Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley

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 *304Buckley and Bellotti. Precisely because it reflects these decisions, the ordinance regulates contributions but not expenditures and does not prohibit corporate spending.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 — 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.

*305The 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 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 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 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, 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 196.

The Court also finds that the freedom of association is im-permissibly 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 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 22. See NAACP v. Alabama, 357 U. S. 449, *306460 (1958). The Court’s concern that this ordinance will “hobble the collective expressions of a group” ante, at 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 candidates 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, 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 “[preserving the integrity of the electoral process [and] the individual citizen’s confidence in government” “are interests of the highest importance.” 435 U. S., at 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 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.” *307Id., at 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.2 Staggering disparities have developed between spending for and against various ballot measures.3 While it *308is 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.4 Recognition that enormous contributions from a few institutional sources can overshadow the efforts of individuals may have discouraged participation in ballot measure campaigns5 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 92-93. Of course, entities remain free to make major direct expenditures. But because political communica*309tions 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,6 information concerning who supports or opposes a ballot measure significantly affects voter evaluation of the proposal.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-*310neutral, 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 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, 141 (1971). From its earliest days, it was designed to circumvent the undue influence of large corporate interests on government decisionmaking.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 *311initiative in 1974 the Political Reform Act, which limited expenditures in statewide ballot measure campaigns,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 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.

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).

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 n. 3, infra.

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 initative 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.

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).

Voter turnout in Berkeley municipal elections has decreased from 65.9% in April 1973 to 45.6% in April 1981. Brief for Appellees 7.

See Public Communications Office, Federal Election Commission, Campaign Finance Law 81 (1981). See also Mastro, Costlow, & Sanchez, supra, at 353-354.

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”).

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”).

Political Reform Act of 1974, Cal. Gov’t Code Ann. § 81000 et seq. (West 1976). See n. 1, swpra.