CITIZENS AGAINST RENT CONTROL/COALITION FOR FAIR HOUSING ET AL. v.
CITY OF BERKELEY, CALIFORNIA, ET AL.
SUPREME COURT OF THE UNITED STATES
454 U.S. 290
December 14, 1981, Decided
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.
I
The voters of Berkeley, Cal., adopted the Election Reform Act of 1974 by initiative. The campaign ordinance so enacted placed limits on expenditures and contributions in campaigns involving both candidates and ballot measures. 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)."
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 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, 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. 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 by the least restrictive means available.
We noted probable jurisdiction, and we reverse.
II
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 phenomena 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.
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
[T]he Court stated: "The First Amendment protects political association
as well as political expression." Buckley v. Valeo.
Buckley also made clear that contributors cannot be protected
from the possibility that others will make larger contributions:
"[The] 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 of ideas for the bringing about
of political and social changes desired by the people."' 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.
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.'" 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 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. . . .Buckley thus sustained limits on contributions to candidates and their committees.
In First National Bank of Boston v. Bellotti (1978), we held that a state could not prohibit corporations any more than it could preclude individuals from making contributions 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.
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. 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 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. It is clear, therefore, that § 602 does not advance a legitimate governmental interest significant enough to justify its infringement of First Amendment rights.
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 limit expenditures plainly impairs freedom of expression. The integrity of the political system will be adequately protected if contributors are identified in a 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.
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, 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, 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," 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 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.
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....
Finally, Berkeley does not justify its contribution limit as necessary to encourage disclosure.....
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(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 Buckley and Bellotti. Precisely because it reflects these decisions, the ordinance regulates contributions but not expenditures and does not prohibit corporate spending. 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....