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Flashcards in Constitutional Law Deck (140):

Judicial Power: Source, Scope, and Limitations

Article III

The jurisdiction of the federal courts is limited to cases or controversies

Limitations: The Eleventh Amendment and State Sovereign Immunity


Eleventh Amendment and State Sovereign Immunity

You cannot sue a state for money damages in either state or federal court unless:
- the state consents; or
- the US Congress expressly say so to enforce Fourteenth Amendment rights


Who can you sue then?

A state officer
- Can always get injunctive relief simply by enjoining the appropriate state officer
- Can also get money damages, but only from the officer personally


Original Jurisdiction

A case may be filed first in Supreme Court (controversies between states, mostly)



Most cases that go to Supreme Court

Discretionary with the court

Supreme Court is the only federal court that exercises discretionary jurisdiction


Limitations on the Supreme Court's Appellate Jurisdiction

Congress can make exceptions to the Court's appellate jurisdiciton


Adequate and Independent State Grounds

The Supreme Court can review a state court judgment ONLY if it turned on federal grounds. The court has no jurisdiction if the judgment below rested on an adequate and independent state ground.

Adequate: state ground must control the decision no matter how a federal issue is decided

Independent: The state law des not depend on an interpretation of federal law.


Standing to Sue

Standing requires injury, causation, and redressability


Standing: Injury

Can be almost anything past or future

Must be concrete, but need not be economic

Mere ideological objection is not injury


Standing: Redressability

A court can remedy or redress the injury

If the injury is in the past, the redress is damages

If future injury is threatened, the redress is an injunction

*Past injury does not give automatic standing to seek an injunction for future injury. Must show that it will happen again


Taxpayer Standing

Federal taxpayers ALWAYS have standing to challenge their own tax liability

Taxpayers do not have standing to challenge government expenditures
- EXCEPTION: under the Establishment Clause, an establishment of religion challenge to specific congressional appropriations can be challenged by any taxpayer


Legislative Standing

Legislators do not have standing to challenge laws that they voted against


"Third-Party Standing"

Refers to the question of whether you can raise the rights of someone else

Generally, no
EXCEPTION: parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction



Concerns prematurity of a case. Must show actual harm or an immediate threat of harm



Cases that are overripe and are dismissed whenever they become moot

Exception: Controversies capable of repetition, yet evading review


Advisory Opinions

Federal courts cannot issue advisory opinions
- Cannot rule on the constitutionality of proposed legislation


Political Questions

A non-justiciable question - courts will not decide because there ware no manageable standards for judicial decision-making

- Guarantee Clause (protecting the republican form of government);
- Foreign affairs
- Impeachment procedures
- Political gerrymandering


Legislative Power: Three Wrong Answers

- Promoting the general welfare is not a power of Congress
- The federal government does not have a general police power
- Necessary and Proper is not a free-standing power of Congress. It works only as an add-on to some other legislative power


The Commerce Power

Almost anything can be regulated as interstate commerce.

Congress can regulate:
- The channels of interstate commerce;
- The instrumentalities of interstate commerce; and
- Intrastate and interstate activity (economic or commercial) that has a substantial effect on interstate commerce.
(substantial effect judged in the aggregate)


The Taxing Power

The Taxing Clause is the right answer whenever Congress imposes a tax, even when the tax is actually used to prohibit the good or activity in question

The tax must be rationally related to raising revenue


The Spending Power

Includes spending for the general welfare

Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause



Congress cannot force states to adopt or enforce regulatory programs.

It cannot commandeer state and local officers to carry out federal programs


What can Congress do to enforce regulatory programs?

It can bribe states through use of the spending power

It can adopt its own regulatory program and enforce it with federal officers


The war and Defense Powers

Congress has the power to
- declare war and the power to maintain the Army and Navy
- provide for military discipline of the United Staes armed forces Members

Can provide for military trial of enemy combatants and enemy civilians

Cannot provide for military trial of U.S. civilians


Thirteenth Amendment

Congress has broad power to legislate against racial discrimination, whether public or private

(includes purely private racial discrimination)


Fourteenth Amendment

Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts (does not enable Congress to redefine constitutional rights by legislation)

To be properly remedial, the legislation must have "congruence" and "proportionality" - there must be a reasonable fit between the remedial law enacted by Congress and the constitutional right as declared by the Supreme Court

Congress does not have the power to overrule the Court's decisions and define new rights


Fifteenth Amendment

Congress has the power to ensure no racial discrimination in voting


Domestic Powers of the President

- Enforce the law (greatest when authorized by statute)

Exclusively executive powers:
- Pardon power
- Veto Power
- Appointment and Removal of Executive Officers


Pardon Power

The President can pardon or commute punishment for all federal offenses


Veto Power

The President has 10 days to veto legislation.
- can veto for any or no reason, but cannot veto specific items in the legislation and accept others

Overriding a veto requires a 2/3 majority vote of each house


Appointment and Removal of Executive Officers

Only the President (or his appointees) can hire or fire executive officers.

Some senior officers require the advice and consent of the Senate.

The senate has power of rejection. The Senate's approval Power does not translate into a power of appointment


Who are executive officers?

Anyone who takes action on behalf of the U.S.


Foreign Affairs Powers of the President

- Commander in Chief
- Treatises and Executive Agreements


Commander in Chief

The president has control over military decisions, although Congress has exclusive power to declare war



Negotiated by the President, but require approval by a 2/3 vote of the Senate.

Once a treaty is ratified, it has the same authority as a statute


Executive Agreements

Presidential negotiations not submitted for approval by the Senate

Can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. They do not have the binding status of a treaty.


Congressional Limits on the Executive

1. Impeachment
2. Impoundment
3. Legislative Veto



Applies to executive officers.

An accusation of high crimes or misdemeanors requiring a majority vote of the House of Representatives
- Trial in the Senate
- Conviction requires 2/3 vote of the Senate
- the remedy is removal from office, no other penalty applies



If a statute gives the president discretion to spend or withhold funds, he may do so.

But, when a statute unambiguously requires that funds be spend, the President cannot refuse to do so. There is no power to impound funds.


Legislative Veto


Happens when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution
- If Congress wants to override future executive actions, it must change the law
- Congress cannot evade the President's guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution


Delegation of Powers

congress can delegate its power to administrative agencies, so long as there are intelligible standard governing the exercise of that delegated power


Presidential Immunity

- Absolute immunity for official acts
-NO immunity for acts done prior to taking office

- Executive privilege not to reveal confidential communications with presidential advisers, but that privilege can be outweighed by a specifically demonstrated need in criminal prosecution


Judicial Immunity

Judges have absolute immunity for all judicial acts, but may be liable for non-judicial activities


Legislative Immunity

United States Senators and Representatives (not state legislators) are protected by the Speech or Debate Clause
- Senators and Congressmen and their aides cannot be prosecuted or punished in relation to their official acts


Federal and State Powers

Even though federal powers are superior, most federal powers are concurrent with those of the states

Some powers are exclusively federal
- power over foreign relations
- power to coin money


Intergovernmental Immunities

The federal government is generally immune from direct state regulation or taxation
- States can tax indirectly, such as taxing the income of federal employees

States are not immune from direct federal regulation
- State laws cannot shield state officers from federal liability
Exception: anti-commandeering


Privileges and Immunities of State Citizenship under Article IV (Comity Clause)

Forbids serious discrimination against out-of-state individuals
- does not protect out-of-state corporations
- "serious discrimination" typically involves employment

Rule: There can be no legal requirement of residency for private employment. States cannot require that you live/reside in the state to work in the state (however, public employment can require residency requirements)


Dormant Commerce Clause

In the absence of federal regulation, state regulation of commerce is VALID so long as:
1) There is no discrimination against out-of-state interests;
2) The regulation does not unduly burden interstate commerce; and
3) The regulation does not apply to wholly extraterritorial activity


Exceptions to No State Discrimination Against Out-of-State Interests

- State as Market Participant
- Subsidies
- Federal Approval


State as Market Participant

When a state is buying or selling goods or services, it can choose to deal with only in-state persons



Exception to No State Discrimination Against Out-of-State Interests

A state can always choose to subsidize only its own citizens


Federal Approval of Discrimination Against Out-of-State Interests

The Dormant Commerce Clause applies only in the absence of federal action.

If Congress authorizes or consents to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests


State Taxation of Interstate Commerce

Discriminatory taxation: will be struck down unless Congress consents

Nondiscriminatory taxation is valid if:
1) substantial nexus between the taxing state and the property or activity to be taxed
2) Must be a fair apportionment of tax liability among states


Ad Valorem Property Taxes

Levied on Personal Property

Commodities: goods that move from state to state
- The full tax is paid to every state where the goods are stopped for a business purpose on tax day
- No taxes due when they are merely passing through

Instrumentalities: the transportation equipment that moves commodities
- each state in which an instrumentality is used can tax the value of that instrumentality



Federal law preempts inconsistent state law

State law is not preempted simply because it addresses the same subject matter/topic as a federal statute. There must be incompatibility or conflict


Preempting the Field

When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted.


Interstate Compacts

Agreements among states

States can make interstate compacts, but if the compact affects federal right, Congress must approve


Full Faith and Credit Clause

States don't have to follow other states' laws, but they do have to give full faith and credit to judgments rendered by other states' courts, so long as the rendering court had jurisdiction to render a final judgment on the merits


State Action

Means government action, whether state or local. Government cannot be significantly involved in private discrimination.

13th Amendment applies directly to private parties and individuals

Government cannot:
- facilitate private discrimination
- profit from private discrimination
- enforce a private agreement to discriminate

Government is NOT required to prevent private discrimination


Anti-Discrimination Statutes

State action is required to show a violation of the Constitution

State action is irrelevant if there is anti-discrimination legislation


Procedural Due Process Questions

1) Is life, liberty, or property being taken?
2) If yes, what process is due?



death penalty requires procedural due process



physical confinement, probation and parole, physical injury, andy restriction on legal rights

Injury to reputation is NOT a loss of liberty



You have a property interest in your government job or benefit whenever you have a legitimate entitlement to continued enjoyment of the job or benefit
- a mere expectation of continued employment or benefit does not suffice


How can you tell whether you have an entitlement to a government job or whether you have a mere expectation of government employment?

Government jobs are entitlements only when the government says so - such as by providing a contractual term or discharge "for cause"


Deprivation of Life, Liberty, or Property

Notice and a hearing are not required when there is an accident.

Random negligence by a state employee does not constitute a deprivation of life, liberty, or property.

Deprivation requires the intentional taking away of life, liberty, or property


What Process is Due?
Three Factors

1) The individual interest at stake (life, liberty, property)
2) The value of the procedure in protecting that interest; and
3) The government Interest


Timing of Deprivation Hearings

Sometimes a hearing must occur before deprivation
- terminating welfare benefits
- non-emergency revocations of driver's licenses

Sometimes the hearing can occur after the action, so long as the hearing is prompt and fair
- terminating disability benefits
- dismissing students for academic reasons


Public Employees who can be fired only "for cause"

Must be given some opportunity to be heard prior to discharge, unless there is a significant reason not to keep the employee on the job

If there is a significant reason not to keep a person on the job, then the discharge can com first with a subsequent hearing that is prompt and provides reinstatement with fair back pay


Strict Scrutiny

Is the law necessary for a compelling government interest?

Implicit in strict scrutiny is the requirement for the least restrictive means

When strict scrutiny applies, the government bears the burden of proof

Application: Suspect Classification or a Fundamental Right


Intermediate Scrutiny

Is the law substantially related to an important government interest?

Application: Legitimacy and Gender


Rational Basis

Is the law rationally related to a legitimate interest?

The challenger bears the burden of proof.

Application: All residual cases


Due Process vs. Equal Protection

If a law denies a fundamental right to everyone, it violates due process.

If a law violates a fundamental right to only some, it violates equal protection.


Fundamental Rights

- Travel
- Voting and Ballot Access
- Privacy


Fundamental Privacy Rights

- Marriage
- Contraception
- Sexual Intimacy
- Abortion
- Parental Rights
- Family Relations
- Obscene Material

- Refusal of medical treatment



Fundamental right of interstate travel and settlement

States can impose reasonable residency requirements for political participation and government benefits
- most are 30-90 days
- one year is too long for everything except in-state tuition and jurisdiction to grant a divorce

All residents have a right to be treated equally. A state cannot have a tax scheme that favors long-term residents over recently arrived residents



Voting is a fundamental right to all citizens age 18 and over
- Poll taxes are unconstitutional because they burden the fundamental right to vote
- Short-term (30 day) residency requirements are permitted
- Congress controls the residency requirements for presidential elections. States control residency requirements for all other elections


Ballot Access

States can impose requirements for candidates to be listed on a ballot, such as:
- longer residency
- filing fees
- nomination petitions
So long as serious candidates can reasonably comply

If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional



Fundamental Right

There are all sorts of requirements for marriage, but substantial interference with marriage - including same-sex- marriage - is unconstitutional.



It is a fundamental right for everyone, whether married or not, to purchase contraceptives


Sexual Intimacy

Perhaps not technically a fundamental right - the Supreme Court found that the government has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults, including same-sex couples



Roe v. Wade: A woman has a right to terminate her pregnancy until viability of the fetus

States regulate abortion in a variety of ways, but they cannot impose an undue burden on the woman's right to terminate her pregnancy

- Informed-consent requirements
- 24 hour waiting periods
- Parental notification (for minors)

Not allowed:
- Parental consent requirements
- Spousal consent requirements

Government financing of abortion is not required


Parental Rights

Parents have a fundamental right to raise their children as they see fit, including the choice of religious or private schools
- Can lose their rights through abandonment, abuse, or neglect


Family Relations

Includes the right to live together with close relatives


Obscene Material

Fundamental right to read obscene material in the privacy of one's own home
- Does not apply to child pornography

No fundamental right to purchase, sell, import, or distribute such material


Refusal of Medical Treatment

Not clear whether this is a fundamental right, but there is a liberty interest in refusing medical treatment

No right to commit suicide


Equal Protection: General Considerations

Privileges or Immunities of National Citizenship under the 14th Amendment means nothing today (so never the correct answer on the MBE)

14th prohibits serious discrimination against out-of-state individuals, especially in the context of access to the private job market


Two Due Process Clauses

Fifth Amendment: applies to the federal government

Fourteenth Amendment: applies to localities and states


Suspect Classifications

Trigger strict scrutiny and arise under equal protection

Race, Ethnicity, or National Origin (laws that disadvantage minorities will be struct down)

Discriminatory purpose is required


Discriminatory Purpose

May be:
- explicit on the face of the statute
- proved by a history of discriminatory application
- by extrinsic evidence about the purposes of those who passed the law

School desegregation: Segregation by law is unconstitutional. De facto segregation is not.


Affirmative Action

Triggers strict scrutiny and requires a compelling interest

Specific past discrimination: affirmative action is valid when it specifically correct past discrimination by the specific department or agency now engaged in affirmative action


Affirmative Action inn the Context of Preferential Admissions to Colleges and Universities

Allowed if necessary to achieve a diverse student body and diversity is essential to the education
- Must be a strong showing that racial preferences are essential to achieving a diverse class
- Racial preferences must be "holistic" and flexible

- Quotas are not allowed
- Separate tracks or procedures for minority applicants are not allowed
- Preferential admissions not allowed for secondary schools



Requirement of U.S. Citizenship

Classifications based on US citizenship are generally suspect classifications that require a compelling interest

Two exceptions:
1) Federal government
- Congress has plenary power over citizenship and naturalization
- Federal classifications based on US Citizenship do not trigger strict scrutiny
- Federal classifications are valid unless arbitrary and unreasonable
2) State and local participant in government functions
- jobs that have a particular relevance to the role of government and non-US citizens can be barred from these jobs
- States and localities may require US citizenship for participation in government functions

Rule: States and localities cannot require US citizenship for access to private employment or for government benefits


Quasi-Suspect Classifications

Gender and Legitimacy

Trigger intermediate scrutiny - is the law substantially related to an important government interest

Gender classifications are almost always invalid
- Permissible examples: statutory rape and the draft

Legitimacy (whether parents were married at the time of one's birth) - almost always invalid, especially if punitive in nature


Non-Suspect Classifications

Age and Wealth

Rational Basis

Age discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under the Equal Protection Clause

Wealth is not a suspect or quasi-suspect classification, but the government has to waive filing fees for indigents when charging the fees would deny a fundamental right (divorce, transcript for appeal of criminal conviction, transcript for appeal of termination of parental rights)


One person, one vote

Requires district of approximately equal size
- Applies whenever you elect representatives by district

Exception: Special purpose governments - a highly specialized government (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage or water entitlements)


Racial Gerrymandering

Vote Dilution: Drawing districts to scatter minorities so that they are not crucial in any one district is unconstitutional if done with a discriminatory purpose.

Voting Rights Act: Requires racial gerrymandering to ensure minority success by creating majority-minority districts

Rule: Race may be a factor in drawing district lines, but not to the predominate or only factor
- Other factors: compactness and observing local, political subdivisions


Political Gerrymandering

Drawing districts to hurt one party

Can, in theory, violate equal protection. In practice, it's never struck down.

The Supreme Court has not found any judicially manageable standards for implementing that guarantee


Privileges & Immunities Clauses Distinguished

Recall that the Privileges & Immunities Clause of state citizenship under Article IV prohibits serious discrimination against out-of-state individuals, chiefly regarding employment



Private property shall not be taken for public use without just compensation

Public Use: basically anything. Need only be rationally related to a conceivable public purpose.

Just Compensation: Fair market value at the time of the taking


Taking vs. Regulation

If there is a taking of property, compensation is required; if there is a mere regulation on property, compensation is not required, even if the regulation reduces the value of the property


Economic Impact by Government

The adverse economic impact of the government's action does not necessarily mean there has been a taking. Many regulations can dramatically affect the value of property but that does not trigger a right to compensation


Physical Occupation by Government

If the government physically occupies a private owner's property, then a taking has occurred and it owes just compensation
- If the government physically occupies only a tiny portion of your property, it is still a taking

Generally, no physical occupation means no taking has occurred



Not a taking and no compensation required, so long as the zoning advances a legitimate interest and does not extinguish a fundamental attribute of ownership


Regulatory Taking

A zoning regulation can be considered a taking when it leaves no economically viable use for the property (rare)


Development Permits

Development is conditioned on "concessions" by the developer, such as an access road or donating land to a park
- such extractions are valid so long as they can be seen as offsetting the adverse impact of the development


Prohibited Legislation

- Bill of Attainder
- Ex Post-Facto Laws
- Contract Clause


Bill of Attainder


A bill of attainder is a legislative punishment imposed without judicial trial and is unconstitutional


Ex Post Facto Laws


Unconstitutional to expand criminal liability retroactively either by creating a new grime that applies retroactively to past conduct or by increasing the penalty for past conduct


Contract Clause

Bars states from legislative impairment of existing contracts, unless there is an overriding need (something like an emergency)


Three-Part Test of Lemon v. Kurtzman

1) Does the law have a secular purpose?
2) Does the law have a primary effect that neither advances nor inhibits religion?
3) Does the law avoid excessive government entanglement with religion?


Religious Endorsement

It is a violation of the Establishment Clause for the government to endorse one religion over another and to endorse religion over non-religion


Religious Belief

Protected absolutely


Religious Conduct

Protected qualifiedly
- Laws regulating religious conduct conduct because of its religious significant are unconstitutional

Neutral regulation of conduct: neutral, general applicable laws can be enforced despite religious objection


Ministerial Exception

Non-discrimination employment laws cannot be applied to minsters
- the federal government cannot regulate employment relations between a religious institution and its minsters
- minister was construed broadly


Campus Access

A state university that allows student groups to meet a campus must allow student religious groups equal access


Expressive Conduct

Laws regulating express conduct are upheld if:
- They further an important interest;
- That interest is unrelated to the suppression of the expression; and
- The burden on expression is no greater than necessary

Key: if government is trying to suppress a message, then the law will be struck down



Vague laws that give no clear notice of what is prohibited and thus violate due process



Overbroad laws are ones that go too far in regulating speech.

These laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the 1st Amendment


Prior Restraints

Especially disfavored and will be struck down even when other forms of regulation might be upheld
- injunctions against speech are almost impossible to get


Regulation of the Time, Place, or Manner of Expression

Applied principally in a public forum

Public Forum: place where traditionally reserved for speech activities (streets, parks, public sidewalks)


Time, Place, and Manner in a Public Forum Requirements

1) Content Neutral (on its face and as applied)
2) Alternative Channels of Communication Must Be Left Open
3) Must narrowly serve a significant state interest


Nonpublic Forum

Includes all kinds of government property that is not a public forum (government offices, jails, power plants, military bases)
- any reasonable regulation of speech will be upheld


Limited Public Forum

Describes a place that is not a traditional public forum, but that the government chooses to open to all comers
- Time, place, or manner regulations are allowed, but this is a narrow category



Can be regulated because of content if:
- Sexy: erotic, appeal to the prurient interest
- Society Sick: patently offensive to the average person in society
- Standards: must be defined by the proper standards for determining what is obscene, not vague and overbroad
- Serious Value: lacks serious value (artistic, scientific, educational, or political). Determination based on national standard, not a local one


Obscenity and Minors

A lesser legal standard can be applied to minors, but the government cannot ban adult speech simply because it would be an in appropriate for minors


Child Pornograpy

Can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home


Obscenity and Land Use Restrictions

Narrowly drawn ordinances can regulate the zoning of adult theaters, but cannot ban them entirely



Speech is not protected if it is an incitement to immediate violence


Fighting Words

Words likely to provoke an immediate breach of the peace
- Must be aimed/targeted at someone, and that person might hit back
- generally vulgarity is not enough

In theory, fighting words are not protected speech. In fact, all fighting words statutes on the bar exam are unconstitutionally vague and/or overbroad



False statements of fact (not opinion) damaging to a person's reputation can be prohibited.
- Public officials/figures can recover for defamation only on proof of knowing or reckless falsity
- Private plaintiffs can recover on proof of negligent falsity


Commercial Speech

Most regulations of commercial speech are struck down. So long as the advertising is truthful and informational, it is allowed.

Regulations of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest

Misleading commercial speech may be prohibited


Governmental Speech

First Amendment restrictions don't apply to the government as a speaker

Government as a speaker is free to express a point of view
- does not have to accept all monuments donated by a private person simply because it accepts one
- Specialty license plates bearing messages requested by purchasers are still government speech, so the government can refuse to issue plates that would be offensive to other citizens


Regulation of the Media

The press/media have no special privileges. They have the same rights as everyone else



The only special case is broadcasters

-Traditionally, because of early limits on the broadcast spectrum, government had greater regulatory authority over broadcasters than over print media or the internet


Regulation of Association

Freedom of Association: cannot be punished because of political associations

Loyalty Oaths: Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as vague and/or overbroad

Bar Membership: States can investigate good character, but they cannot deny admission based on political affiliations

Political Parties: States cannot require open primaries


Speech by Government Employees

General Rule: Government employees cannot be hired or fired based on political philosophy, an any act of expression

Exception: does not apply to conficential advisors or policy-making employees


Campaign Finance

The use of money to support a political campaign is political speech and the regulation of that money raises First Amendment issues



Campaign contributions can be regulated, provided that the limits are not unreasonably low

Direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated


Independent Campaign Expenditures vs. Coordinated Expenditures

Independent expenditures cannot be regulated

A coordinated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated

The constitutional protection of direct independent expenditures applies to corporations, including nonprofits, and unions

the Supreme Court has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures