are inconsistent with such 
principles, in three respects. First, the Amendments under- 
mine principles of representative democracy inherent in the 
national government by manipulating the ballot, over which 
the State has monopoly power, to send a powerful signal to 
voters at the moment of choosing that a particular candidate 
has not accepted the people’s will and does not deserve their 
trust and confidence. Second, by interjecting the State’s 
position on the issue of term limits into the voting booth, the 
Amendments interfere with the direct connection between 
the people of the State and their federal representatives, a 
relation the Framers deemed essential to the success of the 
union. Finally, by seeking to require that federal legislators 
vote in accordance with a particular state policy, the Amend- 
ments undermine federal legislators’ obligation to act in the 
national interest and on behalf of all the citizens of the 
United States, not just residents of their own State. 

II. The Amendments violate the First Amendment 
rights of candidates for federal office. The Amendments re- 
quire, as a condition of obtaining a ballot position unimpaired 
by a pejorative state label, that a candidate demonstrate 
adherence to the state policy of support for the proposed 
term-limits amendment. The Amendments therefore 
operate as an unconstitutional condition on ballot access, re- 
quiring candidates to express a particular viewpoint on a 
particular subject matter in order to obtain a benefit from 
the State. Because the condition and the ballot label are 
viewpoint-based, and because they significantly impair a 
noncompliant candidate’s ability to present himself to voters 

7 

for serious consideration on an equal footing, the Amend- 
ments require strict scrutiny. The Amendments are not, 
however, narrowly tailored to promote a compelling state 
interest. Although the State argues that the labels promote 
voter education, the State could advance that interest 
without manipulating the ballot, and the labels are mis- 
leading in any event. 

III. The Amendments also violate the Speech or Debate 
Clause. The Speech or Debate Clause prohibits the govern- 
ment from imposing a burden on a Member of Congress 
based on evidence of the Member’s legislative activity. The 
Clause also prohibits, in litigation affecting the Member’s 
personal interest, the introduction into evidence of the Mem- 
ber’s votes and other legislative activity. The Amendments 
contravene these principles. The Amendments require the 
Secretary of State to examine federal legislators’ voting 
records and other legislative activity to determine whether 
the Member will be assigned a pejorative ballot label. The 
Amendments also require that a Member demonstrate and 
justify his legislative record to a state official by clear and 
convincing evidence in order to avoid such a ballot label. The 
Clause does not permit state officials to require that 
Members of Congress give evidence of their legislative acti- 
vity in order to avoid a state-imposed burden. 

IV. Various historical examples of instructions to legis- 
lators and ballot notations put forward by the State do not 
support the constitutionality of the Amendments. None of 
those examples involved a state-imposed condition that a 
candidate adopt a particular viewpoint on a particular sub- 
stantive issue in order to obtain unimpaired access to the 
ballot in a popular election. None of them, therefore, is appo- 
site to analysis of the Missouri Amendments. 

8 

ARGUMENT 

I. THE MISSOURI AMENDMENTS ARE INCON- 
SISTENT WITH FUNDAMENTAL CONSTITU- 
TIONAL PRINCIPLES DEFINING AND LIMITING 
THE AUTHORITY OF THE STATES UNDER THE 

ELECTIONS CLAUSE TO REGULATE FEDERAL 
ELECTIONS 

1. The authority of the States to regulate congressional 
elections is defined and limited by the Elections Clause, U.S. 
Const. Art. I, § 4, Cl. 1, which authorizes the States to 
prescribe “[t]he Times, Places, and Manner of holding 
Elections for Senators and Representatives.” The Framers 
of the Constitution recognized benefits in permitting the 
States, which had experience in running elections, to operate 
elections for the new national government as well, but they 
also perceived that the States might abuse their powers over 
federal elections to undermine the union. See The Federalist 
No. 59, at 363 (Hamilton) (Clinton Rossiter ed. 1961)). The 
Convention therefore designed the Elections Clause as a 
narrow delegation of authority, not a plenary grant of power, 
to the States. The Framers conceived the power granted to 
the States in the Elections Clause as restricted to the 
authority “to issue procedural regulations, and not as a 
source of power to dictate electoral outcomes, to favor or dis- 
favor a class of candidates, or to evade important constitu- 
tional restraints.” U.S. Term Limits, Inc. v. Thornton, 514 
U.S. 779, 833-834 (1995) (USTL). 

The Missouri Amendments fail to respect those limitations 
on the State’s authority under the Elections Clause. They 
are designed precisely to “dictate electoral outcomes” and to 
“disfavor a class of candidates” by affixing a pejorative label 
to the name of any candidate on the ballot who disagrees 

9 

with state orthodoxy on the subject of term limits.3 They 
also “evade important constitutional restraints”—indeed, 
they are inconsistent with fundamental constitutional princi- 
ples governing the structure of the federal government. 

2. The Missouri Amendments are inconsistent with the 
fundamental constitutional principle that Members of Con- 
gress must be chosen in free and fair elections. The impor- 
tance of elections under the Constitution is manifest in its 
provisions for election of Representatives, U.S. Const. Art. 
I, § 2, Cl. 1, and Senators, Amend. XVII, § 1, and for the 
steady expansion of the franchise over time to eliminate 
qualifications of race, Amend. XV, sex, Amend. XIX, failure 
to pay a poll tax, Amend. XXIV, and age, Amend. XXVI. 
This Court has repeatedly observed that “voting is of the 
most fundamental significance under our constitutional 
structure,” Burdick v. Takushi, 504 U.S. 428, 433 (1992) 
(quoting Illinois State Bd. of Elections v. Socialist Workers 
Party, 440 U.S. 173, 184 (1979)). 

Implicit in the idea of a fair election are the twin notions of 
a robust competition for votes prior to the election, and the 
protection of the voter from undue influence at the moment 
of deciding and casting a vote. Toward the latter end, this 
Court has emphasized that “protecting voters from confusion 
and undue influence,” Burson v. Freeman, 504 U.S. 191, 199 
(1992) (plurality opinion), is a compelling governmental in- 
terest. Thus, the State may prohibit campaigning within 100 
feet of the entrance to a polling place on election day. 

The authority to operate federal elections, conferred on 
the States by the Elections Clause, does not include the 
authority to attempt to favor certain candidates and disfavor 
others. Indeed, the States’ authority to regulate federal 
elections extends only to “generally applicable and even- 

3 For much the same reason, they violate the First Amendment. See 
pp. 15-21, infra. 

10 

handed restrictions that protect the integrity and reliability 
of the electoral process itself,” see Anderson v. Celebrezze, 
460 U.S. 780, 788 n.9 (1983), and not to efforts to influence 
the outcome. While government officials may undoubtedly 
engage in pre-election speech concerning the merits of the 
candidates in an election, the State may not use its power to 
administer elections to overbear the right of “the people [to] 
choose whom they please to govern them.” USTL, 514 U.S. 
at 793 (internal quotation marks omitted).4 

The State’s power over the ballot, moreover, presents 
special dangers of undue influence in the outcome of an 
election. By its nature, the ballot is not a public forum in 
which numerous participants can engage in a debate over 
issues.5 Rather, the State has a monopoly over the ballot 

4 Several courts have invalidated attempts to favor certain candidates 
or parties by assigning them preferred positions on the ballot. See, e.g., 
McLain v. M e i e r , 637 F.2d 1159, 1167 (8th Cir. 1980); Sangmeister v. 
Woodard, 565 F.2d 460, 465-467 (7th Cir. 1977), cert. denied, 435 U.S. 939 
(1978); see also Coalition to End the Permanent Congress v. Runyon, 979 
F.2d 219, 225 (D.C. Cir. 1992) (separate opinion of Silberman, J.) 
(explaining vote to invalidate part of congressional franking statute 
because “the very nature of American constitutional democracy requires 
that voters be able to choose freely between at least two viable parties or 
candidates”). 

5 The Court has often emphasized that ballots “serve primarily to 
elect candidates, not as forums for political expression.” Timmons v. Twin 
Cities Area New Party, 520 U.S. 351, 363 (1997); see also Burdick v. 
Takushi, 504 U.S. 428, 438 (1992); id. at 445 (Kennedy, J., dissenting) 
(“the purpose of casting, counting, and recording votes is to elect public 
officials, not to serve as a general forum for political expression”). This 
case therefore does not require the Court to ascertain general constitu- 
tional limits on the broad category of “government speech.” Cf. Board of 
Regents of the Univ. of Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1357 
(2000); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833- 
834 (1995); Meese v. Keene, 481 U.S. 465, 484 (1987). This case does not 
involve discussion of issues, or even elections, by government officials in a 
public forum. Nor does it concern the government’s right to publish voter 

11 

and is in a position to deploy that power to affect the 
outcome of elections. 

The Missouri Amendments have the purpose and effect of 
influencing the outcome of elections. Missouri uses the ballot 
labels to assert to the voters that certain candidates have 
not accepted the people’s will and do not deserve their trust 
and confidence, but it permits no rebuttal to those assertions 
in the voting booth. At the moment of choosing among 
candidates, therefore, voters are left with the powerful 
impression created by the ballot labels.6 Cf. Anderson v. 
Martin, 375 U.S. 399, 402 (1964) (invalidating State’s use of 
ballot labels indicating the race of a candidate, and noting 
that a ballot “label on a candidate [appears] at the most 
crucial stage in the electoral process–-the instant before the 
vote is cast”). Such use of the State’s power over the ballot 
to influence the outcome of an election is inconsistent with a 
basic principle of popular sovereignty—“the right of the 
people to vote for whom they wish.” USTL, 514 U.S. at 820. 

information guides about an election. Rather, this case involves only the 
State’s exercise of its monopoly power over the ballot itself to affix a label 
that disfavors candidates based on their position on one particular issue. 

6 The fact that the Missouri Amendments were at the time of their 
adoption supported by a majority of the voters does not cure their 
constitutional defect. The ballot labels required by the Amendments have 
the potential to confuse voters or to overbear their free choice at each 
subsequent election. For example, even if a majority of a particular con- 
gressional district does not support term limits, the ballot labels declare 
that a noncompliant incumbent has “DISREGARDED [THE] VOTERS’ 
INSTRUCTION ON TERM LIMITS,” suggesting that the Member has 
disregarded the wishes of all the voters, not just the majority that 
supported the proposed term-limits amendment in the initiative. 
Similarly, a majority of the voters of the entire State might now or in the 
future no longer support the proposed term-limits amendment, and yet if 
the constitutional amendment requiring the ballot labels had not yet been 
repealed, a candidate for Congress who publicly opposed term limits could 
nonetheless be labeled as noncompliant with the voters’ wishes. 

12 

3. In addition to introducing bias into the election, the 
Missouri Amendments have the defect of interjecting the 
State between the people of Missouri and their own federal 
representatives, thereby interfering with a direct relation 
between them that is an essential element of the constitu- 
tional structure. 

The Framers saw the “great and radical vice” of the 
Articles of Confederation as “the principle of LEGIS- 
LATION for STATES or GOVERNMENTS, in their COR- 
PORATE or COLLECTIVE CAPACITIES, and as contra- 
distinguished from the INDIVIDUALS of whom they 
consist.” The Federalist No. 15, at 108 (Hamilton). The 
Framers therefore discarded the confederal structure of the 
Articles for a national government that “extend[ed] the 
authority of the Union to the persons of the citizens.” Id. at 
109. But the Framers perceived that the States might 
attempt to subvert the connection between the people and 
the union, and so the question arose how to ensure that 
“[t]he people of America [remain] warmly attached to the 
government of the Union, at times when the particular 
rulers of particular States * * * may be in a very opposite 
temper.” The Federalist No. 59, at 365-366 (Hamilton). 

To the Framers, the solution lay in the republican 
character of the union. As Madison observed at the Con- 
vention, the union could be “stable and durable” only if the 
legislature “should rest on the solid foundation of the people 
themselves,” rather than an intervening body. 1 The 
Records of the Federal Convention of 1787, at 50 (Max 
Farrand ed., rev. ed. 1966). The Framers therefore required 
biennial elections to the House of Representatives to ensure 
that the federal Congress would retain “an immediate de- 
pendence on, and an intimate sympathy with, the people.” 
The Federalist No. 52, at 327 (Madison). The Framers also 
prohibited the States from adding qualifications for service 
in the Congress beyond those established in the Constitu- 

13 

tion, which might undermine popular support for the new 
national legislature. See USTL, 514 U.S. at 806-808. As the 
Court explained in USTL, the Constitution established that 
“the right to choose representatives belongs not to the 
States, but to the people.” Id. at 820-821.7 

The Missouri Amendments’ manipulation of the ballot for 
federal elections impermissibly interferes with the connec- 
tion between the people of Missouri and the union. In as- 
signing a pejorative ballot label to a candidate for federal 
office who does not accept the State’s orthodoxy of support 
for a particular measure, the State announces its judgment 
that the candidate does not deserve the trust and confidence 
of the people of Missouri. It does so, moreover, in the voting 
booth and at the moment of voting–-the very point on which, 
the Framers understood, the success of the union depends. 
By interposing its own judgment about the preferable 
outcome of a federal election, the State intrudes on “the most 
basic relation between the National Government and its 
citizens, the selection of legislative representatives.” USTL, 
514 U.S. at 842 (Kennedy, J., concurring).8 

4. The Missouri Amendments are also inconsistent with 
the constitutional structure of the union because they seek to 
constrain by law the legislative activity of federal officials. 
The Amendments attempt to inhibit the election or reelec- 

7 With the adoption of the Seventeenth Amendment in 1913, this prin- 
ciple became applicable to the Senate as well. USTL, 514 U.S. at 821. 

8 This interference is not minimized by the fact that the measure 
directing the ballot labels to be assigned to noncompliant candidates was 
adopted by popular initiative rather than legislation. The ballot labels are 
the policy of the State no less than they would be if they had been adopted 
by legislation—just as the ballot exclusions struck down in USTL, which 
were also adopted by popular initiative, were the official policy of the 
State. See USTL, 514 U.S. at 809 n.19. Moreover, the determination 
whether to apply the labels to any particular candidate is made by the 
Secretary, an elected state official. 

14 

tion of a candidate who has not acted or will not promise to 
act in accordance with the instructions of the State of 
Missouri. Federal legislators, however, are charged with 
acting on behalf of all of the nation’s citizens, regardless of 
their State of residence. See USTL, 514 U.S. at 837-838 
(“Members of Congress * * * become, when elected, 
servants of the people of the United States[;] * * * they 
occupy offices that are integral and essential components of a 
single National Government.”). The Amendments under- 
mine the national character of the union, which depends on a 
connection between Members of Congress and the people of 
all the States of the union.9 Because, under the Constitu- 
tion, Members of Congress legislate in the national interest, 
not merely the interest of the State from which they are 
elected, a State may not seek to confine a federal legislator’s 
authority to consider the national interest by handicapping 
him on the ballot if the Member (or would-be Member) will 
not act in accordance with the official policy of the State. 

Indeed, the Missouri Amendments may well be more 
disruptive of the national character of the union than were 
the Arkansas term limits invalidated in USTL. The provi- 
sion at issue in USTL did not seek to constrain Members of 
Congress elected from Arkansas to vote in any particular 
way. Every Member elected from Arkansas still remained 
free to consider the national interest on every issue, and to 
vote in accordance with that Member’s judgment of the 
national interest. The Missouri Amendments, by contrast, 
endeavor to ensure that federal legislators vote in accor- 
dance with a particular policy of that State, even if a 

9 See Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 43 (1868) (“The people 
of these United States constitute one nation * * * [and] have a 
government in which all of them are deeply interested.”); Saenz v. Roe, 
526 U.S. 489, 504 n.17 (1999) (“our citizens have two political capacities, 
one state and one federal, each protected from incursion by the other”). 

15 

legislator believes that the policy is contrary to the interest 
of the nation as a whole. 

10 

II. THE MISSOURI AMENDMENTS VIOLATE THE 
FIRST AMENDMENT 

1. The Missouri Amendments are also unconstitutional 
because they operate as an unreasonable and discriminatory 
condition on access to the ballot. To obtain a spot on the bal- 
lot unblemished by a pejorative state label, a candidate for 
office must demonstrate to the satisfaction of a state official 
that he has supported, or has pledged to support, a parti- 
cular state policy, adoption of the proposed term-limits 
amendment. The appeal process, moreover, is biased to im- 
pose the burden of proof, by clear and convincing evidence, 
on the party arguing that the ballot label is not warranted, 

10 Although we do not address herein at length the Qualifications 
Clauses of Article I or the constitutional-amendment requirements of 
Article V, the points made in the text support the court of appeals’ 
conclusion that the Amendments violate those provisions as well. As the 
Court observed in USTL, by prohibiting Congress and the States from 
imposing any qualifications for service in Congress beyond those set forth 
in the Qualifications Clauses, the Framers intended to ensure that the 
people would be able to choose for Congress any “citizen whose merit may 
recommend him to the esteem and confidence of his country.” 514 U.S. at 
819 (quoting The Federalist No. 57, at 351 (Madison)). The Missouri 
Amendments undermine that free choice by “handicapping a class of 
candidates,” id. at 831, with the purpose of preventing the election of 
candidates who decline to support the proposed term-limits amendment. 
In addition, by constraining Members elected from Missouri to vote on a 
proposed constitutional amendment on the governance of the national 
union in conformity with direction from the State of Missouri and not the 
Member’s judgment of the national interest, the Amendments are 
inconsistent with the Constitution’s presumption that Members of Con- 
gress, when exercising their authority under Article V to propose an 
amendment to the Constitution of the national government, will act on 
behalf of “the whole people who created it.” Id. at 839 (Kennedy, J., 
concurring). 

16 

even if that party is not the one taking the appeal. See Mo. 
Const. Art. VIII, § 19(5) and (6). Thus, the Amendments 
effectively require that a candidate demonstrate support for 
state orthodoxy as a condition of obtaining a clear ballot 
spot. Such a condition on unimpaired ballot access violates 
the First Amendment. 

11 

The Court has, of course, recognized that, “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 pro- 
cesses.” Storer v. Brown, 415 U.S. 724, 730 (1974). More- 
over, every provision of an election code that channels the 
process of selection invariably affects, at least to some 
degree, the right of candidates to gain access to the ballot 
(and the rights of voters who support them). See Burdick, 
504 U.S. at 433; Anderson v. Celebrezze, 460 U.S. at 788. 
Thus, when a State imposes “reasonable, nondiscriminatory 
restrictions” on ballot access, “the State’s important regula- 
tory interests are generally sufficient to justify” the restric- 
tions. Ibid. 

The Missouri Amendments, however, cannot be character- 
ized as “reasonable, nondiscriminatory” regulations of the 

11 This Court has generally reviewed discriminatory conditions on 
ballot access under the First Amendment and the Equal Protection Clause 
of the Fourteenth Amendment. See Anderson v. Celebrezze, 460 U.S. at 
786 n.7. Because this case involves state regulation of the ballot for 
elections to federal office, the question also arises whether the regulations 
exceed the State’s authority under the Elections Clause. The Court has 
made clear that the limitations on the State’s authority to regulate the 
ballot for federal elections imposed by the Elections Clause are at least as 
strict as the restrictions imposed by the First and Fourteenth Amend- 
ments. See USTL, 514 U.S. at 834; see also Tashjian v. Republican Party 
of Conn., 479 U.S. 208, 217 (1986). Because, as we explain in the text, the 
Missouri Amendments contravene the First Amendment, they necessarily 
exceed the State’s authority under the Elections Clause as well. 

17 

ballot similar to those previously upheld by this Court. Most 
importantly, the requirements imposed by the State as a 
condition of avoiding a pejorative ballot label are neither 
content-neutral nor viewpoint-neutral. The conditions, 
rather, require candidates to express support for a particular 
position in a particular way if they wish to avoid unfavorable 
treatment on the official ballot. Even if a candidate would 
prefer to take no position at all on the issue of term limits, or 
would prefer to take a position only slightly at variance with 
the state orthodoxy, the candidate will be assigned a deni- 
grating label on the ballot informing the voters that the 
candidate has declined to support the official state position 
on term limits. The Amendments therefore operate as an 
unconstitutional condition; they require something the State 
plainly could not directly compel—that the candidate ex- 
press a particular point of view on a particular issue 

12—as a 
condition of obtaining a benefit from the State, an unim- 
paired ballot position. Cf. Board of Comm’rs v. Umbehr, 518 
U.S. 668, 675-676 (1996). 

2. Petitioner argues that the Missouri Amendments do 
not implicate candidates’ First Amendment rights because 
they do not flatly exclude from the ballot incumbents who 
have failed to vote as instructed or non-incumbent candi- 
dates who have declined to pledge to do so if elected. A 
realistic evaluation of the ballot labels and of the conditions 
imposed by the Missouri Amendments confirms, however, 
that the Amendments must be subject to strict scrutiny. 
First, both the conditions and the ballot labels are 
viewpoint-based, a factor that almost invariably requires the 
application of strict scrutiny. See Rosenberger v. Rector & 

12 See Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 
U.S. 557, 575 (1995) (“[T]he choice of a speaker not to propound a 
particular point of view * * * is presumed to lie beyond the government’s 
power to control.”). 

18 

Visitors of Univ. of Va., 515 U.S. 819, 828-830 (1995). We are 
unaware of any case in which this Court has upheld a view- 
point-based regulation of the ballot, and it is difficult to 
imagine a situation in which such a regulation could be justi- 
fied. 

13 Indeed, a discriminatory viewpoint-based condition 
on unimpaired access to the ballot presents a serious concern 
that the State is attempting “to drive certain ideas or view- 
points from the marketplace” (NEA v. Finley, 524 U.S. 569, 
587 (1998))—namely, that the State is attempting to dis- 
courage candidates who oppose term limits, or at least the 
specific proposed term-limits amendment set forth in the 
Missouri Amendments. 

Second, the ballot labels send an official signal to the 
electorate that, because the candidate has declined to accept 
the term-limits instruction as binding, that candidate does 
not deserve public confidence. The ballot label significantly 

13 Thus, although the State may regulate access to the ballot in 
pursuit of legitimate, non-discriminatory objectives, that does not permit 
it to impose viewpoint-based conditions on access to the ballot—just as a 
State may not condition access to public employment on adherence to a 
certain political party, even though the State may plainly impose numer- 
ous regulations on public employment. Cf. Board of Comm’rs v. Umbehr, 
supra. And although this Court has on numerous occasions upheld regula- 
tions that restrict access to the ballot to those candidates who have 
demonstrated that they have a nontrivial level of support in the com- 
munity, see Munro v. Socialist Workers Party, 479 U.S. 189, 194-195 
(1986); Anderson v. Celebrezze, 460 U.S. at 788-789 n.9; American Party of 
Tex. v. White, 415 U.S. 767 (1974); Jenness v. Fortson, 403 U.S. 431 (1971), 
the Court has never suggested that a State may use that power to insist 
that candidates show that they have substantial popular support for a 
particular position, or (as here) that they have adopted a particular 
position that has substantial support in the community. A State could not, 
for example, require candidates seeking access to the ballot to show that a 
certain percentage of the electorate supported their positions on tax relief 
and gun control. Such a regulation would skew the election to the topics 
that the State, rather than the candidate, deemed sufficiently important to 
present to the electorate. 

19 

infringes on the candidate’s ability to present himself to the 
voters for serious consideration. A State could hardly re- 
quire that the names of candidates who had declined to sup- 
port a particular state policy be printed in tiny type, or be 
marked by the Secretary of State as “state-disapproved” 
candidates. While the burden imposed on candidates by the 
Missouri Amendments may not be quite so drastic as those 
in the hypothetical examples just given, the vice of the 
Missouri Amendments is the same: the State uses its control 
of the ballot to insist that candidates adopt a particular posi- 
tion on a particular issue if they wish to gain access to the 
voters on an equal footing. 

14 

Petitioner further contends (Pet. Br. 36-37) that the 
Amendments leave candidates free publicly to oppose term 
limits, as long as they state publicly that they will agree to 
adhere to the State’s instructions to exercise legislative 
power in support of the term-limits amendments (and do so 
once elected). Even if that were true, it could not justify the 
Amendments’ burden on candidates’ rights of freedom of 
expression—just as an impermissible patronage practice re- 

14 Petitioner also argues (Pet. Br. 32-34) that the Amendments are 
not subject to First Amendment scrutiny at all because the ballot labels 
supposedly comment only on a candidate’s behavior, not speech. That 
contention is without merit. With respect to non-incumbent candidates, 
the assignment of a ballot label turns on whether the candidates takes a 
“pledge” of specific words, see Mo. Const. Art. VIII, § 18(3), which is 
unquestionably speech. With respect to incumbent candidates, the assign- 
ment of a ballot label turns on whether the Member of Congress has used 
his or her legislative authority in certain ways, including making proposals 
in Congress, see id. § 17(2)(c), sponsoring amendments, § 17(2)(g), and 
voting for the proposed term-limits amendment, § 17(2)(a). Whether or 
not the act of voting in Congress is itself protected by the First 
Amendment, see Spallone v. United States, 493 U.S. 265, 302 n.12 (1990) 
(Brennan, J., dissenting), the Missouri Amendments touch on other legis- 
lative activity that is plainly speech, such as sponsoring amendments and 
proposing legislation. 

20 

quiring public employees to join the Democratic Party (cf. 
Board of Comm’rs v. Umbehr, supra) could not be justified 
on the ground that the employees remained free to criticize 
that party’s policies. 

In any event, the State’s reading of the Amendments is 
implausible. An incumbent candidate could scarcely make 
speeches in Congress against the term-limits amendment 
and escape the ballot label, since the Amendments instruct 
Members to use all of their delegated powers to pass the 
amendment. See Mo. Const. Art. VIII, § 17(1). At a mini- 
mum the Secretary of State would be required to determine 
whether the Member had acted in accordance with the in- 
structions, with the burden tilted heavily in favor of finding 
that the Member had not complied. And if a non-incumbent 
candidate signed the pledge to vote in favor of the term- 
limits amendment but then proceeded to denounce the same 
amendment as ill-considered, that candidate would also 
likely find himself before the Secretary of State to face the 
contention that his pledge was not genuine. The prospect of 
a candidate’s being required to justify his campaign litera- 
ture and speeches to the satisfaction of a state official is 
incompatible with the First Amendment’s guarantee of free 
speech. 

3. Because the Missouri Amendments require strict scru- 
tiny, they may be upheld only if the ballot conditions and 
labels are narrowly tailored to advance a compelling state 
interest. See Norman v. Reed, 502 U.S. 279, 289 (1992). 
Petitioner argues (Pet. Br. 40-42) that the Missouri Amend- 
ments advance the state interest of informing voters about 
candidates’ willingness to act in accordance with the instruc- 
tions. We may assume the State has a substantial interest in 
educating the voting public about candidates’ positions on 
issues of public concern. But there is no apparent reason 
why the State could not provide the public with information 
about the candidates’ positions on term limits—including 

21 

their positions on the proposed term-limits amendment— 
without intruding into the ballot itself or requiring candi- 
dates to speak or act in specified ways as a condition of unim- 
paired ballot access. For example, the State could prepare 
voter information guides in which candidates are afforded 
the opportunity to explain their positions on the term-limits 
amendment and address their opponents’ records on the 
same subject. 

Moreover, the ballot labels required by the Amendments 
do not substantially promote voter education. The labels are 
misleading in important respects. If, for example, a non- 
incumbent candidate supports term limits generally but be- 
lieves that the state-approved term-limits amendment is too 
draconian and therefore declines to pledge to support that 
amendment, the candidate will be labeled on the ballot as 
having “DECLINED TO PLEDGE TO SUPPORT TERM 
LIMITS”—with no opportunity to explain on the ballot that 
he does, in fact, support term limits but in a different form. 
Similarly, an incumbent who supports term limits (including 
the proposed term-limits amendment) but who has found it 
inadvisable for tactical considerations to press for a vote on 
the amendment at a particular time will nonetheless be 
labeled in the voting booth as having “DISREGARDED 
VOTERS’ INSTRUCTION ON TERM LIMITS,” again 
without any opportunity to explain the circumstances to the 
voters. Thus, even if the State might be able in another 
context to justify ballot labels identifying candidates’ posi- 
tions on particular issues, it has not demonstrated that these 
labels promote the interest of voter education. 

III. THE MISSOURI AMENDMENTS VIOLATE THE 
SPEECH OR DEBATE CLAUSE 

1. The Speech or Debate Clause provides that, “for any 
Speech or Debate in either House, [the Senators and Repre- 
sentatives] shall not be questioned in any other Place.” U.S. 

22 

Const. Art. I, § 6, Cl. 1. The Clause was “designed to 
preserve legislative independence.” United States v. Brew- 
ster, 408 U.S. 501, 508 (1972); see Eastland v. United States 
Servicemen’s Fund, 421 U.S. 491, 502 (1975) (“The purpose 
of the Clause is to insure that the legislative function the 
Constitution allocates to Congress may be performed inde- 
pendently.”); United States v. Helstoski, 442 U.S. 477, 491 
(1979) (the purpose of the Clause “was to preserve the con- 
stitutional structure of separate, coequal, and independent 
branches of government”). 

Although the Clause was born of concern specifically with 
shielding legislators from vindictive criminal prosecutions 
brought by the Executive Branch as punishment for legis- 
lative criticism, Helstoski, 442 U.S. at 491-492, it has been 
applied broadly to prevent federal legislators from being 
subjected to scrutiny by governmental officials for their 
legislative acts “in any other Place,” as the Clause states. 

15 

Furthermore, the Clause shields Members “not only from 
the consequences of litigation’s results but also from the 
burden of defending themselves.” Dombrowski v. Eastland, 
387 U.S. 82, 85 (1967). In addition, the Clause, although ex- 
pressly reaching only “Speech or Debate,” has long been 
interpreted to protect anything “generally done in a session 

15 The Clause thus protects federal legislators from being “[q]ues- 
tioned” about their legislative activity by state officials as well as federal 
officials. Plainly, the imposition of criminal or civil liability against a 
Member of Congress under state law for the Member’s legislative acts 
could seriously impair that Member’s independence. Thus, in Hutchinson 

v. Proxmire, 443 U.S. 111 (1979), a state-law tort action brought in federal 
court against a United States Senator, the Court nowhere suggested that 
the Clause was not applicable merely because the case arose under state 
law. Cf. Doe v. McMillan, 412 U.S. 306 (1973) (Clause held applicable to 
bar tort action brought against Members of House of Representatives 
under District of Columbia law); Kilbourn v. Thompson, 103 U.S. 168 
(1881) (same). 

23 

of the [Congress] by one of its members in relation to the 
business before it.” Kilbourn v. Thompson, 103 U.S. 168, 
204 (1881). Voting by Members is plainly covered by the 
Clause, as is all action taken by Members at legislative com- 
mittee hearings. See Helstoski, 442 U.S. at 487-488; Doe v. 
McMillan, 412 U.S. 306, 311 (1973); Brewster, 408 U.S. at 
509. The Clause thus prohibits the introduction into evi- 
dence of a Member’s vote in litigation pertaining to the 
Member’s personal interest. See Helstoski, 442 U.S. at 487- 
488. 

2. The Missouri Amendments contravene these princi- 
ples. Under the Amendments, a Missouri state official (and, 
on judicial review, the Missouri Supreme Court) must ex- 
amine the legislative acts of Members of Congress who are 
running for reelection to determine whether they have 
complied with the terms of the Amendments’ instruction to 
undertake specific actions in Congress. The outcome of that 
examination leads to an official determination whether the 
State will impose a burden on or grant a benefit to the 
Member—namely, whether the Member will have a 
pejorative label affixed to his name on the election ballot, or 
whether his spot on the ballot will not be so burdened. The 
Clause prohibits the State from attaching legally significant 
consequences to the legislative acts of Members of Congress 
in this fashion. 

The State’s determination requires the introduction of 
evidence about the Member’s votes and other legislative acts 
in Congress. See Mo. Const. Art. VIII, § 19(2). The Secre- 
tary must ascertain whether the Member has taken or failed 
to take a litany of specified legislative acts, including intro- 
ducing, proposing, bringing to a vote, and seconding the 
proposed term-limits amendment, voting in favor of that 
amendment and against any other amendment that would 
establish longer terms, and opposing any effort to table or 
delay legislative consideration of the favored amendment. 

24 

Id. Art. VIII, § 17(2). Moreover, this examination of the 
Member’s legislative record may be wide-ranging and 
intrusive. For example, the Secretary must affix the ballot 
label if she determines that the Member has “fail[ed] to pro- 
pose” the amendment for a vote in Congress (should the 
amendment otherwise lack such a proponent) or has “fail[ed] 
to reject any attempt to delay, table, or otherwise prevent a 
vote by the full legislative body of the proposed” term-limits 
amendment. Id. Art. VIII, § 17(2)(c) and (e). In making such 
determinations, the Secretary could be required to consider, 
not just votes recorded in the Congressional Record and 
other information readily available to the public, but also 
information submitted from interested groups concerning 
communications between a Member and the leadership of 
the Member’s chamber about legislative priorities. See id. 
Art. VIII, § 19(2) (providing that Secretary may consider 
public comments in making her determinations). If a mem- 
ber of the public contended that a Senator had “fail[ed] to 
reject any attempt to delay” a vote on the term-limits 
amendment, the Senator could likely meet that contention 
only by providing an explanation of his understanding of the 
matters pending on the legislative calendar and his evalua- 
tion of the relative priorities of those matters. And because 
the Secretary of State’s determination not to affix a ballot 
label may be sustained on judicial review only if clear and 
convincing evidence supports it, see id. Art. VIII, § 19(5), 
the Member’s submission will likely have to be quite detailed 
to be effective. 

The Speech or Debate Clause does not permit state 
officials to require federal legislators to justify their legisla- 
tive actions in such a fashion. The intrusive inquiry into a 
legislator’s record mandated by the Amendments threatens 
to undermine the independence of federal legislators by 
effectively compelling them to present a detailed explanation 
of their legislative actions and strategy to the satisfaction of 

25 

a state official, at pain of official state disapproval in the form 
of a pejorative ballot label if they fail to persuade state 
officials (and judges) by clear and convincing evidence that 
their legislative activity comports with the official state 
policy favoring the term-limits amendment. The inquiry also 
threatens to distract Members of Congress from their 
legislative activity by requiring them to spend time prepar- 
ing their justifications for a state official proceeding. 

3. Of course, nothing in the Speech or Debate Clause pre- 
vents state officials (or members of the public) from calling 
on Members of Congress to explain their actions with re- 
spect to legislation, asking questions of Members about such 
actions in debates, or criticizing a Member’s legislative 
record. The Clause does not insulate Members from political 
accountability for their legislative actions. In those situa- 
tions, however, no official governmental benefit or burden 
turns directly on the Member’s response. A Member may 
choose whether and how to respond to the question or criti- 
cism and retains the freedom to take the political conse- 
quences of responding, not responding, or framing the re- 
sponse in a particular way. The Member’s accountability to 
the voters is preserved, as is his independence from official 
coercion and oversight. 

It is quite a different matter to place in the hands of a 
state official the power to determine how an incumbent can- 
didate shall be treated on the ballot based on that Member’s 
legislative record. While a pejorative ballot label is not a 
criminal punishment or civil penalty, it nevertheless is an of- 
ficial action imposing a burden on the candidate. There may 
be close cases in which it is unclear that unpleasant conse- 
quences visited upon an incumbent candidate by state offi- 
cials because of that Member’s legislative record constitute 

26 

impermissible “question[ing]” of the Member in violation of 
the Speech or Debate Clause, but this is not one. 

16 

IV. THE STATE’S HISTORICAL EXAMPLES OF IN- 
STRUCTIONS TO LEGISLATORS AND BALLOT 
NOTATIONS DO NOT SALVAGE THE MISSOURI 

AMENDMENTS 

The State maintains that instructions to legislators and 
ballot notations have a historical pedigree that establishes 
the constitutionality of the Missouri Amendments. The 
State maintains, for example (Pet. Br. 10-14), that the 
colonial legislatures and, after independence, the States 
issued instructions to their delegates to the Continental 
Congress, the Confederation Congress, and the 
Constitutional Convention. The State also points out that 
state legislatures occasionally issued instructions to 
Senators elected by those legislatures before the adoption of 
the Seventeenth Amendment. 

None of those examples, however, involved ballot labels 
imposed by the State or state-imposed conditions on a candi- 
date’s access to the ballot for a popular election. None of 
them, therefore, is helpful to analyze the Missouri Amend- 
ments, under which a state official makes a formal 
determination whether a candidate has spoken or acted on 
an issue of public concern in a particular way, and then 
determines how the State shall present that candidate to the 
electorate. Indeed, almost all the State’s examples involved 

16 It would seem clear, for example, that the Speech or Debate Clause 
would prohibit a State from requiring Members of Congress who had 
voted in a particular way to go through especially onerous steps to qualify 
for the ballot, such as collecting an inordinately large number of signa- 
tures or paying an exorbitant filing fee. The Missouri Amendments may 
differ from those examples in a matter of degree, but the Amendments are 
similar to those examples in that a central purpose of the Amendments is 
to make it more difficult for a Member of Congress to secure reelection if 
that Member has voted or failed to vote in a particular way in Congress. 

27 

situations where the instruction was issued to a delegate by 
a body with complete control over the process of 
determining whether and how that delegate should be 
considered for reelection—for example, the States’ delegates 
to the Confederation Congress, and Senators elected by 
state legislatures before the Seventeenth Amendment. In 
those situations, it is difficult to speak meaningfully of any 
impairment of a right of ballot access, as there was no 
popular election. 

The electorate does, of course, have authority to reject 
any candidate for Congress based on his articulated or 
unarticulated position on term limits. But unlike the election 
of Senators before the Seventeenth Amendment, popular 
election of Members of Congress depends on a ballot mecha- 
nism. And no example put forward by petitioner suggests 
that the State could officially hobble a candidate in a popular 
election campaign because of that candidate’s unwillingness 
to abide by state instructions. 

17 

The State also points out (Pet. Br. 15-17) that, before the 
Seventeenth Amendment provided for popular election of 
Senators, several States adopted by initiative provisions 

17 More generally, the State’s examples fail to demonstrate that the 
Framers would have accepted instructions that were binding, in the sense 
that a government official could impose any sanction of substantial conse- 
quence for the failure of a legislator to follow, or a candidate to accept, a 
state legislature’s instructions. Indeed, with respect to candidates for 
federal office, it is indisputable that the Constitution would forbid a State 
from imposing at least some sanctions of that nature. A State could not 
exclude from the ballot any candidate for Congress who refused to accept 
state instructions on any subject, for such a rule would impermissibly im- 
pose qualifications for the federal office beyond those permitted by the 
Qualifications Clauses of Article I. See generally USTL, 514 U.S. at 798- 
802, 829-831. And the Speech or Debate Clause would plainly forbid a 
State from imposing civil or criminal sanctions on a Member of Congress 
based on that Member’s failure to follow state instructions. See pp. 22-26, 
supra. 

28 

that informed voters on the ballot whether candidates for 
state legislature had pledged to vote for United States 
Senator in conformity with results of an unofficial poll that 
indicated the popular choice for Senator. In most of those 
cases, however, the provisions were permissive; they merely 
allowed candidates to declare to the voters on the ballot that 
they had agreed (or had not agreed) to accept the voters’ 
expressed preference for Senator. The State did not itself 
assign a disapproving ballot label to candidates who had 
declined to promise to act in accordance with that pre- 
ference. See 1 George H. Haynes, The Senate of the United 
States: Its History and Practice 101-103 (1938). 

18 Thus, 
those ballot laws did not condition a clean position on the 
ballot on the candidate’s adoption of any particular position. 

Nor does Ray v. Blair, 343 U.S. 214 (1952), support the 
State’s position. In that case, the Court upheld a state law 
that allowed political parties to require that candidates for 
the position of presidential elector in a party primary pledge, 
if elected, to support the national party’s nominees for Pre- 
sident and Vice President. (The party would not certify a 
candidate for a place on the primary ballot unless he made 
such a pledge.) The Court rejected the contention that the 
law violated the Twelfth Amendment in that it constrained 
electors’ discretion to vote for President according to their 
own judgment. The Court stressed, however, that the 
purpose of the state law was to strengthen the political party 
system, see id. at 221-222, 226 n.14, which the Court has long 
recognized as a legitimate objective of state regulation over 

18 North Dakota’s law, which did require candidates for state legis- 
lature to pledge to vote for United States Senator in accordance with the 
expression of popular will at the party primary or general election, was 
struck down under the state constitution on the ground that it added to 
the qualifications for state legislator beyond those prescribed in the state 
constitution. See State ex rel. McCue v. Blaisdell, 118 N.W. 141, 144 (N.D. 
1908). 

29 

19 Moreover, the law upheld in Ray was neutral as 
to content and viewpoint; it did not require presidential elec- 
tors to express support for any particular position or candi- 
date as a condition of ballot access, but merely allowed par- 
ties to require would-be electors to support whatever candi- 
date the party nominated. 

20 Accordingly, petitioner has not 
pointed to any historical evidence suggesting that a State 
may place a pejorative label on the ballot next to the name of 
a candidate who has failed to satsify a state official that he 
has accepted or complied with state instructions on a 
particular substantive issue. 

19 The law under review in Ray was similar to laws protecting political 
parties against raiding, which the Court has upheld on several occasions. 
See Burdick, 504 U.S. at 439; Rosario v. Rockefeller, 410 U.S. 752 (1973). 

20 Petitioner and amici note (Pet. Br 21-22; Mo. Term Limits Br. 11- 

14) that States frequently recognize the important role played by political 
parties in our electoral system by indicating candidates’ party affiliation 
on the ballot label. The placement of a party label on the ballot, however, 
is not a viewpoint-based regulation. While voters may perceive that a 
particular political party has a particular viewpoint, the placement of all 
candidates’ partisan affiliations (if they have one) on the ballot does not 
send any particular message to the electorate. Thus, even-handed disclo- 
sure of candidates’ partisan affiliation on the ballot presents no threat to 
candidates’ and voters’ First Amendment rights. 

It is conceivable, of course, that a State might abuse its policy of 
placing candidates’ party affiliation on the ballot to suggest to the voters 
that a candidate who is not affiliated with a major political party deserves 
the voters’ disapproval. The Court has never suggested, however, that 
such a practice would be constitutional. See p. 10 & note 4, supra (discus- 
sing appellate decisions invalidating preferential ballot treatment for 
incumbents); cf. Anderson v. Celebrezze, 460 U.S. at 793-794 (close scru- 
tiny required for “[a] burden that falls unequally on new or small political 
parties or on independent candidates” because “such restrictions threaten 
to reduce diversity and competition in the marketplace of ideas”). 

elections. 

30 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 
DAVID W. OGDEN 

Assistant Attorney General 
BARBARA D. UNDERWOOD 

Deputy Solicitor General 
PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 
DOUGLAS N. LETTER 
DANA J. MARTIN 

Attorneys 

AUGUST 2000