US Supreme Court Briefs


In the Supreme Court of the United States










Solicitor General
Counsel of Record
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



At issue in this case are provisions of the Missouri Constitution (theMissouri Amendments) that (a) instruct Members of Congress elected fromMissouri to exercise their legislative powers in favor of a proposed amendmentto the United States Constitution that would limit the terms of Membersof Congress, (b) require the label "DISREGARDED VOTERS' INSTRUCTIONON TERM LIMITS" to appear on the ballot next to the name of any incumbentcandidate for Congress who is found by the Missouri Secretary of State tohave failed to follow that instruction, and (c) require the label "DECLINEDTO PLEDGE TO SUPPORT TERM LIMITS" to appear on the ballot next to thename of any non-incumbent candidate for Congress who declines to pledgeto act in accordance with the instruction if elected.

The United States will address the following questions:

1. Whether the Missouri Amendments exceed the State's power to regulatefederal elections under the Elections Clause, U.S. Const. Art. I, §4, Cl. 1, because they are inconsistent with the fundamental constitutionalstructure 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.


In the Supreme Court of the United States











This case involves an attempt by the State of Missouri to require thatMembers of Congress elected from that State deploy their legislative authorityin accordance with instructions from the State on an issue relating to thestructure and governance of the federal union. The Amendments to the MissouriConstitution under review raise serious questions about the fundamentalconstitutional structure of the national government. Those Amendments alsoraise serious questions about the authority of the States under the ElectionsClause, the First Amendment, and the Speech or Debate Clause to influencethe outcome of federal elections. The United States has a substantial interestin the resolution of those questions.


1. This case involves a constitutional challenge to amendments to theMissouri Constitution (hereinafter Missouri Amendments or Amendments) adoptedby the voters of that State in a ballot initiative in 1996. The MissouriAmendments 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 textof that proposed constitutional amendment, which would limit Members ofthe United States House of Representatives to three terms and United StatesSenators to two terms, and would empower the several States to adopt longeror shorter limits for their congressional delegations. Id. Art. VIII, §16.

The Amendments "instruct" each Senator and Representative electedfrom Missouri to use "all of his or her delegated powers to pass theCongressional Term Limits Amendment set forth [in Section 16]." Mo.Const. Art. VIII, § 17(1). Pursuant to that instruction, a Member ofCongress from Missouri must, if an appropriate occasion arises, performone or more specified legislative acts in support of the proposed term-limitsamendment.1 If a Senator or Representative from Missouri fails to performsuch a legislative act on the appropriate occasion, then the label "DISREGARDEDVOTERS' INSTRUCTION ON TERM LIMITS" must be printed adjacent to thatMember's name on the next primary and general election ballots. Id. Art.VIII, § 17(2).

Non-incumbent candidates for Congress from Missouri are "given anopportunity" to take a specific pledge indicating support for the proposedterm-limits amendment. Mo. Const. Art. VIII, § 18(1). The pledge states:"I support term limits and pledge to use all my legislative powersto enact the proposed Constitutional Amendment set forth in the Term LimitsAct of 1996. If elected, I pledge to vote in such a way that the designation'DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS' will not appear adjacentto my name." Id. Art. VIII, § 18(3). Thus, non-incumbent candidatesmust undertake that, if elected, they will perform specific legislativeacts in support of the term- limits amendment. If a non-incumbent candidatedeclines to take the pledge, then the label "DECLINED TO PLEDGE TOSUPPORT TERM LIMITS" must be printed next to his name on the primaryand general election ballots. Id. Art. VIII, § 18(1). That label mustbe affixed even if the non-incumbent candidate supports some variant ofterm limits other than the one set forth in Section 16.

The Secretary of State of Missouri (Secretary) is assigned responsibilityfor determining whether candidates shall have the specified labels placednext to their names on the ballots. Mo. Const. Art. VIII, § 19(1).For incumbents, the Secretary must make that determination "based uponeach member of Congress's action during their current term of office andany action taken in any concluded term, if such action was taken after thedetermination and declaration was made by the Secretary of State in a previouselection." Id. Art. VIII, § 19(3).

The Secretary's determinations with respect to both incumbents and non-incumbentsmay be appealed to the Missouri Supreme Court, either by a candidate (ifthe Secretary determines that the candidate has not complied with the provisionsand a label should therefore be placed next to the candidate's name on theballot) or by any elector (if the Secretary determines that the candidatehas complied and a label is therefore not required). Mo. Const. Art. VIII,§ 19(5)-(6). If the Secretary determines that a ballot label is requiredfor a candidate and the candidate appeals to the Missouri Supreme Court,the candidate has the burden of demonstrating by clear and convincing evidencethat 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 labelis not required for a candidate and an elector appeals, the Secretary hasthe burden of demonstrating by clear and convincing evidence that the labelshould 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 candidate'sname unless there is clear and convincing evidence that the candidate hasperformed, on an appropriate occasion, one or more specific acts in Congressto support the term-limits amendment (in the case of an incumbent) or haspromised to do so if elected (in the case of a non-incumbent).

2. On December 11, 1996, respondent Gralike, a resident and voter inMissouri's Third Congressional District and a candidate for House of Representativesin 1996 and 1998, filed this lawsuit in district court, contending thatthe Missouri Amendments are unconstitutional.2 The district court ruledthe Amendments invalid on three grounds: (a) they impose qualificationsfor service in Congress beyond those enumerated in the Qualifications Clausesof Article I, Section 2, Clause 2, and Article I, Section 3, Clause 3 (seePet. App. A32, A42-A46); (b) they infringe the First Amendment rights ofcandidates for Congress by compelling them to take a position on a matterof public concern (see id. at A32, A47-A52); and (c) they coerce legislatorsinto voting for the proposed term-limits amendment in accordance with theballot initiative's instruction, and thereby impermissibly involve the peoplein the formal process of amendment of the Constitution, in violation ofArticle V (see id. at A32, A61).

The court of appeals affirmed. Pet. App. A1-A26. The court held the MissouriAmendments invalid on four grounds. Like the district court, the court ofappeals concluded that the Amendments violate the First Amendment (see A8-A14), the Qualifications Clauses (see id. at A15-A19), and ArticleV (see id. at A15-A19). In addition, the court ruled (id. at A14-A15) thatthe Amendments violate the Speech or Debate Clause, U.S. Const. Art. I,§ 6, Cl. 1, reasoning that they "establish[] a regime in whicha state officer * * * is permitted to judge and punish members of Congressfor their legislative actions or positions." Pet. App. A15.


I. The Missouri Amendments exceed the States' power to operate federalelections, as defined and limited by the Elections Clause. The ElectionsClause permits the States only to make nondiscriminatory and reasonableprocedural regulations of federal elections to ensure their orderlinessand integrity, not to use their power over the ballot to influence the outcomeof elections based on substantive state policy. The States also may notuse their power over federal elections in a manner inconsistent with fundamentalconstitutional principles governing the structure of the national government.The Amendments are inconsistent with such principles, in three respects.First, the Amendments undermine principles of representative democracy inherentin the national government by manipulating the ballot, over which the Statehas monopoly power, to send a powerful signal to voters at the moment ofchoosing that a particular candidate has not accepted the people's willand does not deserve their trust and confidence. Second, by interjectingthe State's position on the issue of term limits into the voting booth,the Amendments interfere with the direct connection between the people ofthe State and their federal representatives, a relation the Framers deemedessential to the success of the union. Finally, by seeking to require thatfederal legislators vote in accordance with a particular state policy, theAmendments undermine federal legislators' obligation to act in the nationalinterest and on behalf of all the citizens of the United States, not justresidents of their own State.

II. The Amendments violate the First Amendment rights of candidates forfederal office. The Amendments require, as a condition of obtaining a ballotposition unimpaired by a pejorative state label, that a candidate demonstrateadherence to the state policy of support for the proposed term-limits amendment.The Amendments therefore operate as an unconstitutional condition on ballotaccess, requiring candidates to express a particular viewpoint on a particularsubject matter in order to obtain a benefit from the State. Because thecondition and the ballot label are viewpoint-based, and because they significantlyimpair a noncompliant candidate's ability to present himself to voters forserious consideration on an equal footing, the Amendments require strictscrutiny. The Amendments are not, however, narrowly tailored to promotea compelling state interest. Although the State argues that the labels promotevoter education, the State could advance that interest without manipulatingthe ballot, and the labels are misleading in any event.

III. The Amendments also violate the Speech or Debate Clause. The Speechor Debate Clause prohibits the government from imposing a burden on a Memberof Congress based on evidence of the Member's legislative activity. TheClause also prohibits, in litigation affecting the Member's personal interest,the introduction into evidence of the Member's votes and other legislativeactivity. The Amendments contravene these principles. The Amendments requirethe Secretary of State to examine federal legislators' voting records andother legislative activity to determine whether the Member will be assigneda pejorative ballot label. The Amendments also require that a Member demonstrateand justify his legislative record to a state official by clear and convincingevidence in order to avoid such a ballot label. The Clause does not permitstate officials to require that Members of Congress give evidence of theirlegislative activity in order to avoid a state-imposed burden.

IV. Various historical examples of instructions to legislators and ballotnotations put forward by the State do not support the constitutionalityof the Amendments. None of those examples involved a state-imposed conditionthat a candidate adopt a particular viewpoint on a particular substantiveissue in order to obtain unimpaired access to the ballot in a popular election.None of them, therefore, is apposite to analysis of the Missouri Amendments.




1. The authority of the States to regulate congressional elections isdefined 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 thenew national government as well, but they also perceived that the Statesmight 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 delegationof authority, not a plenary grant of power, to the States. The Framers conceivedthe power granted to the States in the Elections Clause as restricted tothe authority "to issue procedural regulations, and not as a sourceof power to dictate electoral outcomes, to favor or disfavor a class ofcandidates, or to evade important constitutional 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'sauthority under the Elections Clause. They are designed precisely to "dictateelectoral outcomes" and to "disfavor a class of candidates"by affixing a pejorative label to the name of any candidate on the ballotwho disagrees with state orthodoxy on the subject of term limits.3 Theyalso "evade important constitutional restraints"-indeed, theyare inconsistent with fundamental constitutional principles governing thestructure of the federal government.

2. The Missouri Amendments are inconsistent with the fundamental constitutionalprinciple that Members of Congress must be chosen in free and fair elections.The importance of elections under the Constitution is manifest in its provisionsfor election of Representatives, U.S. Const. Art. I, § 2, Cl. 1, andSenators, Amend. XVII, § 1, and for the steady expansion of the franchiseover time to eliminate qualifications of race, Amend. XV, sex, Amend. XIX,failure to pay a poll tax, Amend. XXIV, and age, Amend. XXVI. This Courthas repeatedly observed that "voting is of the most fundamental significanceunder our constitutional structure," Burdick v. Takushi, 504 U.S. 428,433 (1992) (quoting Illinois State Bd. of Elections v. Socialist WorkersParty, 440 U.S. 173, 184 (1979)).

Implicit in the idea of a fair election are the twin notions of a robustcompetition for votes prior to the election, and the protection of the voterfrom undue influence at the moment of deciding and casting a vote. Towardthe latter end, this Court has emphasized that "protecting voters fromconfusion and undue influence," Burson v. Freeman, 504 U.S. 191, 199(1992) (plurality opinion), is a compelling governmental interest. Thus,the State may prohibit campaigning within 100 feet of the entrance to apolling place on election day.

The authority to operate federal elections, conferred on the States bythe Elections Clause, does not include the authority to attempt to favorcertain candidates and disfavor others. Indeed, the States' authority toregulate federal elections extends only to "generally applicable andevenhanded restrictions that protect the integrity and reliability of theelectoral process itself," see Anderson v. Celebrezze, 460 U.S. 780,788 n.9 (1983), and not to efforts to influence the outcome. While governmentofficials may undoubtedly engage in pre-election speech concerning the meritsof the candidates in an election, the State may not use its power to administerelections to overbear the right of "the people [to] choose whom theyplease to govern them." USTL, 514 U.S. at 793 (internal quotation marksomitted).4

The State's power over the ballot, moreover, presents special dangersof undue influence in the outcome of an election. By its nature, the ballotis not a public forum in which numerous participants can engage in a debateover issues.5 Rather, the State has a monopoly over the ballot and is ina position to deploy that power to affect the outcome of elections.

The Missouri Amendments have the purpose and effect of influencing theoutcome of elections. Missouri uses the ballot labels to assert to the votersthat certain candidates have not accepted the people's will and do not deservetheir trust and confidence, but it permits no rebuttal to those assertionsin the voting booth. At the moment of choosing among candidates, therefore,voters are left with the powerful impression created by the ballot labels.6Cf. Anderson v. Martin, 375 U.S. 399, 402 (1964) (invalidating State's useof 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 electoralprocess--the instant before the vote is cast"). Such use of the State'spower over the ballot to influence the outcome of an election is inconsistentwith a basic principle of popular sovereignty-"the right of the peopleto vote for whom they wish." USTL, 514 U.S. at 820.

3. In addition to introducing bias into the election, the Missouri Amendmentshave the defect of interjecting the State between the people of Missouriand their own federal representatives, thereby interfering with a directrelation between them that is an essential element of the constitutionalstructure.

The Framers saw the "great and radical vice" of the Articlesof Confederation as "the principle of LEGISLATION for STATES or GOVERNMENTS,in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguishedfrom the INDIVIDUALS of whom they consist." The Federalist No. 15,at 108 (Hamilton). The Framers therefore discarded the confederal structureof the Articles for a national government that "extend[ed] the authorityof the Union to the persons of the citizens." Id. at 109. But the Framersperceived that the States might attempt to subvert the connection betweenthe people and the union, and so the question arose how to ensure that "[t]hepeople of America [remain] warmly attached to the government of the Union,at times when the particular rulers of particular States * * * may be ina 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 Convention, the union could be "stable anddurable" only if the legislature "should rest on the solid foundationof the people themselves," rather than an intervening body. 1 The Recordsof the Federal Convention of 1787, at 50 (Max Farrand ed., rev. ed. 1966).The Framers therefore required biennial elections to the House of Representativesto ensure that the federal Congress would retain "an immediate dependenceon, and an intimate sympathy with, the people." The Federalist No.52, at 327 (Madison). The Framers also prohibited the States from addingqualifications for service in the Congress beyond those established in theConstitution, which might undermine popular support for the new nationallegislature. See USTL, 514 U.S. at 806-808. As the Court explained in USTL,the Constitution established that "the right to choose representativesbelongs not to the States, but to the people." Id. at 820-821.7

The Missouri Amendments' manipulation of the ballot for federal electionsimpermissibly interferes with the connection between the people of Missouriand the union. In assigning a pejorative ballot label to a candidate forfederal office who does not accept the State's orthodoxy of support fora particular measure, the State announces its judgment that the candidatedoes not deserve the trust and confidence of the people of Missouri. Itdoes so, moreover, in the voting booth and at the moment of voting--thevery point on which, the Framers understood, the success of the union depends.By interposing its own judgment about the preferable outcome of a federalelection, the State intrudes on "the most basic relation between theNational 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 constitutionalstructure of the union because they seek to constrain by law the legislativeactivity of federal officials. The Amendments attempt to inhibit the electionor reelection of a candidate who has not acted or will not promise to actin 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 ("Membersof Congress * * * become, when elected, servants of the people of the UnitedStates[;] * * * they occupy offices that are integral and essential componentsof a single National Government."). The Amendments undermine the nationalcharacter of the union, which depends on a connection between Members ofCongress and the people of all the States of the union.9 Because, underthe Constitution, Members of Congress legislate in the national interest,not merely the interest of the State from which they are elected, a Statemay not seek to confine a federal legislator's authority to consider thenational interest by handicapping him on the ballot if the Member (or would-beMember) will not act in accordance with the official policy of the State.

Indeed, the Missouri Amendments may well be more disruptive of the nationalcharacter of the union than were the Arkansas term limits invalidated inUSTL. The provision at issue in USTL did not seek to constrain Members ofCongress elected from Arkansas to vote in any particular way. Every Memberelected from Arkansas still remained free to consider the national intereston every issue, and to vote in accordance with that Member's judgment ofthe national interest. The Missouri Amendments, by contrast, endeavor toensure that federal legislators vote in accordance with a particular policyof that State, even if a legislator believes that the policy is contraryto the interest of the nation as a whole.10


1. The Missouri Amendments are also unconstitutional because they operateas an unreasonable and discriminatory condition on access to the ballot.To obtain a spot on the ballot unblemished by a pejorative state label,a candidate for office must demonstrate to the satisfaction of a state officialthat he has supported, or has pledged to support, a particular state policy,adoption of the proposed term-limits amendment. The appeal process, moreover,is biased to impose the burden of proof, by clear and convincing evidence,on the party arguing that the ballot label is not warranted, even if thatparty is not the one taking the appeal. See Mo. Const. Art. VIII, §19(5) and (6). Thus, the Amendments effectively require that a candidatedemonstrate support for state orthodoxy as a condition of obtaining a clearballot spot. Such a condition on unimpaired ballot access violates the FirstAmendment.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 fairand honest and if some sort of order, rather than chaos, is to accompanythe democratic processes." Storer v. Brown, 415 U.S. 724, 730 (1974).Moreover, every provision of an election code that channels the processof selection invariably affects, at least to some degree, the right of candidatesto 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 regulatory interests are generallysufficient to justify" the restrictions. Ibid.

The Missouri Amendments, however, cannot be characterized as "reasonable,nondiscriminatory" regulations of the ballot similar to those previouslyupheld by this Court. Most importantly, the requirements imposed by theState as a condition of avoiding a pejorative ballot label are neither content-neutralnor viewpoint-neutral. The conditions, rather, require candidates to expresssupport for a particular position in a particular way if they wish to avoidunfavorable treatment on the official ballot. Even if a candidate wouldprefer to take no position at all on the issue of term limits, or wouldprefer to take a position only slightly at variance with the state orthodoxy,the candidate will be assigned a denigrating label on the ballot informingthe voters that the candidate has declined to support the official stateposition on term limits. The Amendments therefore operate as an unconstitutionalcondition; they require something the State plainly could not directly compel-thatthe candidate express a particular point of view on a particular issue12-asa condition of obtaining a benefit from the State, an unimpaired ballotposition. 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 ballotincumbents who have failed to vote as instructed or non-incumbent candidateswho have declined to pledge to do so if elected. A realistic evaluationof the ballot labels and of the conditions imposed by the Missouri Amendmentsconfirms, 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 & Visitors of Univ. of Va., 515 U.S. 819,828-830 (1995). We are unaware of any case in which this Court has uphelda viewpoint-based regulation of the ballot, and it is difficult to imaginea situation in which such a regulation could be justified.13 Indeed, a discriminatoryviewpoint-based condition on unimpaired access to the ballot presents aserious concern that the State is attempting "to drive certain ideasor viewpoints from the marketplace" (NEA v. Finley, 524 U.S. 569, 587(1998))-namely, that the State is attempting to discourage candidates whooppose term limits, or at least the specific proposed term-limits amendmentset 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 instructionas binding, that candidate does not deserve public confidence. The ballotlabel significantly infringes on the candidate's ability to present himselfto the voters for serious consideration. A State could hardly require thatthe names of candidates who had declined to support a particular state policybe 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 Amendmentsmay 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 controlof the ballot to insist that candidates adopt a particular position on aparticular 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 leavecandidates free publicly to oppose term limits, as long as they state publiclythat they will agree to adhere to the State's instructions to exercise legislativepower 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 practicerequiring public employees to join the Democratic Party (cf. Board of Comm'rsv. Umbehr, supra) could not be justified on the ground that the employeesremained free to criticize that party's policies.

In any event, the State's reading of the Amendments is implausible. Anincumbent candidate could scarcely make speeches in Congress against theterm-limits amendment and escape the ballot label, since the Amendmentsinstruct Members to use all of their delegated powers to pass the amendment.See Mo. Const. Art. VIII, § 17(1). At a minimum the Secretary of Statewould be required to determine whether the Member had acted in accordancewith the instructions, with the burden tilted heavily in favor of findingthat the Member had not complied. And if a non-incumbent candidate signedthe pledge to vote in favor of the term-limits amendment but then proceededto denounce the same amendment as ill-considered, that candidate would alsolikely find himself before the Secretary of State to face the contentionthat his pledge was not genuine. The prospect of a candidate's being requiredto justify his campaign literature and speeches to the satisfaction of astate official is incompatible with the First Amendment's guarantee of freespeech.

3. Because the Missouri Amendments require strict scrutiny, they maybe upheld only if the ballot conditions and labels are narrowly tailoredto advance a compelling state interest. See Norman v. Reed, 502 U.S. 279,289 (1992). Petitioner argues (Pet. Br. 40-42) that the Missouri Amendmentsadvance the state interest of informing voters about candidates' willingnessto act in accordance with the instructions. We may assume the State hasa substantial interest in educating the voting public about candidates'positions on issues of public concern. But there is no apparent reason whythe State could not provide the public with information about the candidates'positions on term limits-including their positions on the proposed term-limitsamendment- without intruding into the ballot itself or requiring candidatesto speak or act in specified ways as a condition of unimpaired ballot access.For example, the State could prepare voter information guides in which candidatesare afforded the opportunity to explain their positions on the term-limitsamendment and address their opponents' records on the same subject.

Moreover, the ballot labels required by the Amendments do not substantiallypromote voter education. The labels are misleading in important respects.If, for example, a non-incumbent candidate supports term limits generallybut believes that the state-approved term-limits amendment is too draconianand therefore declines to pledge to support that amendment, the candidatewill be labeled on the ballot as having "DECLINED TO PLEDGE TO SUPPORTTERM LIMITS"-with no opportunity to explain on the ballot that he does,in fact, support term limits but in a different form. Similarly, an incumbentwho supports term limits (including the proposed term-limits amendment)but who has found it inadvisable for tactical considerations to press fora vote on the amendment at a particular time will nonetheless be labeledin the voting booth as having "DISREGARDED VOTERS' INSTRUCTION ON TERMLIMITS," again without any opportunity to explain the circumstancesto the voters. Thus, even if the State might be able in another contextto justify ballot labels identifying candidates' positions on particularissues, it has not demonstrated that these labels promote the interest ofvoter education.


1. The Speech or Debate Clause provides that, "for any Speech orDebate in either House, [the Senators and Representatives] shall not bequestioned in any other Place." U.S. Const. Art. I, § 6, Cl. 1.The Clause was "designed to preserve legislative independence."United States v. Brewster, 408 U.S. 501, 508 (1972); see Eastland v. UnitedStates Servicemen's Fund, 421 U.S. 491, 502 (1975) ("The purpose ofthe Clause is to insure that the legislative function the Constitution allocatesto Congress may be performed independently."); United States v. Helstoski,442 U.S. 477, 491 (1979) (the purpose of the Clause "was to preservethe constitutional structure of separate, coequal, and independent branchesof government").

Although the Clause was born of concern specifically with shielding legislatorsfrom vindictive criminal prosecutions brought by the Executive Branch aspunishment for legislative criticism, Helstoski, 442 U.S. at 491-492, ithas been applied broadly to prevent federal legislators from being subjectedto scrutiny by governmental officials for their legislative acts "inany other Place," as the Clause states.15 Furthermore, the Clause shieldsMembers "not only from the consequences of litigation's results butalso from the burden of defending themselves." Dombrowski v. Eastland,387 U.S. 82, 85 (1967). In addition, the Clause, although expressly reachingonly "Speech or Debate," has long been interpreted to protectanything "generally done in a session of the [Congress] by one of itsmembers 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 committee hearings. SeeHelstoski, 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 intoevidence of a Member's vote in litigation pertaining to the Member's personalinterest. See Helstoski, 442 U.S. at 487-488.

2. The Missouri Amendments contravene these principles. Under the Amendments,a Missouri state official (and, on judicial review, the Missouri SupremeCourt) must examine the legislative acts of Members of Congress who arerunning for reelection to determine whether they have complied with theterms of the Amendments' instruction to undertake specific actions in Congress.The outcome of that examination leads to an official determination whetherthe 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 theelection ballot, or whether his spot on the ballot will not be so burdened.The Clause prohibits the State from attaching legally significant consequencesto the legislative acts of Members of Congress in this fashion.

The State's determination requires the introduction of evidence aboutthe Member's votes and other legislative acts in Congress. See Mo. Const.Art. VIII, § 19(2). The Secretary must ascertain whether the Memberhas taken or failed to take a litany of specified legislative acts, includingintroducing, proposing, bringing to a vote, and seconding the proposed term-limitsamendment, voting in favor of that amendment and against any other amendmentthat would establish longer terms, and opposing any effort to table or delaylegislative consideration of the favored amendment. Id. Art. VIII, §17(2). Moreover, this examination of the Member's legislative record maybe wide-ranging and intrusive. For example, the Secretary must affix theballot label if she determines that the Member has "fail[ed] to propose"the amendment for a vote in Congress (should the amendment otherwise lacksuch 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 makingsuch determinations, the Secretary could be required to consider, not justvotes recorded in the Congressional Record and other information readilyavailable to the public, but also information submitted from interestedgroups concerning communications between a Member and the leadership ofthe Member's chamber about legislative priorities. See id. Art. VIII, §19(2) (providing that Secretary may consider public comments in making herdeterminations). If a member of the public contended that a Senator had"fail[ed] to reject any attempt to delay" a vote on the term-limitsamendment, the Senator could likely meet that contention only by providingan explanation of his understanding of the matters pending on the legislativecalendar and his evaluation of the relative priorities of those matters.And because the Secretary of State's determination not to affix a ballotlabel may be sustained on judicial review only if clear and convincing evidencesupports it, see id. Art. VIII, § 19(5), the Member's submission willlikely have to be quite detailed to be effective.

The Speech or Debate Clause does not permit state officials to requirefederal legislators to justify their legislative actions in such a fashion.The intrusive inquiry into a legislator's record mandated by the Amendmentsthreatens to undermine the independence of federal legislators by effectivelycompelling them to present a detailed explanation of their legislative actionsand strategy to the satisfaction of a state official, at pain of officialstate disapproval in the form of a pejorative ballot label if they failto persuade state officials (and judges) by clear and convincing evidencethat their legislative activity comports with the official state policyfavoring the term-limits amendment. The inquiry also threatens to distractMembers of Congress from their legislative activity by requiring them tospend time preparing their justifications for a state official proceeding.

3. Of course, nothing in the Speech or Debate Clause prevents state officials(or members of the public) from calling on Members of Congress to explaintheir actions with respect to legislation, asking questions of Members aboutsuch actions in debates, or criticizing a Member's legislative record. TheClause does not insulate Members from political accountability for theirlegislative actions. In those situations, however, no official governmentalbenefit or burden turns directly on the Member's response. A Member maychoose whether and how to respond to the question or criticism and retainsthe freedom to take the political consequences of responding, not responding,or framing the response in a particular way. The Member's accountabilityto the voters is preserved, as is his independence from official coercionand oversight.

It is quite a different matter to place in the hands of a state officialthe power to determine how an incumbent candidate shall be treated on theballot based on that Member's legislative record. While a pejorative ballotlabel is not a criminal punishment or civil penalty, it nevertheless isan official action imposing a burden on the candidate. There may be closecases in which it is unclear that unpleasant consequences visited upon anincumbent candidate by state officials because of that Member's legislativerecord constitute impermissible "question[ing]" of the Memberin violation of the Speech or Debate Clause, but this is not one.16


The State maintains that instructions to legislators and ballot notationshave a historical pedigree that establishes the constitutionality of theMissouri Amendments. The State maintains, for example (Pet. Br. 10-14),that the colonial legislatures and, after independence, the States issuedinstructions to their delegates to the Continental Congress, the ConfederationCongress, and the Constitutional Convention. The State also points out thatstate legislatures occasionally issued instructions to Senators electedby those legislatures before the adoption of the Seventeenth Amendment.

None of those examples, however, involved ballot labels imposed by theState or state-imposed conditions on a candidate's access to the ballotfor a popular election. None of them, therefore, is helpful to analyze theMissouri Amendments, under which a state official makes a formal determinationwhether a candidate has spoken or acted on an issue of public concern ina particular way, and then determines how the State shall present that candidateto the electorate. Indeed, almost all the State's examples involved situationswhere the instruction was issued to a delegate by a body with complete controlover the process of determining whether and how that delegate should beconsidered for reelection-for example, the States' delegates to the ConfederationCongress, and Senators elected by state legislatures before the SeventeenthAmendment. In those situations, it is difficult to speak meaningfully ofany impairment of a right of ballot access, as there was no popular election.

The electorate does, of course, have authority to reject any candidatefor Congress based on his articulated or unarticulated position on termlimits. But unlike the election of Senators before the Seventeenth Amendment,popular election of Members of Congress depends on a ballot mechanism. Andno example put forward by petitioner suggests that the State could officiallyhobble a candidate in a popular election campaign because of that candidate'sunwillingness to abide by state instructions.17

The State also points out (Pet. Br. 15-17) that, before the SeventeenthAmendment provided for popular election of Senators, several States adoptedby initiative provisions that informed voters on the ballot whether candidatesfor state legislature had pledged to vote for United States Senator in conformitywith results of an unofficial poll that indicated the popular choice forSenator. In most of those cases, however, the provisions were permissive;they merely allowed candidates to declare to the voters on the ballot thatthey had agreed (or had not agreed) to accept the voters' expressed preferencefor Senator. The State did not itself assign a disapproving ballot labelto candidates who had declined to promise to act in accordance with thatpreference. See 1 George H. Haynes, The Senate of the United States: ItsHistory and Practice 101-103 (1938).18 Thus, those ballot laws did not conditiona clean position on the ballot on the candidate's adoption of any particularposition.

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 partiesto require that candidates for the position of presidential elector in aparty primary pledge, if elected, to support the national party's nomineesfor President and Vice President. (The party would not certify a candidatefor a place on the primary ballot unless he made such a pledge.) The Courtrejected the contention that the law violated the Twelfth Amendment in thatit constrained electors' discretion to vote for President according to theirown judgment. The Court stressed, however, that the purpose of the statelaw was to strengthen the political party system, see id. at 221-222, 226n.14, which the Court has long recognized as a legitimate objective of stateregulation over elections.19 Moreover, the law upheld in Ray was neutralas to content and viewpoint; it did not require presidential electors toexpress support for any particular position or candidate as a conditionof ballot access, but merely allowed parties to require would-be electorsto support whatever candidate the party nominated.20 Accordingly, petitionerhas not pointed to any historical evidence suggesting that a State may placea pejorative label on the ballot next to the name of a candidate who hasfailed to satsify a state official that he has accepted or complied withstate instructions on a particular substantive issue.


The judgment of the court of appeals should be affirmed.

Respectfully submitted.

Solicitor General
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor General




1 In particular, a Member of Congress from Missouri must (a) vote infavor 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 congressionalproceeding, (c) propose or otherwise bring the proposed amendment to a voteof the pertinent legislative body if no other legislator does so, (d) votein favor of bringing the proposed amendment to a vote before any committeeor subcommittee on which he or she serves, (e) reject any attempt to delayor table a vote on the proposed amendment, (f) vote against any proposedterm-limits amendment that would establish longer term limits than Missouri'sproposed amendment, (g) not sponsor any proposed amendment or law that wouldincrease term limits beyond those in Missouri's proposed amendment, and(h) ensure that all votes on term limits are recorded and made publiclyavailable. Mo. Const. Art. VIII, § 17(2)(a)-(h).

2 While this case was pending on appeal, respondent Mike Harman, a candidatefor Congress in Missouri's Seventh District in 1998, intervened as appelleeto challenge the Amendments. Resp. Br. in Opp. 5.

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

4 Several courts have invalidated attempts to favor certain candidatesor parties by assigning them preferred positions on the ballot. See, e.g.,McLain v. Meier, 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 voteto invalidate part of congressional franking statute because "the verynature of American constitutional democracy requires that voters be ableto choose freely between at least two viable parties or candidates").

5 The Court has often emphasized that ballots "serve primarily toelect candidates, not as forums for political expression." Timmonsv. Twin Cities Area New Party, 520 U.S. 351, 363 (1997); see also Burdickv. Takushi, 504 U.S. 428, 438 (1992); id. at 445 (Kennedy, J., dissenting)("the purpose of casting, counting, and recording votes is to electpublic officials, not to serve as a general forum for political expression").This case therefore does not require the Court to ascertain general constitutionallimits on the broad category of "government speech." Cf. Boardof 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 doesnot involve discussion of issues, or even elections, by government officialsin a public forum. Nor does it concern the government's right to publishvoter information guides about an election. Rather, this case involves onlythe State's exercise of its monopoly power over the ballot itself to affixa label that disfavors candidates based on their position on one particularissue.

6 The fact that the Missouri Amendments were at the time of their adoptionsupported by a majority of the voters does not cure their constitutionaldefect. The ballot labels required by the Amendments have the potentialto confuse voters or to overbear their free choice at each subsequent election.For example, even if a majority of a particular congressional district doesnot support term limits, the ballot labels declare that a noncompliant incumbenthas "DISREGARDED [THE] VOTERS' INSTRUCTION ON TERM LIMITS," suggestingthat the Member has disregarded the wishes of all the voters, not just themajority that supported the proposed term-limits amendment in the initiative.Similarly, a majority of the voters of the entire State might now or inthe future no longer support the proposed term-limits amendment, and yetif the constitutional amendment requiring the ballot labels had not yetbeen repealed, a candidate for Congress who publicly opposed term limitscould nonetheless be labeled as noncompliant with the voters' wishes.

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

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

9 See Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 43 (1868) ("Thepeople of these United States constitute one nation * * * [and] have a governmentin 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").

10 Although we do not address herein at length the Qualifications Clausesof Article I or the constitutional-amendment requirements of Article V,the points made in the text support the court of appeals' conclusion thatthe Amendments violate those provisions as well. As the Court observed inUSTL, by prohibiting Congress and the States from imposing any qualificationsfor service in Congress beyond those set forth in the Qualifications Clauses,the Framers intended to ensure that the people would be able to choose forCongress any "citizen whose merit may recommend him to the esteem andconfidence of his country." 514 U.S. at 819 (quoting The FederalistNo. 57, at 351 (Madison)). The Missouri Amendments undermine that free choiceby "handicapping a class of candidates," id. at 831, with thepurpose of preventing the election of candidates who decline to supportthe proposed term-limits amendment. In addition, by constraining Memberselected from Missouri to vote on a proposed constitutional amendment onthe governance of the national union in conformity with direction from theState of Missouri and not the Member's judgment of the national interest,the Amendments are inconsistent with the Constitution's presumption thatMembers of Congress, when exercising their authority under Article V topropose an amendment to the Constitution of the national government, willact on behalf of "the whole people who created it." Id. at 839(Kennedy, J., concurring).

11 This Court has generally reviewed discriminatory conditions on ballotaccess under the First Amendment and the Equal Protection Clause of theFourteenth Amendment. See Anderson v. Celebrezze, 460 U.S. at 786 n.7. Becausethis case involves state regulation of the ballot for elections to federaloffice, the question also arises whether the regulations exceed the State'sauthority under the Elections Clause. The Court has made clear that thelimitations on the State's authority to regulate the ballot for federalelections imposed by the Elections Clause are at least as strict as therestrictions imposed by the First and Fourteenth Amendments. See USTL, 514U.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 Amendmentscontravene the First Amendment, they necessarily exceed the State's authorityunder the Elections Clause as well.

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

13 Thus, although the State may regulate access to the ballot in pursuitof legitimate, non-discriminatory objectives, that does not permit it toimpose viewpoint-based conditions on access to the ballot-just as a Statemay not condition access to public employment on adherence to a certainpolitical party, even though the State may plainly impose numerous regulationson public employment. Cf. Board of Comm'rs v. Umbehr, supra. And althoughthis Court has on numerous occasions upheld regulations that restrict accessto the ballot to those candidates who have demonstrated that they have anontrivial level of support in the community, see Munro v. Socialist WorkersParty, 479 U.S. 189, 194-195 (1986); Anderson v. Celebrezze, 460 U.S. at788-789 n.9; American Party of Tex. v. White, 415 U.S. 767 (1974); Jennessv. Fortson, 403 U.S. 431 (1971), the Court has never suggested that a Statemay use that power to insist that candidates show that they have substantialpopular support for a particular position, or (as here) that they have adopteda particular position that has substantial support in the community. A Statecould not, for example, require candidates seeking access to the ballotto show that a certain percentage of the electorate supported their positionson tax relief and gun control. Such a regulation would skew the electionto the topics that the State, rather than the candidate, deemed sufficientlyimportant to present to the electorate.

14 Petitioner also argues (Pet. Br. 32-34) that the Amendments are notsubject to First Amendment scrutiny at all because the ballot labels supposedlycomment only on a candidate's behavior, not speech. That contention is withoutmerit. With respect to non-incumbent candidates, the assignment of a ballotlabel turns on whether the candidates takes a "pledge" of specificwords, see Mo. Const. Art. VIII, § 18(3), which is unquestionably speech.With respect to incumbent candidates, the assignment of a ballot label turnson whether the Member of Congress has used his or her legislative authorityin certain ways, including making proposals in Congress, see id. §17(2)(c), sponsoring amendments, § 17(2)(g), and voting for the proposedterm-limits amendment, § 17(2)(a). Whether or not the act of votingin 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 legislative activity that is plainlyspeech, such as sponsoring amendments and proposing legislation.

15 The Clause thus protects federal legislators from being "[q]uestioned"about their legislative activity by state officials as well as federal officials.Plainly, the imposition of criminal or civil liability against a Memberof Congress under state law for the Member's legislative acts could seriouslyimpair that Member's independence. Thus, in Hutchinson v. Proxmire, 443U.S. 111 (1979), a state-law tort action brought in federal court againsta United States Senator, the Court nowhere suggested that the Clause wasnot applicable merely because the case arose under state law. Cf. Doe v.McMillan, 412 U.S. 306 (1973) (Clause held applicable to bar tort actionbrought against Members of House of Representatives under District of Columbialaw); Kilbourn v. Thompson, 103 U.S. 168 (1881) (same).

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

17 More generally, the State's examples fail to demonstrate that theFramers would have accepted instructions that were binding, in the sensethat a government official could impose any sanction of substantial consequencefor the failure of a legislator to follow, or a candidate to accept, a statelegislature's instructions. Indeed, with respect to candidates for federaloffice, it is indisputable that the Constitution would forbid a State fromimposing at least some sanctions of that nature. A State could not excludefrom the ballot any candidate for Congress who refused to accept state instructionson any subject, for such a rule would impermissibly impose qualificationsfor the federal office beyond those permitted by the Qualifications Clausesof Article I. See generally USTL, 514 U.S. at 798-802, 829-831. And theSpeech or Debate Clause would plainly forbid a State from imposing civilor criminal sanctions on a Member of Congress based on that Member's failureto follow state instructions. See pp. 22-26, supra.

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

19 The law under review in Ray was similar to laws protecting politicalparties 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 politicalparties in our electoral system by indicating candidates' party affiliationon 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 particularpolitical party has a particular viewpoint, the placement of all candidates'partisan affiliations (if they have one) on the ballot does not send anyparticular message to the electorate. Thus, even-handed disclosure of candidates'partisan affiliation on the ballot presents no threat to candidates' andvoters' First Amendment rights.

It is conceivable, of course, that a State might abuse its policy ofplacing candidates' party affiliation on the ballot to suggest to the votersthat a candidate who is not affiliated with a major political party deservesthe voters' disapproval. The Court has never suggested, however, that sucha practice would be constitutional. See p. 10 & note 4, supra (discussingappellate decisions invalidating preferential ballot treatment for incumbents);cf. Anderson v. Celebrezze, 460 U.S. at 793-794 (close scrutiny requiredfor "[a] burden that falls unequally on new or small political partiesor on independent candidates" because "such restrictions threatento reduce diversity and competition in the marketplace of ideas").

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