Labor's Educational & Political Club-Independent v. Danforth

RENDLEN, Judge,

dissenting.

On reconsideration of the majority opinion, I have determined that valuable portions of the Election Campaign Expenditures Act remain viable and furnish a workable statutory scheme, readily severable from those sections otherwise struck down. In this effort, able assistance was furnished by numerous suggestions from various sources filed in support of the motions for rehearing. For the reasons following, I respectfully dissent.

Analysis of “live”1 portions of the Act (Chapter 130, RSMo Supp.1974) reveals they in large measure fulfill the plan adopted by an overwhelming majority (more than 70%) of the voters in the 1974 Initiative Election. Clearly it was intended that if partial nullification occurred, portions of the Act remaining were to be severed and retained. This clear intention to save the Act is found in the severability clause2 and in the independent nature of the Act’s enforceable features.

Though the majority has struck that part pertaining to ceilings on spending limits and the disclosure requirement as to candidates’ personal income,3 four additional features or parts of the plan for election control remain essentially unscathed. These contain the heart and central theme of the Law, i.e., the strict accounting and public reporting of political monies by candidates and committees.

The four additional identifiable features of the Act, though interrelated, are independent. They (together with the stricken portion) are: I. Candidates and political committees must strictly account for all political monies received and expended. II. Public disclosure of such accounts are required before, during and after a campaign. III. Important new constraints on the political spending practices of corporations, *352banks, trust companies and labor organizations. IV. Establishment of a “Missouri Elections Commission” with statewide regulatory, rule making, investigative and enforcement powers. V. Spending ceilings on candidates and their committees, declared invalid by the majority under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

I cannot agree with the sweeping conclusion of the majority that in the four “live” parts (listed first above) “we cannot find an act which is complete and susceptible of constitutional enforcement.” In fulfilling our duty to harmonize and where possible identify workable portions as expressions of the people’s will, much that remains is “complete and susceptible to constitutional enforcement . . . which the (people) would have enacted if (they) had known that the exscinded portions were invalid.” State ex rel. Enright v. Connett, 475 S.W.2d 78 at 81 (Mo.banc 1972). This conclusion is reached by application of the time honored rule: “when the unconstitutional portion is stricken out, [if] that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” (Emphasis added.) Household Finance Corporation v. Shaffner, 356 Mo. 808, 203 S.W.2d 734, 737 (banc 1947).

THE SEVERABILITY ISSUE

Adopted through the initiative process, the Act was arranged by the reviser of statutes in 16 sections. Those sections contain 95 subsections plus 45 paragraphs totaling 140 parts, of that number only 18 were stricken by the majority for reasons other than non-severability. Qualitatively and quantitatively a substantial workable basis (more than 85%) of this sorely needed election control plan remains.

To point up the broad range and workable quality of the Act’s “remaining” sections, I now examine its several features.4

FEATURE I

STRICT ACCOUNTING PRACTICES REQUIRED OF CANDIDATES & COMMITTEES

Section 130.020 contains eight subsections with several paragraphs owhich remain intact.5 Many valuable aspects of the law, warranting retention are found in this section. They deal with collection and distribution of anonymous contributions, and safeguards against abuses in this area of campaign financing. This section also provides for disclosure of indirect contributions and requires that cash contributions in the amount of $50 or more from an individual be accompanied by contribution statements on forms approved by the Commission. Further, no candidate may accept a contribution from a political committee of more than $100 unless the contribution is accompanied by a written statement setting forth the full name and address of each person who has contributed more than $25 of the contribution.

Section 130.025 — Subsections 1, 2, 3, 4 and 6 (subsection 5 was otherwise invalidated) provide comprehensive control requirements essential for the financial reporting process by political committees. Committees must appoint a treasurer who shall properly account or be removed and no contributions are to be received until (1) the *353name and address of the treasurer, (2) the names of candidate or candidates it supports or opposes and (3) the name and address of the bank it will use as a depository are certified to the “appropriate officer.” As a further control device, no contributions or expenditures shall be made except through the treasurer. Subsection 6 controls the candidate utilization of more than one committee to support his candidacy. These and related sections provide important restraints to prevent recurrence of well known abuses in the Missouri election process. These safeguards against sub-rosa routing of political monies should be retained.

Section 130.030 — Records and accounts required — Commission may inspect This section, coupled with § 130.035 (the reporting section), and § 130.045 (time for filing reports) are keys to the statutory scheme. The section contains six subsections (with several paragraphs) requiring that each candidate and political committee maintain records and accounts, lists of contributions, information showing whether the contributor is a member of the immediate family, names and addresses of persons to whom amounts were paid or promised, and listings of all anonymous contributions received (including those accepted, those returned to the donor and those transmitted to the state treasurer). This section also requires the candidate to notify the appropriate officer of the name and the address of the depository where the monies received from contributions are to be kept, and that all contributions must be deposited in a named bank and campaign accounts must be current within ten days.

Power is vested in the Commission to promulgate rules and regulations as to bookkeeping procedures. All records of contributions and expenditures shall be kept.for at least two years following the election or after the last supplemental statement filed and, on written demand of the Commission, a candidate or a treasurer shall retain such records until an audit has been completed by the Commission. The treasurer is responsible for the committee’s compliance with the requirements of the section. This designated officer is raised to a level of responsibility and accountability under the law which provides a focal point for control. The majority opinion offers no explanation or acceptable rationale for holding these sections do not constitute a severable working plan.

FEATURE II

A — CANDIDATES AND COMMITTEES REQUIRED TO PUBLICLY DISCLOSE AND REPORT CONTRIBUTIONS AND EXPENDITURES

Section 130.035 relates to candidates filing financial reports and the contents of those reports. This is an indispensable feature of any meaningful election reform act. It requires that every candidate sign and file sworn written reports (at the times prescribed in section 130.045) setting forth contributions received and expenditures made by the candidate while endeavoring to secure a nomination or election. Those reports must include: (1) All contributions, including transfer of funds from previous campaigns with the names and addresses of contributors, the amount contributed, and the dates the contributions were received. (Those contributing in the aggregate less than $25 need not be listed, but instead “may be grouped as one item and so identified.”) (2) All expenditures made by the candidates and the names and addresses of the persons to whom the amounts were paid or promised. (3) All anonymous contributions which were transmitted to the state treasurer, the amount of each such contribution and the date transmitted. (4) Any business or investment exceeding $1,000 in value.6

Political committees are similarly required to report and penalties are provided for non-compliance.

*354Section 130.040 prescribes exemptions from reporting contributions and expenditures for any candidate (or political committee) who “does not in the aggregate receive more than $500 for any election” and who files the necessary exemption affidavit. See Missourians for Honest Elections v. Missouri Elections Commission, 536 S.W.2d 766 (Mo.App.1976).

B — TIME FOR FILING REPORTS

Section 130.045 specifies the following times for filing financial reports: First not later than 40 days before the date of election; second not later than 7 days before said date and third, a report 30 days after an election. The period to be reported commences early (i.e., from the date a person “became a candidate”, § 130.045.2) and continues through the election. From this broad system of public reporting, the electorate may make timely candidate evaluations by examining the pre-election financial reports.7 This stands in marked contrast with the old law (section 129.230, RSMo 1969), which requires only that a candidate or committee file financial reports one month after the election. The old system affords no opportunity for the electorate to obtain the vital information concerning the candidates prior to the time of voting. Widespread criticism of this ineffective “after-the-fact” reporting scheme led to the promulgation and adoption of § 130.045 by the initiative process in 1974. In addition, the after-the-fact reporting requirement of the old law was often circumvented by the device of “one-man committees ”. Such one-man committees could conceal their activities because only committees of “two men or more” were required to report, § 129.200, RSMo 1969. United States v. Pipe Fitters Local No. 562, 434 F.2d 1116, 1121 (8th Cir. 1970) involved the criminal prosecution of union leaders for violating 18 U.S.C. § 602 by using union funds for political contributions. From that case we learn that more than $1,200,-000 were contributed by union members between 1963 and 1968, to a bogus independent political fund which was actually an arm of the union. Part of the fund was contributed to candidates’ campaigns for federal offices. If this had occurred in connection with state candidates’ campaigns following 1974, it would have constituted a violation of § 130.020.5. Moreover, under § 130.035.2 such contributions to state political candidates must now be reported and could not be circumvented by “one man” committees, as possible under the old “Corrupt Practices Act.” (Section 129.200, supra.) By the majority’s action, the indispensable reporting provisions of Chapter 130 are lost and Missouri is thrust into the lamentable situation which led the aroused electorate to adopt Chapter 130 in 1974.

To augment the accounting and disclosure requirements of the Act, § 130.050 assigns the Secretary of State to assist the Commission in development of forms, publishing and furnishing manuals setting forth uniform bookkeeping methods, disseminating information, preserving reports, compiling statistics and with the responsibility for examining each report and statement filed in his office to determine “if the statements are properly completed and filed within the time required” by the law. The Secretary of State is further clothed with authority to report violations to the Commission.

FEATURE III

PROHIBITIONS AGAINST CORPORATIONS, UNIONS, TRUST COMPANIES AND BANKS CONTRIBUTING DIRECTLY OR INDIRECTLY TO ANY CANDIDATE

Section 130.020.5 prevents financial institutions and corporations from expending or contributing their earnings or assets to any candidate. Similarly, labor unions are not permitted to use its funds or the dues collected from its members for such purposes. Such constraints do not apply to voluntary *355contributions or expenditures by individual employees or union members. This valuable safeguard for the Missouri election process is lost by the majority’s denial of the principle of severability.

FEATURE IV

ESTABLISHMENT OF THE “MISSOURI ELECTIONS COMMISSION” WITH STATEWIDE AUTHORITY AND RULE MAKING POWERS

The “Missouri Elections Commission” is established by § 130.055 prescribing the qualifications, appointment, term, compensation, and similar features concerning its members. An executive director is to be appointed to serve at the pleasure of the Commission. Most importantly, § 130.060 vests authority in the Commission to promulgate “rules and regulations” to carry out the policies and purposes of the Act, establish procedures for handling complaints, publish advisory opinions, and bring civil actions as appropriate to control violations or threatened violations of the Act. In addition, general machinery for the operation of the Commission is provided in § 120.065.

FEATURE V

CANDIDATE AND COMMITTEE SPENDING CEILINGS

Section 130.015 deals with spending “ceilings” as to candidates and political committees. The majority, applying Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), invalidated subsections 1, 2 and 5 but apparently left intact subsections 3, 4 and 6 of § 130.015. However, removal of 1, 2 and 5 strips the remaining subsections of their vitality. Also stricken are those spending limits as to candidate, his family or political committee in § 130.020(7) and § 130.020(8) and related sections 130.025.5 and 130.025.7. Similarly § 130.070(1) was invalidated under the Fourteenth Amendment to the United States Constitution and Art. I, § 2 of the Missouri Constitution. Nullification of these sections effectively removed the limits on spending from the Act. However, the remaining features of the Act are severable and should be retained.

Section 130.085 — Severability Clause. It is here provided that if any section of the Act is held invalid such invalidity shall not affect other provisions of the Act “which can be given effect without the invalid provisions . . . and to this end the provisions of Section 130.010 to 130.085 are declared severable.” This section can best be described as an expression of the voters intent that if specific sections are declared constitutionally infirm, the remaining portions should, if possible, be saved. From this we sense the purpose and belief of the electorate that the four features of the Act (I, II, III & IV, supra) can and were intended to stand alone, if V was nullified. To attain this purpose, the principal of sever-ability should be applied. I respectfully submit that the sections of the Act discussed above which have been nullified only for want of severability, should instead be declared valid, enforceable statutes of our state.

THE VAGUENESS ISSUE

The sections of the Act remaining after excision of the spending ceiling feature (Feature V, supra) contain many references to the terms to expend and to contribute. A reading of the Act, whether casual or careful, presents no difficulty arising from the use of these terms. They are used in their ordinary sense. To say, as does the majority, that they are vague and ambiguous is unjustified. The majority fails to indicate an instance of such vagueness, except through its troubled and erroneous treatment of section 130.010[4]. This misplaced reliance on the so-called “vagueness” of section 130.010[4] is the false premise underlying the majority’s insistence that features I, II, III & IV be stricken.

The majority’s conclusion stems from the mistaken notion that the terms are defined in § 130.010[4], and that the definitions are unacceptably vague, permitting the terms to be used interchangeably throughout the *356Act. Such is not the case. The terms to contribute [contribution] and the term to expend [expenditure] are not defined in the subsection. A detailed line by line review reveals the terms are not defined at any place in the Act. While it must be conceded § 130.010[4] is placed in the “definitions” section of the Act, this does not alter the fact that the subsection [4] offers no definition of any term contained therein and is not a definition section. It does not define the verbs to expend or to contribute by any term describing action. A noun does not define a verb; another verb depicting action is required. Subsection [4] merely lists things of value which when contributed or expended bring it within the purview of the Act. Stated otherwise, if one of the things of value listed in 130.010[4] is contributed or expended, such transaction [i.e., the act of contributing such thing or expending such thing] is subject to Chapter 130, the Election Campaign Expenditures Act. The following nouns appearing in the subsection function as the object of either the act of expending or of contributing but do not define either verb. They are as follows:

(1) advance, (2) conveyance, (3) deposit, (4) distribution, (5) transfer of funds, (6) payment, (7) gift, (8) pledge, (9) subscriptions of money or (10) anything of value; and they include (but are not limited to): (1) the candidate’s own money or property, (2) loans, (3) cancellations of loans, (4) expenses and receipts from fund raising events, (5) purchase of advertising, (6) payment of compensation by a third party for services given to a candidate, (7) money from the sale of goods or services, (8) money from rebates or refunds, and (9) contracts to make contributions or expenditures.

In addition, some services or other objects are specifically excluded from the examples of contribution such as uncompensated services by speakers, writers or publishers, internal dissemination of information by a union, corporation or other organization to its members, shareholders or employees; “home hospitality”, voluntary personal services by volunteer campaign workers; and incidental personal expenses incurred by volunteer workers. Also, expenditures by political organizations not linked to a particular candidate, for office overhead, salaries of full time staff members, purchase of office equipment, rent and other normal operating expenses are not attributed to any candidate for the purposes of the Act.

It is thus apparent that the verbs to contribute and to expend are used throughout the Act in their common and usual sense or meaning of the terms as follows:

1. To contribute: = to give or to lend or to furnish to a common fund or to bring about a common result.
2. To expend: = to pay out, to distribute, to spend, to consume by using up. See the Oxford English Dictionary, Compact Edition, Volume I. See also Webster’s New World Dictionary, Second College Edition, 1974, and Webster’s Third New International Dictionary, 1976.

The terms as they appear in context are readily understood. It strains credulity to say the use of these verbs render the entire statute remaining non-severable or unconstitutionally vague. I would hold those parts of the Act exclusive of § 130.035(5) and (6) and those not nullified by force of Buckley v. Valeo, supra, severable features of the Act.8

My determination that portions of the Act are severable revives a number of contentions not reached by the majority because of its invalidation of the entire Act. Those contentions challenge “live” sections of the Act on other grounds than non-sever-ability. I have considered such contentions and find them without merit; it would, however, serve no purpose to burden this dissent with a discussion of those issues.

The majority ignores the presumption of statutory validity and does violence to the long standing principle of severability of legislative acts. The severable features of *357the Act should be preserved. For these reasons, I must respectfully dissent.

. For convenient reference, the expressions “live” or “viable” sections (or similar terms) when employed in this dissent, refer to those sections nullified only by the majority’s application of a concept of non -severability. The expression “stricken sections” (or similar terms) refers to those sections found unconstitutional for reasons other than non-severability.

. Section 130.085: Severability Clause — “If any provision of sections 130.010 to 130.085 or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of sections 130.010 to 130.085 which can be given effect without the invalid provision or application, and to this end the provisions of sections 130.010 to 130.085 are declared severable." (Emphasis supplied.)

. The 18 sections stricken by the majority, for reasons other than non-severability, deal only with: (1) The spending ceilings of the Act, which were nullified by application of the ruling by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and (2) The much criticized subparagraphs 130.035.1(5) and (6), which dealt solely with the requirement that candidates must report their sources of personal income. These subparagraphs were stricken as constitutionally impermissible invasions of privacy. It should be specially emphasized that these requirements for reporting sources of personal income were separate and apart from the reporting requirements as to political contributions received by the candidate. The latter feature remains.

In Chamberlin v. Missouri Elections Commission, 540 S.W.2d 876 (Mo.banc 1976), this court upheld § 130.035.1(5) and (6) as facially valid, and rejected the constitutional challenge made to those sections. This because petitioner’s “claim of harm” was “highly speculative” and failed for want of proof to justify “the claim of anticipated harm and unconstitutional application.” l.c. 881. The record in the case at bar is weaker than that in Chamberlin. Petitioner here failed to present any facts „of probative value showing harm. Its position is less than “highly speculative”, it is “completely speculative”. Yet the court, without regard to its decision in Chamberlin reverses its stance on the issue.

. The first section of the Act, § 130.010, contains 11 numbered subsections and seven paragraphs defining the terms, appropriate officer, candidate, commission, immediate family, labor organization, official committee, person, political committee, political committee treasurer or committee treasurer, and public office or office.

Subsection 130.010[4], stricken by the majority for “vagueness” is not a true definition section, and was inappropriately included in the definition section. This will hereinafter be discussed in detail. Notwithstanding the majority’s ruling as to subsection 4, ten other important subsections of 130.010 remain whole.

. Only subsections 7 and 8 relative to spending limits as to a candidate, his family or political committee in subsections 7 and 8 are voided. Subsection 9, though not mentioned by the majority opinion, provides penalties for violations of subsections 7 and 8, and is rendered ineffective by their nullification.

. Subparagraphs 1(5) and 1(6) relating to reporting of the sources of personal income were stricken, as discussed supra, for a reason other than non-severability. The removal of these much criticized subsections does not affect the efficacy of the plan incorporated in the other subsections of 130.035.

. Additional comprehensive reporting requirements designed to prevent historic abuses are prescribed by the other subsections of § 130.-045.

. In addition to those invalidated portions mentioned above, the following sections are sufficiently undercut to have lost their vitality with no remaining useful function. They have become surplusage: 130.015(3), 130.015(4), 130.-015(6) and 130.020.9.