concurring in the judgment).3
In a case challenging federal regulation of corporate and labor union solicitation practices on equal protection and First Amendment grounds, the District of Columbia Circuit stated:
“While heightened scrutiny often attends a legislative classification alleged to impinge on First Amendment interests, we reject plaintiffs' argument that the most stringent review standard should apply in this case. Decisions in point may lack perfect consistency and crystal clarity, but they do reveal that the nature and quality of the legislative action determine the intensity of judicial review of intertwined equal protection, First Amendment claims.
Mosley itself enunciated review standards that were not the most exacting, and Buckley v. Valeo drew distinctions bearing on the rigorousness of review based on the character of the several legislative proscriptions the Court scrutinized____ We are therefore confident that the matter before us does not call for a review standard more demanding than this elevated, but not strictest, test: the challenged legislative action must bear a substantial relation to an important governmental interest.”
But even if we do apply strict or exacting scrutiny, see Citizens Against Rent Control, 454 U.S. at 298, 102 S.Ct. at 438, I believe the Colorado statute should be upheld. Despite the undisputed burden that ballot restrictions in candidate cases have had on First Amendment rights, such restrictions frequently withstand strict scrutiny. See Anderson v. Celebrezze, 460 U.S. 780, 788 & n. 9, 103 S.Ct. 1564, 1569 & n. 9, 75 L.Ed.2d 547 (1983). Most often courts find that these limited restrictions are necessary to protect the integrity of the electoral process. Id. Professor Tribe explains:
“Whatever its doctrinal roots, there is a principle to be distilled from American Party [v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1964) ] and Storer [v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)]: in order to keep ballots manageable and protect the integrity of the electoral process, states may condition access to the ballot upon the demonstration of a ‘significant, measurable quantum of community support,’ but cannot require so large a demonstration of support that minority parties or independent candidates have no real chance of obtaining ballot positions____ In appraising the collective burden imposed by access requirements, one must place substantial weight on empirical evidence demonstrating how often minority parties and independent candidates have actually been able to satisfy them.”
L. Tribe, § 13-20, at 783-84 (footnotes omitted). Just as placing too many candidates on a ballot wastes state resources and confuses voters, so does placing numerous initiatives on a ballot. See Anderson, 460 U.S. at 788 n. 9,103 S.Ct. at 1570 n. 9. In my view, the state has used the least restrictive measure to achieve its justifiable goal of insuring there is widespread popular support for any initiative proposition it allows on the ballot. Therefore, I would affirm the district court’s decision.
3.
Although the "speech by proxy” doctrine has never been endorsed explicitly by a majority of the Supreme Court, it continues to receive attention in Court opinions. See FEC v. National Conservative Political Action Comm., 470 U.S. 480, 494-95, 105 S.Ct. 1459, 1467-68, 84 L.Ed.2d 455 (1985).