A Berkeley, Cal., ordinance places a limitation of $250 on
contributions to committees formed to support or oppose ballot
measures submitted to a popular vote. When appellant association,
which was formed to oppose a ballot measure imposing rent control
in the city, accepted some contributions exceeding the $250 limit,
appellee Berkeley Fair Campaign Practices Commission ordered the
association to pay the excess into the city treasury. The
association then brought suit in California Superior Court seeking
injunctive relief against enforcement of the ordinance, and that
court subsequently granted summary judgment for the association,
holding that the ordinance was invalid on its face as a violation
of the First Amendment. The California Court of Appeal affirmed,
but the California Supreme Court reversed, holding that the
ordinance furthered compelling governmental interests in ensuring
that special interest groups could not "corrupt" the initiative
process by spending large amounts to support or oppose a ballot
measure, which interests outweighed the First Amendment interests
infringed upon.
Held: The restraint imposed by the ordinance on the
right of association, and, in turn, on individual and collective
rights of expression, plainly contravenes both the right of
association and the speech guarantees of the First Amendment. Pp.
454 U. S.
294-300.
(a) To place a limit on individuals wishing to band together to
advance their views on a ballot measure, while placing no limit on
individuals acting alone, is clearly a restraint on the right of
association.
Buckley v. Valeo, 424 U. S.
1, held that contributions to candidates or their
committees could be restricted in order to prevent corruption or
its appearance. Here, there is no risk of corruption, because this
case relates to contributions to committees favoring or opposing
ballot measures. Also, there is no risk that the voters will be in
doubt as to the identity of those whose money supports or opposes a
given ballot measure, since the contributors must make their
identities known under the disclosure provisions of the ordinance.
Under the exacting judicial review appropriate for
infringements
Page 454 U. S. 291
of First Amendment rights, the $250 limit is unconstitutional.
Pp.
454 U. S.
295-299.
(b) The contribution limit automatically affects expenditures,
and limits on expenditures operate as a direct restraint on freedom
of expression of groups and individuals wishing to express
themselves through groups. There is no significant state or public
interest in curtailing debate and discussion of a ballot measure,
and the integrity of the political system will be adequately
protected if contributors are identified in a public filing
revealing the amounts contributed. Pp.
454 U. S.
299-300.
27 Cal. 3d
819, 614 P.2d 742, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, POWELL, REHNQUIST, and STEVENS, JJ., joined. REHNQUIST,
J., filed a concurring opinion,
post, p.
454 U. S. 300.
MARSHALL, J., filed an opinion concurring in the judgment,
post, p.
454 U. S. 301.
BLACKMUN and O'CONNOR, JJ., filed an opinion concurring in the
judgment,
post, p.
454 U. S. 302.
WHITE, J., filed a dissenting opinion,
post, p.
454 U. S.
303.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The issue on appeal is whether a limitation of $250 on
contributions to committees formed to support or oppose ballot
measures violates the First Amendment
Page 454 U. S. 292
I
The voters of Berkeley, Cal., adopted the Election Reform Act of
1974, Ord. No. 4700-N.S., by initiative. The campaign ordinance so
enacted placed limits on expenditures and contributions in
campaigns involving both candidates and ballot measures. [
Footnote 1] Section 602 of the
ordinance provides:
"No person shall make, and no campaign treasurer shall solicit
or accept, any contribution which will cause the total amount
contributed by such person with respect to a single election in
support of or in opposition to a measure to exceed two hundred and
fifty dollars ($250). [
Footnote
2]"
Appellant Citizens Against Rent Control is an unincorporated
association formed to oppose a ballot measure at issue in the April
19, 1977, election. The ballot measure would have imposed rent
control on many of Berkeley's rental units. To make its views on
the ballot measure known, Citizens Against Rent Control raised more
than $108,000 from approximately
Page 454 U. S. 293
1,300 contributors. It accepted nine contributions over the $250
limit. Those nine contributions totaled $20,850, or $18,600 more
than if none of the contributions exceeded $250. Pursuant to § 604
of the ordinance, [
Footnote 3]
appellee Berkeley Fair Campaign Practices Commission, 20 days
before the election, ordered appellant Citizens Against Rent
Control to pay $18,600 into the city treasury.
Two weeks before the election, Citizens Against Rent Control
sought and obtained a temporary restraining order prohibiting
enforcement of §§ 602 and 604. The ballot measure relating to rent
control was defeated. The Superior Court subsequently granted
Citizens Against Rent Control's motion for summary judgment,
declaring that § 602 was invalid on its face because it violated
the First Amendment of the United States Constitution and Art. I, §
2, of the California Constitution. A panel of the California Court
of Appeal unanimously affirmed that conclusion.
The California Supreme Court, dividing 4-3, reversed.
27 Cal. 3d
819, 614 P.2d 742 (1980). Citing
Buckley v. Valeo,
424 U. S. 1 (1976),
the majority announced that it would strictly scrutinize § 602. It
concluded that the section furthered compelling governmental
interests because it ensured that special interest groups could not
"corrupt" the initiative process by spending large amounts to
support or oppose a ballot measure. Such corruption, the court
found, could produce apathetic voters; these governmental interests
were held to outweigh the First Amendment interests infringed upon.
Finally, it concluded that § 602 accomplished its goal
Page 454 U. S. 294
by the least restrictive means available. The California Supreme
Court did not consider the disclosure requirements of the ordinance
a sufficient prophylaxis to dispel perceptions of corruption.
[
Footnote 4]
We noted probable jurisdiction, 450 U.S. 908 (1981), and we
reverse.
II
The appellees concede that the challenged ordinance has an
impact on First Amendment rights; the parties disagree only as to
the extent of the impact. Long ago, this Court admonished that,
with respect to the First Amendment:
"[T]he power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected
freedom."
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 304
(1940). This was but another way of saying that regulation of First
Amendment rights is always subject to exacting judicial review.
We begin by recalling that the practice of persons sharing
common views banding together to achieve a common end is deeply
embedded in the American political process. The 18th-century
Committees of Correspondence and the pamphleteers were early
examples of this phenomenon, and the Federalist Papers were perhaps
the most significant and lasting example. The tradition of
volunteer committees for collective action has manifested itself in
myriad community and public activities; in the political process,
it can focus on a candidate or on a ballot measure. Its value is
that, by collective effort, individuals can make their views known
when, individually, their voices would be faint or lost.
Page 454 U. S. 295
The Court has long viewed the First Amendment as protecting a
marketplace for the clash of different views and conflicting ideas.
That concept has been stated and restated almost since the
Constitution was drafted. The voters of the city of Berkeley
adopted the challenged ordinance which places restrictions on that
marketplace. It is irrelevant that the voters, rather than a
legislative body, enacted § 602, because the voters may no more
violate the Constitution by enacting a ballot measure than a
legislative body may do so by enacting legislation.
III
A
The Court has acknowledged the importance of freedom of
association in guaranteeing the right of people to make their
voices heard on public issues:
"Effective advocacy of both public and private points of view,
particularly controversial ones, is undeniably enhanced by group
association, as this Court has more than once recognized by
remarking upon the close nexus between the freedoms of speech and
assembly."
NAACP v. Alabama, 357 U. S. 449,
357 U. S. 460
(1958). More recently, the Court stated: "The First Amendment
protects political association, as well as political expression."
Buckley v. Valeo, supra, at
424 U. S. 15.
Buckley also made clear that contributors cannot be
protected from the possibility that others will make larger
contributions:
"[T]he concept that government may restrict the speech of some
elements of our society in order to enhance the relative voice of
others is wholly foreign to the First Amendment, which was designed
"to secure
the widest possible dissemination of information
from diverse and antagonistic sources,'" and "`to assure unfettered
interchange
Page 454 U. S.
296
of ideas for the bringing about of political and social
changes desired by the people.'" New York Times Co. v.
Sullivan, [376 U.S.] at 376 U. S. 266,
376 U. S. 269,
quoting Associated Press v. United States, 326 U. S.
1, 326 U. S. 20
(1945), and Roth v. United States, 354 U.S. at
354 U. S. 484.
The First Amendment's protection against governmental abridgment of
free expression cannot properly be made to depend on a person's
financial ability to engage in public discussion. Cf. Eastern
R. Conf. v. Noerr Motors, 365 U. S. 127,
365 U. S. 139
(1961)."
424 U.S. at
424 U. S. 48-49.
The Court went on to note that the freedom of association
"is diluted if it does not include the right to pool money
through contributions, for funds are often essential if 'advocacy'
is to be truly or optimally 'effective.'"
Id. at
424 U. S. 65-66.
[
Footnote 5] Under the Berkeley
ordinance, an affluent person can, acting alone, spend without
limit to advocate individual views on a ballot measure. It is only
when contributions are made in concert with one or more others in
the exercise of the right of association that they are restricted
by § 602.
There are, of course, some activities, legal if engaged in by
one, yet illegal if performed in concert with others, but political
expression is not one of them. To place a Spartan limit -- or
indeed any limit -- on individuals wishing to band together to
advance their views on a ballot measure, while placing none on
individuals acting alone, is clearly a restraint on the right of
association. Section 602 does not seek to mute the voice of one
individual, and it cannot be allowed to hobble the collective
expressions of a group.
Buckley identified a single narrow exception to the
rule that limits on political activity were contrary to the
First
Page 454 U. S. 297
Amendment. The exception relates to the perception of undue
influence of large contributors to a
candidate:
"To the extent that large contributions are given to secure a
political
quid pro quo from current and potential office
holders, the integrity of our system of representative democracy is
undermined. . . ."
". . . Congress could legitimately conclude that the avoidance
of the appearance of improper influence 'is also critical . . . if
confidence in the system of representative Government is not to be
eroded to a disastrous extent.' [
CSC v. Letter Carriers,]
413 U.S. at
413 U. S. 565."
424 U.S. at
424 U. S. 26-27.
Buckley thus sustained limits on contributions to
candidates and their committees.
Federal Courts of Appeals have recognized that
Buckley
does not support limitations on contributions to committees formed
to favor or oppose
ballot measures. In
C & C
Plywood Corp. v. Hanson, 583 F.2d 421 (1978), the Ninth
Circuit struck down a Montana statute prohibiting corporate
contributions supporting or opposing ballot measures. In so doing
the court noted:
"The state interest in preventing corruption of officials, which
provided the basis for the Supreme Court's finding in
Buckley that restrictions could permissibly be placed on
contributions, is not at issue here."
Id. at 425. Similarly, the Fifth Circuit interpreted
Buckley to hold that
"[t]he sole governmental interest that the Supreme Court
recognized as a justification for restricting contributions was the
prevention of
quid pro quo corruption between a
contributor and a candidate."
Let's Help Florida v. McCrary, 621 F.2d 195, 199
(1980).
In
First National Bank of Boston v. Bellotti,
435 U. S. 765
(1978), we held that a state could not prohibit corporations, any
more than it could preclude individuals, from making
contributions
Page 454 U. S. 298
or expenditures advocating views on ballot measures. The
Bellotti Court relied on
Buckley to strike down
state legislative limits on advocacy relating to ballot
measures:
"Referenda are held on issues, not candidates for public office.
The risk of corruption perceived in cases involving candidate
elections [citations omitted] simply is not present in a popular
vote on a public issue. To be sure, corporate advertising may
influence the outcome of the vote; this would be its purpose. But
the fact that advocacy may persuade the electorate is hardly a
reason to suppress it: the Constitution 'protects expression which
is eloquent no less than that which is unconvincing.'
Kingsley
Int'l Pictures Corp. v. Regents, 360 U.S. at
360 U. S.
689."
435 U.S. at
435 U. S. 790
(footnote omitted).
Notwithstanding
Buckley and
Bellotti, the city
of Berkeley argues that § 602 is necessary as a prophylactic
measure to make known the identity of supporters and opponents of
ballot measures. It is true that, when individuals or corporations
speak through committees, they often adopt seductive names that may
tend to conceal the true identity of the source. Here, there is no
risk that the Berkeley voters will be in doubt as to the identity
of those whose money supports or opposes a given ballot measure,
since contributors must make their identities known under § 112 of
the ordinance, which requires publication of lists of contributors
in advance of the voting.
See n 4,
supra.
Contributions by individuals to support concerted action by a
committee advocating a position on a ballot measure is, beyond
question, a very significant form of political expression. As we
have noted, regulation of First Amendment rights is always subject
to exacting judicial scrutiny.
Supra at
454 U. S. 294.
The public interest allegedly advanced by § 602 -- identifying the
sources of support for and opposition to ballot measures -- is
insubstantial, because voters may identify those
Page 454 U. S. 299
sources under the provisions of § 112. In addition, the record
in this case does not support the California Supreme Court's
conclusion that § 602 is needed to preserve voters' confidence in
the ballot measure process.
Cf. Bellotti, supra, at
435 U. S.
789-790. It is clear, therefore, that § 602 does not
advance a legitimate governmental interest significant enough to
justify its infringement of First Amendment rights. [
Footnote 6]
B
Apart from the impermissible restraint on freedom of
association, but virtually inseparable from it in this context, §
602 imposes a significant restraint on the freedom of expression of
groups and those individuals who wish to express their views
through committees. As we have noted, an individual may make
expenditures without limit under § 602 on a ballot measure, but may
not contribute beyond the $250 limit when joining with others to
advocate common views. The contribution limit thus automatically
affects expenditures, and limits on expenditures operate as a
direct restraint on freedom of expression of a group or committee
desiring to engage in political dialogue concerning a ballot
measure.
Whatever may be the state interest or degree of that interest in
regulating and limiting contributions to or expenditures of a
candidate or a candidate's committees, there is no significant
state or public interest in curtailing debate and discussion of a
ballot measure. Placing limits on contributions, which, in turn,
limits expenditures, plainly impairs freedom of expression. The
integrity of the political system will be adequately protected if
contributors are identified in a
Page 454 U. S. 300
public filing revealing the amounts contributed; if it is
thought wise, legislation can outlaw anonymous contributions.
IV
A limit on contributions in this setting need not be analyzed
exclusively in terms of the right of association or the right of
expression. The two rights overlap and blend; to limit the right of
association places an impermissible restraint on the right of
expression. The restraint imposed by the Berkeley ordinance on
rights of association and, in turn, on individual and collective
rights of expression plainly contravenes both the right of
association and the speech guarantees of the First Amendment.
Accordingly, the judgment of the California Supreme Court is
reversed, and the case is remanded for proceedings not inconsistent
with this opinion.
Reversed and remanded.
[
Footnote 1]
Section 217 of the ordinance defines "measure" as
"any City Charter amendment, ordinance or other propositions
submitted to a popular vote at an election, whether by initiative,
referendum or recall procedure or otherwise, or circulated for the
purposes of submission to a popular vote at any election, whether
or not the proposition qualifies for the ballot."
[
Footnote 2]
It was not clear in 1977 whether § 602 would be enforced. The
prohibition on contributions to ballot measure campaign committees
by corporations and labor unions, § 605, was invalidated in
Pacific Gas & Electric Co. v. City of
Berkeley, 60 Cal. App. 3d
123, 131 Cal. Rptr. 350 (1976). Following
Buckley v.
Valeo, 424 U. S. 1 (1976),
the city repealed a number of sections of the ordinance, such as §
513, which limited expenditures in support of or in opposition to a
ballot measure to the lesser of $7,500 or 10 cents times the number
of registered voters. When revising the ordinance to comply with
these changes, the city mistakenly labeled § 602, the section
challenged in this case, with the notation "do not enforce," but it
corrected this error approximately three months before the election
involved in this case.
[
Footnote 3]
Section 604 states:
"If any person is found guilty of violating the terms of this
chapter, each campaign treasurer who received part or all of the
contribution or contributions which constitute the violation shall
pay promptly, from available campaign funds, if any, the amount
received from such persons in excess of the amount permitted by
this chapter to the City Auditor for deposit in the General fund of
the City."
[
Footnote 4]
To assure public awareness of the sources of support for
committees, § 112 of the ordinance requires the publication of a
list of all contributors of more than $50 in local newspapers twice
during the last seven days of a campaign.
[
Footnote 5]
The value of the right to associate is illustrated by the cost
of reaching the public. Appellants represent that the cost of a
single mailing to each of the 71,088 persons registered to vote in
Berkeley in 1977 was $12,800. App. 32. The cost of a full-page
advertisement in a Berkeley area newspaper, the Independent
Gazette, was $1,620. Note, 79 Mich.L.Rev. 1421, 1433, n. 54
(1981).
[
Footnote 6]
The dissent argues a case not before the Court. Its references
to
Bellotti relate to
corporate contributions; §
602 limits contributions by "
persons." The dissent's
references to
Buckley relate to contributions to
candidates and their committees; the case before us
relates to contributions to committees favoring or opposing
ballot measures.
JUSTICE REHNQUIST, concurring.
I agree that the judgment of the Supreme Court of California
must be reversed in this case. Unlike the factual situation in
First National Bank of Boston v. Bellotti, 435 U.
S. 765 (1978), the Berkeley ordinance was not aimed only
at corporations, but sought to impose an across-the-board
limitation on the size of contributions to committees formed to
support or oppose ballot measure referenda. While one of the
appellants here, Mason-McDuffie, is a California corporation, there
is no indication that the Berkeley ordinance was aimed at
corporations, as opposed to individuals. Therefore, my dissenting
opinion in
First National Bank of Boston v. Bellotti,
supra, which relied on the corporate shield which the State
had granted to corporations as a form of
quid pro quo for
the limitation, does not come into play.
Buckley v. Valeo,
424 U. S. 1 (1976),
holds that, in this situation, there is no state interest which
could justify a limitation on the exercise of rights guaranteed
under the First and Fourteenth Amendments to the United States
Constitution.
Page 454 U. S. 301
JUSTICE MARSHALL, concurring in the judgment.
The Court today holds that a local ordinance restricting the
amount of money that an individual can contribute to a committee
organized to support or oppose a ballot measure violates the right
to freedom of speech and association guaranteed by the First
Amendment. In reaching this conclusion, however, the Court fails to
indicate whether or not it attaches any constitutional significance
to the fact that the Berkeley ordinance seeks to limit
contributions, as opposed to direct
expenditures.
As JUSTICE WHITE correctly notes in dissent, beginning with our
decision in
Buckley v. Valeo, 424 U. S.
1 (1976), this Court has
always drawn a
distinction between restrictions on contributions, and direct
limitations on the amount an individual can expend for his own
speech. As we noted last term in
California Medical Assn. v.
FEC, 453 U. S. 182,
453 U. S. 196
(1980) (MARSHALL, J., joined by BRENNAN, WHITE, and STEVENS, JJ.),
the "
speech by proxy'" that is achieved through contributions
to a political campaign committee "is not the sort of political
advocacy that this Court, in Buckley, found entitled to
full First Amendment protection."
Because the Court's opinion is silent on the standard of review
it is applying to this contributions limitation, I must assume that
the Court is following our consistent position that this type of
governmental action is subjected to less rigorous scrutiny than a
direct restriction on expenditures. The city of Berkeley seeks to
justify its ordinance on the ground that it is necessary to
maintain voter confidence in government. If I found that the record
before the California Supreme Court disclosed sufficient evidence
to justify the conclusion that large contributions to ballot
measure committees undermined the "confidence of the citizenry in
government,"
First National Bank of Boston v. Bellotti,
435 U. S. 765,
435 U. S. 790
(1978), I would join JUSTICE WHITE in dissent on the ground that
the State had demonstrated a sufficient governmental interest to
sustain the indirect infringement on First Amendment
Page 454 U. S. 302
interests resulting from the operation of the Berkeley
ordinance. Like JUSTICES BLACKMUN and O'CONNOR, however, I find no
such evidentiary support in this record. I therefore concur in the
judgment.
JUSTICE BLACKMUN and JUSTICE O'CONNOR, concurring in the
judgment.
The contribution limitations at issue here encroach directly on
political expression and association. Thus, Berkeley's ordinance
cannot survive constitutional challenge unless it withstands
"exacting scrutiny."
First National Bank of Boston v.
Bellotti, 435 U. S. 765,
435 U. S. 786
(1978). To meet this rigorous standard of review, Berkeley must
demonstrate that its ordinance advances a sufficiently important
governmental interest and employs means "
closely drawn to avoid
unnecessary abridgment'" of First Amendment freedoms.
Ibid. (quoting Buckley v. Valeo, 424 U. S.
1, 424 U. S. 25
(1976)).
We would hold that Berkeley has neither demonstrated a genuine
threat to its important governmental interests nor employed means
closely drawn to avoid unnecessary abridgment of protected
activity. In
Buckley, this Court upheld limitations on
contributions to candidates as necessary to prevent contributors
from corrupting the representatives to whom the people have
delegated political decisions. But curtailment of speech and
association in a ballot measure campaign, where the people
themselves render the ultimate political decision, cannot be
justified on this basis.
Nor has Berkeley proved a genuine threat to its interest in
maintaining voter confidence in government. We would not deny the
legitimacy of that interest. Indeed, in
Bellotti, this
Court explicitly recognized that
"[p]reserving the integrity of the electoral process, preventing
corruption, . . . 'sustain[ing] the active, alert responsibility of
the individual citizen in a democracy for the wise conduct of
government,'"
and "[p]reservation of the individual citizen's confidence in
government" are "interests of the highest importance" in ballot
measure elections. 435 U.S. at
435 U. S.
788-789, citing and quoting
Page 454 U. S. 303
United States v. Automobile Workers, 352 U.
S. 567,
352 U. S. 570,
352 U. S. 575
(1967). We did not find those interests threatened in
Bellotti, however, in part because the State failed to
show "by record or legislative findings that corporate advocacy
threatened imminently to undermine democratic processes" or "the
confidence of the citizenry in government." 435 U.S. at
435 U. S.
789-790. The city's evidentiary support in this case is
equally sparse.
Finally, Berkeley does not justify its contribution limit as
necessary to encourage disclosure. We cannot accept the Court's
conclusion that that interest is "insubstantial," given the Court's
concession that,
"when individuals or corporations speak through committees, they
often adopt seductive names that may tend to conceal the true
identity of the source."
Ante at
454 U. S. 298.
Yet Berkeley need not impose a $250 ceiling on contributions to
encourage disclosure so long as it vigorously enforces its already
stringent disclosure laws.
Ante at
454 U. S. 294,
n. 4.
We need say no more in order to reverse. Accordingly, we concur
in the judgment.
JUSTICE WHITE, dissenting.
In
Buckley v. Valeo, 424 U. S. 1 (1976),
the Court upheld restrictions on contributions, but struck down
limits on expenditures in campaigns for federal office that
Congress, the body most expert in the matter, thought equally
essential to protect the integrity of the election process. Two
years later, a bare majority of the Court, substituting its
judgment for that of the Massachusetts Legislature, invalidated
that State's prohibition on corporate spending in referendum
elections.
First National Bank of Boston v. Bellotti,
435 U. S. 765
(1978). Disagreeing with the Court's assumption that those
regulations inhibited the free interplay of political advocacy, I
would have upheld the expenditure limitations at issue in
Buckley and the restrictions contested in
Bellotti.
This case poses a less encompassing regulation on campaign
activity, one tailored to the odd measurements of
Page 454 U. S. 304
Buckley and
Bellotti. Precisely because it
reflects these decisions, the ordinance regulates contributions,
but not expenditures, and does not prohibit corporate spending.
[
Footnote 2/1] It is for that very
reason, perhaps, that the effectiveness of the ordinance in
preserving the integrity of the referendum process is debatable.
Even so, the result here illustrates that the
Buckley
framework is most problematical, and strengthens my belief that
there is a proper role for carefully drafted limitations on
expenditures.
Even under
Buckley, however, the Berkeley ordinance
represents such a negligible intrusion on expression and
association that the measure should be upheld. The ordinance
certainly does not go beyond what I understand the First Amendment
to permit. For both these reasons, I dissent.
I
The Berkeley ordinance does not control the quantity or content
of speech. Unlike the statute in
Bellotti, it does not
completely prohibit contributions and expenditures. Any person or
company may contribute up to $250. If greater spending is desired,
it must be made as an expenditure, and expenditures are not limited
or otherwise controlled. Individuals also remain completely
unfettered in their ability to join interested groups or otherwise
directly participate in the campaign.
Page 454 U. S. 305
The Court reaches the conclusion that the ordinance is
unconstitutional only by giving
Buckley the most extreme
reading and by essentially giving the Berkeley ordinance no reading
at all. It holds that the contributions involved here are, "beyond
question, a very significant form of political expression."
Ante at
454 U. S. 298.
Yet, in
Buckley, the Court found that contribution
limitations "entai[l] only a marginal restriction upon the
contributor's ability to engage in free communication." 424 U.S. at
424 U. S. 20-21.
As with contributions to candidates, ballot measure contributions
"involv[e] speech by someone other than the contributor," and a
limitation on such donations "does not in any way infringe the
contributor's freedom to discuss candidates and issues."
Id. at
424 U. S. 21.
Indeed what today has become "a very significant form of political
expression" was held just last Term to involve only "some limited
element of protected speech."
California Medical Assn. v.
FEC, 453 U. S. 182,
453 U. S. 196,
n. 16 (1981) (MARSHALL, J., joined by BRENNAN, WHITE, and STEVENS,
JJ.). "
Speech by proxy,'" we said, "is not the sort of advocacy
that this Court in Buckley found entitled to full First
Amendment protection." Id. at 453 U. S.
196.
The Court also finds that the freedom of association is
impermissibly compromised by not allowing persons to contribute
unlimited funds to committees organized to support or oppose a
ballot measure. However, in
Buckley, the Court observed
that contribution ceilings
"leav[e] persons free to engage in independent political
expression, to associate actively through volunteering their
services, and to assist to a limited, but nonetheless substantial,
extent in supporting candidates and committees with financial
resources."
424 U.S. at
424 U. S. 28.
Associational rights, it was thought, were seriously impinged only
by expenditure ceilings -- there by virtue of precluding
associations from effectively amplifying the voice of their
adherents, "the original basis for the recognition of First
Amendment protection of the freedom of association."
Id.
at
424 U. S. 22.
See NAACP v. Alabama, 357 U. S. 449,
Page 454 U. S. 306
357 U. S. 460
(1958). The Court's concern that this ordinance will "hobble the
collective expressions of a group"
ante at
454 U. S. 296,
is belied by the fact that appellants, having already met their
campaign budget, ended all fundraising almost a month before the
election.
It is bad enough that the Court overstates the extent to which
First Amendment interests are implicated. But the Court goes on to
assert that the ordinance furthers no legitimate public interest,
and cannot survive "any degree of scrutiny." Apparently the Court
assumes this to be so because the ordinance is not directed at
quid pro quos between large contributors and candidate for
office, "the single narrow exception" for regulation that it viewed
Buckley as endorsing. The
Buckley Court, however,
found it "unnecessary to look beyond the Act's primary purpose,"
the prevention of corruption, to uphold the contribution limits,
and thus did not consider other possible interests for upholding
the restriction. Indeed, at least since
United States v.
Automobile Workers, 352 U. S. 567,
352 U. S. 575
(1957), the Court has recognized that "sustaining the active alert
responsibility of the individual citizen in a democracy for the
wise conduct of government" is a valid state interest. The
Bellotti Court took care to note that this objective,
along with "[p]reserving the integrity of the electoral process
[and] the individual citizen's confidence in government" "are
interests of the highest importance." 435 U.S. at
435 U. S.
788-789.
In
Bellotti, the Court found inadequate evidence in the
record to support these interests, but it suggested that some
regulation of corporate spending might be justified if
"corporate advocacy threatened imminently to undermine
democratic processes, thereby denigrating, rather than serving,
First Amendment interests."
Id. at
435 U. S. 789.
The Court suggested that such a situation would arise if it could
be shown that "the relative voice of corporations ha[d] been
overwhelming [and] . . . significant in influencing referenda."
Page 454 U. S. 307
Id. at
435 U. S.
789-790. It is quite possible that such a test is fairly
met in this case. Large contributions, mainly from corporate
sources, have skyrocketed as the role of individuals has declined.
[
Footnote 2/2] Staggering
disparities have developed between spending for and against various
ballot measures. [
Footnote 2/3]
While it
Page 454 U. S. 308
is not possible to prove that heavy spending "bought" a victory
on any particular ballot proposition, there is increasing evidence
that large contributors are at least able to block the adoption of
measures through the initiative process. [
Footnote 2/4] Recognition that enormous contributions
from a few institutional sources can overshadow the efforts of
individuals may have discouraged participation in ballot measure
campaigns [
Footnote 2/5] and
undermined public confidence in the referendum process.
By restricting the size of contributions, the Berkeley ordinance
requires major contributors to communicate directly with the
voters. If the ordinance has an ultimate impact on speech, it will
be to assure that a diversity of views will be presented to the
voters. As such, it will "facilitate and enlarge public discussion
and participation in the electoral process, goals vital to a
self-governing people."
Buckley, 424 U.S. at
424 U. S. 92-93.
Of course, entities remain free to make major direct expenditures.
But because political communications
Page 454 U. S. 309
must state the source of funds, voters will be able to identify
the source of such messages and recognize that the communication
reflects, for example, the opinion of a single powerful corporate
interest, rather than the views of a large number of individuals.
As the existence of disclosure laws in many States suggests,
[
Footnote 2/6] information
concerning who supports or opposes a ballot measure significantly
affects voter evaluation of the proposal. [
Footnote 2/7] The Court asserts, without elaboration,
that existing disclosure requirements suffice to inform voters of
the identity of contributors. Yet, the inadequacy of disclosure
laws was a major reason for the adoption of the Berkeley ordinance.
Section 101(d) of the ordinance constitutes a finding by the people
of Berkeley that
"the influence of large campaign contributors is increased
because existing laws for disclosure of campaign receipts and
expenditures have proved to be inadequate."
Admittedly, Berkeley cannot present conclusive evidence of a
causal relationship between major undisclosed expenditures and the
demise of the referendum as a tool of direct democracy. But the
information available suffices to demonstrate that the voters had
valid reasons for adopting contribution ceilings. It was on a
similar foundation that the Court upheld contribution limits in
Buckley and
California Medical Assn. v. FEC,
453 U. S. 182
(1981). In my view, the ordinance survives scrutiny under the
Buckley and
Bellotti cases.
II
There are other grounds for sustaining the ordinance. I continue
to believe that, because the limitations are content-neutral,
Page 454 U. S. 310
and because many regulatory actions will indirectly affect
speech in the same manner as regulations in the sphere of campaign
finance,
"the argument that money is speech, and that limiting the flow
of money to the speaker violates the First Amendment, proves
entirely too much."
Buckley, supra, at
424 U. S. 262
(WHITE, J., concurring in part and dissenting in part). Every form
of regulation -- from taxes to compulsory bargaining -- has some
effect on the ability of individuals and corporations to engage in
expressive activity. We must therefore focus on the extent to which
expressive and associational activity is restricted by the Berkeley
ordinance. That First Amendment interests are implicated should
begin, not end, our inquiry. When the infringement is as slight and
ephemeral as it is here, the requisite state interest to justify
the regulation need not be so high.
The interests which justify the Berkeley ordinance can properly
be understood only in the context of the historic role of the
initiative in California. "California's entire history demonstrates
the repeated use of referendums to give citizens a voice on
questions of public policy."
James v. Valtierra,
402 U. S. 137,
402 U. S. 141
(1971). From its earliest days, it was designed to circumvent the
undue influence of large corporate interests on government
decisionmaking. [
Footnote 2/8] It
served, as President Wilson put it, as a "gun behind the door" to
keep political bosses and legislators honest. In more recent years,
concerned that the heavy financial participation by corporations in
referendum contests has undermined this tool of direct democracy,
the voters of California enacted by
Page 454 U. S. 311
initiative in 1974 the Political Reform Act, which limited
expenditures in statewide ballot measure campaigns, [
Footnote 2/9] and Berkeley voters adopted
the ordinance at issue in this case. The role of the initiative in
California cannot be separated from its purpose of preventing the
dominance of special interests. That is the very history and
purpose of the initiative in California, and, similarly, it is the
purpose of ancillary regulations designed to protect it. Both serve
to maximize the exchange of political discourse. As in
Bellotti, "[t]he Court's fundamental error is its failure
to realize that the state regulatory interests . . . are themselves
derived from the First Amendment." 435 U.S. at
435 U. S.
803-804 (WHITE, J., dissenting).
Perhaps, as I have said, neither the city of Berkeley nor the
State of California can "prove" that elections have been or can be
unfairly won by special interest groups spending large sums of
money, but there is a widespread conviction in legislative halls,
as well as among citizens, that the danger is real. I regret that
the Court continues to disregard that hazard.
[
Footnote 2/1]
As originally passed by the voters, the Berkeley ordinance
restricted expenditures as well as contributions to ballot measure
campaigns. Following
Buckley v. Valeo, 424 U. S.
1 (1976), and the California Supreme Court's
invalidation of statewide expenditure limitations in ballot measure
campaigns,
Citizens for Jobs & Energy v. Fair Political
Practices Comm'n, 16 Cal. 3d
671, 547 P.2d 1386 (1976), the city of Berkeley repealed the
expenditure limitations. In addition, the measure's original
prohibition on corporate and labor union contributions to ballot
measure campaigns was invalidated.
Pacific Gas & Electric
Co v. City of Berkeley, 60 Cal. App. 3d
123, 131 Cal. Rptr. 350 (1976).
[
Footnote 2/2]
The California Fair Political Practices Commission has reported
that campaign contributions from private individuals in the
November, 1980, general election totaled only one-half of the
individual contributions given during the 1978 general election,
and represented only 5% of all the contributions made. California
Fair Political Practices Commission, Campaign Contribution and
Spending Report (1981). The chairman of the Commission concluded
that the figures demonstrate an "
alarming, yet steady, erosion
of the private individual as a force in the political process.'"
California Fair Political Practices Commission's Press Release
81-14, May 28, 1981. See also 454
U.S. 290fn2/3|>n. 3, infra.
[
Footnote 2/3]
In a 1978 initiative over the construction of an oil storage
terminal in Long Beach, Cal., Standard Oil of Ohio "contributed"
all $864,568 spent by the Long Beach Civil Action Committee in
support of the measure; opponents spent $17,721. S. Lydenberg,
Bankrolling Ballots: The Role of Business in Financing State Ballot
Question Campaigns 37 (1979).
In 1980, three ballot measures were rejected by California
voters statewide. One was an initiative which sought to
circumscribe smoking in public places. The committee supporting the
measure collected $676,216; $518,337 in contributions under $1,000.
Id. at 33. An opposing group, Californians Against
Regulatory Excess, collected over $2,750,987. Of this amount, over
$2.5 million was contributed in amounts of over $10,000, and four
tobacco companies contributed between $300,000 and $1 million each.
S. Lydenberg, Bankrolling Ballots: Update 1980, pp. 44 45
(1981).
A second example is an initiative which would have taxed large
energy companies to provide revenue to finance public
transportation and to develop alternative energy sources.
Californians for Fair Taxation, an association opposed to the
measure, received nearly $6 million in contributions, of which
approximately $5 million was given by large corporations.
Proponents mustered but $464,000.
Id. at 50-51.
The third measure, like the initiative in this litigation,
concerned rent control. Proponents, who sought to repeal existing
rent control ordinances, gathered $6,867,108, mostly in
contributions over $1,000; opponents collected $195,496, mostly in
contributions under $1,000.
Id. at 91-101.
[
Footnote 2/4]
Several studies have shown that large amounts of money skew the
outcome of local ballot measure campaigns. Professor Lowenstein's
investigation found that, of 15 propositions supported by
significant one-sided spending, defined as spending of at least
$250,000 and twice as much as the opposite side, 7 were successful
and 8 were defeated. On the other hand, of 10 propositions opposed
by significant one-sided spending, 9 were defeated and only 1 was
successful. D. Lowenstein, Campaign Spending and Ballot
Propositions (delivered at annual meeting of American Political
Science Association, New York City, Sept. 5, 1981). A study of
three Colorado initiatives found that, in each of the races, the
pro-initiative side held a commanding lead which it lost as the
campaign progressed. Corporate-backed opposition forces heavily
outspent their counterparts. On election day, each initiative was
defeated. Mastro, Costlow, & Sanchez, Taking the Initiative:
Corporate Control of the Referendum Process Through Media Spending
and What to Do About It, 32 Fed.Comm.L.J. 315 (1980).
See
also J. Shockley, The Initiative Process in Colorado Politics:
An Assessment (1980). Nationwide, a study of 19 recent campaigns
found that the side with corporate backing outspent opponents by
better than 2 to 1 in 15 campaigns, and won in 12 of them. S.
Lydenberg, Bankrolling Ballots: Update 1980 (1981).
[
Footnote 2/5]
Voter turnout in Berkeley municipal elections has decreased from
65.9% in April, 1973, to 45.6% in April, 1981. Brief for Appellees
7.
[
Footnote 2/6]
See Public Communications Office, Federal Election
Commission, Campaign Finance Law 81 (1981).
See also
Mastro, Costlow, & Sanchez,
supra, at 353-354.
[
Footnote 2/7]
See Brown v. Superior Court, 5 Cal. 3d 509,
522, 487 P.2d 1224, 1232 (1971) ("A ballot measure is devoid of
personality, and voters who seek to judge the merits of issues by
reliance on the personality of those supporting different points of
view can do so only if they are made aware, prior to election, of
those who are the real advocates for or against the measure").
[
Footnote 2/8]
See V. Key & W. Crouch, The Initiative and
Referendum in California 425-432 (1939); Lee, California, in
Referendums: A Comparative Study of Practice and Theory 87-88 (D.
Butler & A. Ranney eds.1978); Note, The California Initiative
Process: A Suggestion for Reform, 48 S. Cal.L.Rev. 922, 923 (1975)
("The primary motivation for the initiative process in California
was the public's desire to counter the lobbyist, the conduit of
legislative influence exercised by and for economic and other
special interests").
[
Footnote 2/9]
Political Reform Act of 1974, Cal.Gov't Code Ann. § 81000
et
seq. (West 1976).
See 454
U.S. 290fn2/1|>n. 1,
supra.