Can Tennessee pass a law banning political parties from charging candidates a fee to run under the party's banner?

Subject

Constitutionality of Prohibiting State Political Parties from Charging Fees

Plain-English summary

Senator Kerry Roberts asked whether Senate Bill 1937 (112th Gen. Assem. 2022), a proposed amendment to Tenn. Code Ann. § 2-13-104, would be constitutional. The bill would add one sentence to existing law: "A political party shall not require a person to pay a fee as a requirement to run as a candidate for that political party."

Existing § 2-13-104 already requires candidates for state executive committee or General Assembly seats to be "bona fide members" of the party they seek to represent, and lets parties require by rule that candidates for nominations be bona fide members. The amendment would keep both of those rules but layer on a no-fee requirement.

The AG concluded the amendment is constitutional. Three reasons.

First, states have broad authority to regulate elections. The federal Elections Clause and the Tennessee Supreme Court's Bemis Pentecostal Church v. State and Trotter v. City of Maryville line of cases confirm legislative authority to control election conduct. The General Assembly upheld Tennessee's photo-ID requirement in City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013), as another example of permissible election regulation.

Second, the amendment doesn't conflict with any specific election-related provision in either constitution. The Fifteenth Amendment (no race-based denial), the Nineteenth Amendment (women's suffrage), the Twenty-Sixth Amendment (18-year-old vote), and the Tennessee provisions on legislative election authority and "free and equal" elections are not implicated by a no-fee rule for candidates.

Third, freedom of association under the Fourteenth Amendment is not violated, and may actually be enhanced. The AG's reasoning is that prohibiting a party from imposing a fee on its own candidates removes a barrier to associating with that party for political purposes. NAACP v. Alabama, 357 U.S. 449 (1958), establishes the right to associate for political ideas; eliminating a financial barrier to that association is more compatible with freedom of association than the status quo, not less.

The opinion is bounded: the AG addresses only the proposed amendment as drafted and the analysis turns on its lack of conflict with constitutional protections. A different bill (one that, say, regulated content of candidate platforms or restricted party speech) would require different analysis.

What this means for you

If you are a Tennessee candidate considering a primary run

If SB 1937 (or similar legislation) becomes law, you cannot be required to pay a fee to your party as a condition of running under its banner. The party can still require you to be a bona fide member and impose other non-financial conditions, but a flat candidate fee is barred. This may lower the entry cost for first-time candidates without strong fundraising networks.

If you are leadership in a Tennessee political party

The bill, as the AG analyzes it, would prohibit the party from charging candidates a fee to run. Internal procedures requiring party membership, primary participation, or compliance with party bylaws on non-financial matters would remain. Plan party finances accordingly: lost candidate-fee revenue would need to be replaced through donations or other sources.

If you are a state legislator considering related legislation

The AG opinion is favorable for SB 1937 specifically. Bills that go further, such as restricting party rules on candidate qualifications generally, or imposing other associational restrictions, would need their own constitutional analysis. The opinion does not supply a green light for unrelated party-regulation bills.

If you are an attorney advising on election regulations

Tennessee's Bemis Pentecostal Church line plus the federal Elections Clause cases (Burdick v. Takushi, Storer v. Brown) provide the framework. The freedom-of-association analysis here is permissive: the court is unlikely to strike down a regulation that lowers barriers to party association absent some other identified harm.

Common questions

Q: Did Senate Bill 1937 actually become law?
A: This opinion addresses only its constitutionality, not its enactment status. To verify whether it (or a successor bill) was passed and signed, check the Tennessee General Assembly's bill status tracker.

Q: Could a party charge a member-application or membership fee separately from a candidate fee?
A: The proposed amendment is narrow: it prohibits requiring a fee "to run as a candidate." A party membership fee that applies to all members, regardless of candidacy, is a different question and is not addressed in this opinion.

Q: Does this affect candidates running for federal office in Tennessee?
A: § 2-13-104 by its terms covers candidates for state executive committee membership and General Assembly seats. Federal candidate qualifications are governed by federal law and FEC rules; the state rule on no-fee for state candidates does not displace federal rules.

Q: What if a party calls something a "voluntary contribution" instead of a fee?
A: A genuinely voluntary contribution is not a fee. But a "voluntary" contribution that is in practice a condition of candidacy, with refusal resulting in non-listing, would likely be treated as a prohibited fee. Courts look at substance over form.

Q: Does freedom of association protect a party's right to charge candidate fees?
A: The AG concluded freedom of association does not bar Tennessee from prohibiting candidate fees, and that the prohibition arguably enhances associational freedom by removing a financial barrier to candidacy. NAACP v. Alabama and Kersey v. Wilson are cited.

Background and statutory framework

The U.S. Constitution allocates election regulation primarily to the states. U.S. Const. art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof"). Three constitutional amendments specifically address elections: the Fifteenth (no race-based denial), the Nineteenth (women's suffrage), and the Twenty-Sixth (18-year-old vote).

The Tennessee Constitution at art. IV, § 1, gives the legislature "power to enact . . . laws to secure the freedom of elections and the purity of the ballot box." Article I, § 5 declares that elections "shall be free and equal." The Tennessee Supreme Court in Bemis Pentecostal Church v. State, 731 S.W.2d 897, 901 (Tenn. 1987), recognized that "[t]he authority of the Tennessee Legislature to control the conduct of elections held in this State is manifest" (citing Trotter v. City of Maryville, 235 S.W.2d 13, 18 (1950)).

In City of Memphis v. Hargett, 414 S.W.3d 88, 104 (Tenn. 2013), the court upheld Tennessee's photo-ID requirement as a permissible exercise of the General Assembly's authority. Bemis itself upheld the Campaign Financial Disclosure Act.

On the federal side, Burdick v. Takushi, 504 U.S. 428, 433 (1992), confirms that "government must play an active role in structuring elections" and recognizes "the [Supreme] Court therefore has recognized that States retain the power to regulate their own elections." Storer v. Brown, 415 U.S. 724, 730 (1974), similarly recognizes states' "comprehensive, and in many respects, complex, election codes."

Existing Tenn. Code Ann. § 2-13-104 provides that "[a]ll candidates for state executive committee membership and for membership in the general assembly shall be bona fide members of the political party whose election they seek." It also lets a party require by rule that candidates for its nominations be bona fide members.

The freedom-of-association analysis runs through the Fourteenth Amendment, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) ("freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause"). The AG concludes the amendment, by lowering a financial barrier, enhances rather than restricts associational freedom.

Citations

Statutes and constitutional provisions:
- Tenn. Code Ann. § 2-13-104 (party-affiliation requirement; existing text)
- S.B. 1937, 112th Gen. Assem. (2022) (proposed addition prohibiting fees)
- U.S. Const. art. I, § 4, cl. 1 (Elections Clause)
- U.S. Const. amend. XIV (freedom of association via Due Process)
- U.S. Const. amends. XV, XIX, XXVI (suffrage protections)
- Tenn. Const. art. IV, § 1 (legislative election authority)
- Tenn. Const. art. I, § 5 (free and equal elections)

Cases:
- Burdick v. Takushi, 504 U.S. 428, 433 (1992)
- Storer v. Brown, 415 U.S. 724, 730 (1974)
- Bemis Pentecostal Church v. State, 731 S.W.2d 897, 901, 907 (Tenn. 1987)
- Trotter v. City of Maryville, 235 S.W.2d 13, 18 (1950)
- City of Memphis v. Hargett, 414 S.W.3d 88, 104 (Tenn. 2013)
- NAACP v. Alabama, 357 U.S. 449, 460 (1958)
- Kersey v. Wilson, No. M2005-02106-COA-R3-CV, 2006 WL 3952899 (Tenn. Ct. App. Dec. 29, 2006)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-05.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 14, 2022
Opinion No. 22-05
Constitutionality of Prohibiting State Political Parties from Charging Fees

Question
Is Senate Bill 1937, 112th Gen. Assem. (2022), a proposed amendment to Tenn. Code
Ann. § 2-13-104 that would prohibit political parties from requiring individuals to pay fees to run
for office as candidates for those parties, constitutional?

Opinion
Yes. Tennessee, like all States, has broad authority to regulate its elections so long as those
regulations do not violate the U.S. or Tennessee Constitutions. Because this amendment does not
conflict with any provision of the U.S. or Tennessee Constitution, and in fact makes it easier for
prospective candidates to associate with the State's political parties, it appears to be a permissible
exercise of the General Assembly's authority to regulate elections.

ANALYSIS

"Common sense, as well as constitutional law, compels the conclusion that government
must play an active role in structuring elections." Burdick v. Takushi, 504 U.S. 428, 433 (1992).
Indeed, "as a practical matter, there must be a substantial regulation of elections if they are to be
fair and honest and if some sort of order, rather than chaos, is to accompany the democratic
processes." Id. (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). States, the Constitution
provides, "may prescribe '[t]he Times, Places and Manner of holding Elections for Senators and
Representatives,'" and "the [Supreme] Court therefore has recognized that States retain the power
to regulate their own elections." Id. (quoting U.S. Const. art. 1, § 4, cl. 1).

The Tennessee Supreme Court has similarly recognized that "[t]he authority of the
Tennessee Legislature to control the conduct of elections held in this State is manifest." Bemis
Pentecostal Church v. State, 731 S.W.2d 897, 901 (Tenn. 1987) (citing Trotter v. City of Maryville,
235 S.W.2d 13, 18 (1950)). It follows, then, that the Tennessee General Assembly has authority
to pass laws regulating the State's elections so long as those laws do not run afoul of the U.S. or
Tennessee Constitutions or valid federal legislation. See, e.g., City of Memphis v. Hargett, 414
S.W.3d 88, 104 (Tenn. 2013) (upholding Tennessee's photo-ID requirement as a permissible
exercise of the General Assembly's authority to regulate elections); Bemis Pentecostal Church,
731 S.W.2d at 907 (upholding Tennessee's Campaign Financial Disclosure Act and concluding
that it served a variety of election-related interests).

The amendment at issue here is an exercise of that legislative authority. Existing Tennessee
law requires that "[a]ll candidates for state executive committee membership and for membership
in the general assembly shall be bona fide members of the political party whose election they
seek." Tenn. Code Ann. § 2-13-104. That same statute further provides that, with limited
exceptions, "a party may require by rule that candidates for its nominations be bona fide members
of the party." Id. The proposed amendment adds another sentence to this statute, which reads:
"[A] political party shall not require a person to pay a fee as a requirement to run as a candidate
for that political party." S.B. 1937, 112th Gen. Assem. (2022). This means that the statute, if
amended, would permit a political party to require that candidates for its nominations be members
of the party but would forbid the political party from requiring the candidate to pay a fee to run for
office as a member of the party.

Although the federal Constitution delegates election management largely to the States, U.S.
Const. art. 1, § 4, cl. 1, it does have three provisions specifically related to elections. The Fifteenth
Amendment ensures that "[t]he right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous condition of
servitude." U.S. Const. amend. XV. The Nineteenth Amendment extends that same guarantee to
women, U.S. Const. amend. XIX, and the Twenty-Sixth guarantees the right to vote to all citizens
over the age of 18, U.S. Const. amend. XXVI.

The Tennessee Constitution has two provisions specifically dealing with elections. It gives
the General Assembly "power to enact . . . laws to secure the freedom of elections and the purity
of the ballot box." Tenn. Const. art. IV, § 1. And it further provides that the elections in this State
"shall be free and equal." Tenn. Const. art. I, § 5.

Nothing in the proposed amendment is likely to run afoul of any of these election-related
provisions in either the federal or the Tennessee Constitution. It does not impinge on anyone's
right to vote, nor does it interfere with free and fair elections.

And the same is true when it comes to the other potentially applicable federal and state
constitutional protections. Most relevant to the proposed amendment is the constitutional
guarantee of freedom of association. The U.S. Constitution, through the Fourteenth Amendment,
guarantees this freedom. It "is beyond debate," the Supreme Court has observed, "that freedom to
engage in association for the advancement of beliefs and ideas is an inseparable aspect of the
'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces
freedom of speech." NAACP v. Alabama, 357 U.S. 449, 460 (1958). The freedom of association
is also protected under Tennessee law. See, e.g., Kersey v. Wilson, No. M2005-02106-COA-R3-
CV, 2006 WL 3952899, at *8 (Tenn. Ct. App. Dec. 29, 2006) (dissolving an injunction because it
"severely inhibit[ed] [a plaintiff's] freedom of association"). If anything, the proposed amendment
might have the effect of enhancing that freedom because, by prohibiting political parties from
imposing fees on their candidates for public office, it removes a barrier to political association; it
does not create one.

In sum, the General Assembly has the authority to pass legislation prohibiting state political
parties from requiring individuals to pay fees to run for office as candidates for those political
parties so long as that legislation is consistent with the U.S. and Tennessee Constitutions. And
because the proposed amendment likely does not violate the provisions of either Constitution, it
appears to be a permissible exercise of the General Assembly's authority.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MATTHEW D. CLOUTIER
Assistant Attorney General

Requested by:
The Honorable Kerry Roberts
State Senator
425 Rep. John Lewis Way N.
Suite 730 Cordell Hull Building
Nashville, Tennessee 37243